Yilmaz & Anor and Yilmaz

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FAMILY COURT OF AUSTRALIA

YILMAZ AND ANOR & YILMAZ [2013] FamCA 533
FAMILY LAW – SECTION 79A APPLICATION – Stay of proceedings – Whether the applicants’ application should be estopped by operation of the Anshun estoppel principle or by the doctrine of res judicata – what is the meaning of a “hearing on the merits”?
Family Law Act 1975 (Cth)
Family Law Rules 2004
Bigg and Suzie (1998) FLC 92-799
Barker and Barker (2007) FamCA 13
Eastman v R (2008) 248 ALR 149
Henderson v Henderson (1843) 3 Hare 100
In the Marriage of Caska (2001) 28 Fam LR 307
In the Marriage of M N and W A Blackman (1998) 22 Fam LR 416
Martin v Abbott Australia Pty Ltd [1981] 2 NSWLR 430
Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 434
Pagliotti & Hartner [2009] FamCAFC 18
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Prior & Prior 2002 30 FamLR 72
APPLICANTS: Mr A Yilmaz & Ms B Yilmaz
RESPONDENT: Ms C Yilmaz
FILE NUMBER: WOC 532 of 2007
DATE DELIVERED: 2 May 2013
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Le Poer Trench J
HEARING DATE: 8-10 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Ms Goodchild
COUNSEL FOR THE RESPONDENT: Mr Alexander

Orders

  1. The application filed on 4 April 2013 is dismissed.

  2. The respondent’s application for enforcement is listed for allocation of further hearing dates on  17 June 2013

  3. On or before 23 May 2013 the respondent is to file and serve any amended application for enforcement she will rely upon in the hearing to be allocated for same on 17 June 2013. The applicants are to file and serve any response to that application along with any affidavit material in support by 13 June 2013.

  4. Any application for costs arising from these orders, together with evidence in support, is to be filed and served by 23 May 2013. Any response to that application, along with any affidavit material in support, is to be filed and served  by 13 June 2013

  5. Any costs application made pursuant to order (4) hereof is to be listed for hearing on 17 June 2013.

IT IS NOTED that publication of this judgment under the pseudonym Yilmaz and Anor & Yilmaz is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:

Mr A Yilmaz & Ms B Yilmaz

Applicants

And

Ms C Yilmaz

Respondent

REASONS FOR JUDGMENT

Introduction

  1. The application before the Court is that of Mr A Yilmaz (the husband) and Ms B Yilmaz (the husband’s mother). A document titled “Initiating Application (Family Law) Amended 2” was filed on 4 April 2013. It was upon that application the applicants sought to move.

  2. Notwithstanding that the application was filed without the leave of the Court and was a new amendment to that filed (without leave) on 21 March 2013, the respondent Ms C Yilmaz (the wife) did not oppose…

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Details
Case
[2013] FamCA 533
Decision Date

CaseChat Overview and Summary

In the matter of *Yilmaz & Anor and Yilmaz*, heard before Le Poer Trench J, the applicants sought to dismiss an application filed by the respondent. The core of the dispute revolved around enforcement proceedings initiated by the respondent.

The court was required to determine whether the applicants' application to dismiss the respondent's enforcement proceedings should be granted. This involved considering the merits of the respondent's application for enforcement and the grounds upon which the applicants sought its dismissal.

Le Poer Trench J dismissed the applicants' application. The court then listed the respondent's application for enforcement for further hearing dates, directing the respondent to file and serve any amended enforcement application by 23 May 2013. The applicants were ordered to file and serve their response and supporting affidavit material by 13 June 2013. Furthermore, any applications for costs arising from these orders were to be filed and served by 23 May 2013, with responses due by 13 June 2013, and these costs applications were to be heard on 17 June 2013.

Orders

Orders of the court

1.

The application filed on 4 April 2013 is dismissed.

2.

The respondent’s application for enforcement is listed for allocation of further hearing dates on 17 June 2013

3.

On or before 23 May 2013 the respondent is to file and serve any amended application for enforcement she will rely upon in the hearing to be allocated for same on 17 June 2013. The applicants are to file and serve any response to that application along with any affidavit material in support by 13 June 2013.

4.

Any application for costs arising from these orders, together with evidence in support, is to be filed and served by 23 May 2013. Any response to that application, along with any affidavit material in support, is to be filed and served by 13 June 2013

5.

Any costs application made pursuant to order (4) hereof is to be listed for hearing on 17 June 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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