Yilmaz & Anor and Yilmaz - [2013] FamCA 533

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

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

The application filed on 4 April 2013 is dismissed.
The respondent’s application for enforcement is listed for allocation of further hearing dates on 17 June 2013
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.
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
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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FamCA 533
Decision Date: 2 May 2013

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

The application filed on 4 April 2013 is dismissed.

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

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.

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

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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