Yilmaz & Yilmaz
[2014] FamCA 663
•13 August 2014
FAMILY COURT OF AUSTRALIA
| YILMAZ & YILMAZ AND ANOR | [2014] FamCA 663 |
| FAMILY LAW – S105 APPLICATION FOR ENFORCEMENT – application by the wife for enforcement of orders – consideration of the discretionary power of the Court to enforce orders pursuant to section 105 of the Family Law Act (Cth) 1975 – where the respondents’ defence of laches is not established – enforcement orders made in favour of the applicant wife. FAMILY LAW – s79A APPLICATION TO SET ASIDE ORDERS – consideration of the operation of res judicata and Anshun estoppel in family law proceedings – where the respondents are precluded from making an application to set aside orders by virtue of these principles. FAMILY LAW – ORDERS PURSUANT TO S102QB – where the respondents bring ‘vexatious proceedings’ – where the respondents pursue orders without reasonable grounds – where the conduct of respondents has caused delay and detriment to the applicant – orders made prohibiting respondents from instituting proceedings without leave of the Court. | |
| Family Law Act 1975 (Cth) ss 79, 79A, 105, 102Q, 102QB, 102QE, 117B Family Law Rules 2004 (Cth) rules 17.03, 20.07, 20.09 Limitation Act 1969 (NSW) s 17 | |
| Caska & Caska (2002) FLC 92-132 | ||
| APPLICANT: | Ms C Yilmaz | |
| FIRST RESPONDENT: | Mr A Yilmaz |
| SECOND RESPONDENT: | Ms B Yilmaz |
| FILE NUMBER: | (P)WOC | 532 | of | 2007 |
| DATE DELIVERED: | 13 August 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 21 February 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Alexander |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms DD |
| COUNSEL FOR THE SECOND RESPONDENT | Mr Kumar |
Orders
Mr A Yilmaz (1st respondent) and Ms B Yilmaz (2nd respondent) pay to Ms C Yilmaz (the applicant) the sum of $225,000 together with interest calculated on that sum in the manner specified in the order made 21 August 2002 subject to the following additions and restriction. Interest is not to be calculated for the period 2 October 2004 to 18 June 2007. Interest is to be calculated pursuant to Rule 17.03 of the Family Law Rules 2004, as and from the commencement of the operation of that rule (29 March 2004). Interest is to be calculated pursuant to Order 40 Rule 1 of the 1984 Rules until 29 March 2004.
The court notes the wording in order 2.2 contained in the “Consent Orders Under Section 79A Family Law Act 1975” made 21 August 2002 as: “daily interest at the rate set out in Order 40 Rule 1 of the Family Law Rules or, if a rate is not set under that Order, at the rate of 11.3 per cent per annum, calculated from 1 August 2002 until the date of payment.”
The amount of interest owing on the principal sum, as specified in the previous order is to be calculated by a person, selected and engaged by the applicant, being a person carrying on business as an Accountant in the State of NSW. The interest is to be calculated to the date of this order and then there is to be calculated a daily amount which will accumulate as and from the date of the order until the date of payment. If a daily rate cannot be calculated then the accountant is to provide a formula which is capable of being applied by the parties to calculate the amount which will be needed to be paid to satisfy these orders albeit at a date later than the date of the order.
The calculation of interest, as above ordered, is to be provided in a document by the selected accountant, and a copy filed in the Court. The applicant is also, at the time of filing the document, to serve that document upon each of the respondents by ordinary prepaid post, addressed to the last known residential address of each. Service is to be deemed to have occurred on the day the document is posted to each of the respondents.
The respondents, or either of them, are to pay to the applicant all money payable under the orders made herein on or before the expiration of 28 days after service upon them of the document providing the calculation of interest on the principal sum as required by these orders.
Upon the time expiring for the payment to be made by the respondents to the applicant pursuant to this order, the property at E Street, Suburb F is to be sold. The sale is to be conducted by a trustee for sale appointed by the applicant.
The trustee for sale is to be a person, over the age of 18 years, and entitled to carry on business in the State of New South Wales as an accountant or solicitor, who accepts the appointment in writing where the document containing the written consent also contains the remuneration provisions for the trustee. The document is further to annex a copy of these orders. The document is to contain an acknowledgment by the proposed trustee that he/she has read the orders and the terms of the trust and is prepared to accept the appointment as trustee for sale of the subject property.
The trustee for sale is hereby authorised to sell the property at E Street, Suburb F, being the land described in Folio Identifier …, (“the property”) for the best price reasonably obtainable. In the process of selling the property the trustee is empowered to take all steps reasonably required to sell the property including, but not limited to:
(a)Engaging real estate agents and/or auctioneers, on usual terms, to act for the trustee on selling the property;
(b)Engaging lawyers to act on the sale of the property;
(c)Taking all steps necessary to obtain a certificate of title for the property;
(d)Taking all steps necessary to have the title to the property transferred to the name of Ms B Yilmaz as sole registered proprietor, or to the name of the trustee as trustee for sale or any other registered proprietor which may be required in order to permit the trustee to be able to transfer title of the property into the name of a successful purchaser;
(e)Taking any other action which may be required to place the title to the property in a state where the property might be successfully transferred to an incoming purchaser;
(f)Taking whatever steps are necessary to gain vacant possession of the property for the purpose of selling the property (including applying to the Court for a writ of possession);
(g)Approaching the Court for any further orders which may be necessary to complete the sale of the property; and
(h)Incurring expense which may be necessary to place the property in a state of repair or presentation which is reasonably necessary to make the property capable of being inspected by potential buyers.
Upon a sale being effected, the trustee is empowered to cause the proceeds to be paid as follows:
(a)Payment of all sale expenses including real estate agents commissions, and legal costs of sale;
(b)Payment of any costs incurred in preparing the property and the title to the property for sale;
(c)Payment of the fees to the accountant appointed pursuant to these orders to calculate the interest payable to the applicant pursuant to the Court's order;
(d)Payment of the fees charged by the trustee at the rate specified in the agreement entered into by the applicant with the trustee;
(e)Payment to the applicant of all money payable to her pursuant to these orders;
(f)Payment to the applicant of all monies owing to her pursuant to any cost order made in her favour against the respondents collectively or against Ms B Yilmaz, the 2nd respondent, solely; and
(g)(Subject to other orders made herein) Payment of any remainder to Ms B Yilmaz or as she may direct in writing.
In the event two months (or such later time as the Court allows upon application by the wife) has not expired between the date of this order and the date for the distribution of funds to Ms B following the sale of the property, then the trustee is to hold any funds payable to Ms B for that period so as to allow the applicant to complete the assessment of her costs orders against Ms B.
In the event that the respondents, or either of them, fail to pay to the applicant all monies due to her pursuant to these orders by the time specified in these orders, then within seven days of the due date for payment, they are to cause to be delivered to the Manager of the Sydney Registry of the Family Court of Australia the certificate of title for the property.
In the event that the respondents, or either of them, fail to pay to the applicant all monies due to her pursuant to these orders by the time specified in these orders, then within 28 days of that date the respondents and each of them is to vacate the property and remain away from the property thereafter. In departing from the premises the respondents are to ensure the property is not damaged. They are further to ensure the property is left in a clean and tidy state upon their leaving.
Within 14 days of receipt of notice from the trustee for sale appointed pursuant to these orders, the respondents are to cause to be delivered to the trustee at the address set out in the notice, a full set of keys to all locks in the property.
Prior to the departure from the subject property the respondents, or either of them, are to take no action to impede any person attending upon the property at the instruction of the trustee for the purpose of preparing the property for sale.
The applicant has leave to apply to the Court for any further orders as may be necessary to implement the orders herein made or to seek any further order which may be necessary to enforce the orders of the Court including those made herein. Such leave is to extend to the applicant applying for a writ of possession of the property at E Street, Suburb F.
Upon the completion of the sale of the property at Suburb F, as required by these orders, or the payment to the applicant of all funds owing to her pursuant to these orders, whichever first occurs, the respondents or either of them may apply to the Court for discharge of any order which prevents them departing Australia. Such application may be made by providing a copy of same, without the necessity to formally file the application, to the Associate to Justice Le Poer Trench, Family Court of Australia, 97-99 Goulburn Street, Sydney NSW 2000. Upon the applicant confirming the sale of the property has completed, an order will be made by Justice Le Poer Trench in chambers discharging the court orders preventing the respondents from leaving Australia and a copy of such discharge provided to the respondents and to the Australian Federal Police.
Within 14 days from the making of these orders the applicant wife is to provide to the Court by email addressed to … any submission to support the order for costs she seeks against the respondents or either of them. The applicant is to include the quantum of the cost order together with information showing how that figure is calculated. At the time of providing the submission the applicant is to serve a copy of the submission upon the respondents by sending a copy of same to any email address which might be available for them and by sending a copy by ordinary post addressed to each of the respondents at 2/E Street, Suburb F and E Street, Suburb F, respectively. Service will be deemed to be effected on the day of posting.
Within 21 days of receipt of the applicant’s submissions each of the respondents is to send to the Court and to the applicant a submission in response which sets out the cost order sought by each respondent and also provides submissions stating why that order should be made.
Pursuant to section 102QB of the Family Law Act 1975 (Cth) (“the Act”) each of Mr A Yilmaz and Ms B Yilmaz is prohibited from instituting proceedings under the Act (other than an appeal against the orders made herein or an application made pursuant to order 16 hereof) without first obtaining leave from a Judge of the Court.
The Registrar is to ensure that all action which may be taken to alert the Court to the attempted filing of an application by either of the said Mr A Yilmaz and Ms B Yilmaz, without first obtaining leave from a judge to do so, is taken.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yilmaz and Yilmaz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| Family Court of Australia at SYDNEY |
FILE NUMBER: WOC532/2007
| Ms C Yilmaz |
Applicant
And
| Mr A Yilmaz |
First Respondent
Ms B Yilmaz
Second Respondent
REASONS FOR JUDGMENT
Introduction
Upon the reading of these reasons, the objective reader, will “gasp in horror” at the plight of Ms C Yilmaz (also referred to as “the wife” or “Ms C”) in seeking to enforce orders for property division made in her favour on 20 February 2000. She has fought for more than 14 years to pursue what the court has determined is rightfully hers.
In the judgments referred to in these reasons and also as seen in the court record during the time the matter has been before me, this court has granted adjournments at the request of Mr A Yilmaz (also referred to as “the husband” or “Mr A”) and Ms B Yilmaz (also referred to as “the 2nd Respondent” or “Ms B”) in order to ensure they have been given as much opportunity as can reasonably be extended to them to be able to present their case. Such indulgence demonstrates, at least in part, the weight judges of this court feel upon them when asked to deprive persons of their liberty or to deprive an elderly woman of her home. Those in the broader community would, no doubt, consider the latitude given by the court in these proceedings, to Mr A and Ms B Yilmaz, far greater than was necessary.
During the conduct of proceedings in this matter before me I am aware that different lawyers have acted for Mr A and Ms B Yilmaz. I see from other judgments, considered in these reasons that different lawyers acted for those parties in earlier hearings. The only reason for mentioning such a circumstance is to note that each new lawyer introduced to the litigation by Mr A and Ms B Yilmaz had to try and piece together the history of the case and how it was that the different orders made in litigation in this court arose. That seems to be so with the current representation for Ms B. It must be acknowledged that an experienced lawyer, with knowledge of family law, would be perplexed to understand how orders under the Family Law Act 1975 (Cth) (“The Act”) would be made against the property of a stranger to the marriage between Mr A and Ms C Yilmaz. Such a circumstance has occurred in this case. The record, which will be examined in these reasons, states how that occurred.
The circumstances in which orders were made requiring the sale of the property at E Street, Suburb F are quite clear and unambiguous on the court record. Ms B Yilmaz was charged, along with Mr A Yilmaz, with contravening orders of this court. They were found guilty of the charge and each sentenced to a period of incarceration. That outcome occurred because Ms B had been named as a 2nd respondent in proceedings heard by Boland J and brought by Ms C Yilmaz pursuant to section 79A of the Act. Ms C Yilmaz said that the previous orders made by Her Honour were not enforceable in Country D against property which had belonged to Mr A Yilmaz and was situated in that country. She established that Mr A Yilmaz had caused properties which he owned in Country D to be transferred to Ms B Yilmaz. Those properties had been the subject of in personam orders made against Mr A Yilmaz by Boland J in an earlier hearing. Mr A had failed to act as those orders required and had acted contrary to Ms C’s interests under those orders. As a consequence, Boland J made orders which required Mr A and Ms B to provide Ms C with their powers of attorney so that Ms C could sell the Country D properties.
The Contravention Application against Mr A and Ms B was heard by Johnston JR, as he then was. In those proceedings the applicant wife established to the court’s satisfaction that both Mr A and Ms B had not complied with the court’s orders. He made orders on 9 July 2002. He ordered Mr A be imprisoned for a period of 12 months or until he complied with the orders of the court. He ordered Ms B be imprisoned for eight months.
The history of what occurred shortly after the sentences were imposed and before Ms B was to commence her incarceration is set out in the judgment of Moore J dated 13 July 2004.[1] A reading of those paragraphs of the judgment make clear the efforts Boland J went to ensuring an injustice did not occur to Ms B and Mr V Yilmaz (Ms B Yilmaz’s husband) in making consent orders which affected their property on 21 August 2002. It is the order of 21 August 2002, together with the amendment to that order made by Moore J on 13 July 2004 which Ms C seeks to enforce in this hearing.
i)[1] Moore J Judgment 13 July 2004, paragraphs 47, 49 and 50 in particular
The above short piece of history explains how it is that Ms B Yilmaz is before the court as a respondent to the enforcement application of Ms C Yilmaz and how it is that the enforcement is sought against the property of Ms B Yilmaz.
Before the court is the application of Ms C Yilmaz filed 24 May 2013. By that application she seeks enforcement of orders of 21 August 2002, as amended. She seeks the payment of $225,000 together with interest as specified in the order, as from 1 August 2002. She seeks payment of that sum be made within 28 days and if not paid then she seeks the sale of E Street, Suburb F.
Ms C Yilmaz, in her submissions, says there is a potential for the property at E Street, Suburb F to be worth less than the amount owing to her pursuant to the orders. If that be the case Ms C has stated she would accept a transfer of the property to her in total satisfaction of the debt. No acceptance of such an offer was conveyed to the court by the respondents.
The respondent husband (Mr A Yilmaz) and his mother, the 2nd respondent (Ms B Yilmaz), oppose the orders sought by the wife. The husband seeks that the wife’s application be dismissed. The 2nd respondent seeks the application be dismissed and that all prior orders made against the 2nd respondent in this matter be discharged. The foundation in legislation or law upon which the court might make such latter mentioned order is not specified.
It should be noted that although orders were made on 21 February 2014 for the parties to provide written submissions to the court within a time specified, no submission had been provided by Mr A Yilmaz at the time judgment was to be delivered. The court has taken action in relation to that circumstance and that action is set out later in these reasons. Written submissions were received from Mr A Yilmaz on 10 July 2014. Those submissions will be canvassed later in these reasons.
Background Facts
In order to consider the application of Ms C Yilmaz and the order sought by the 2nd Respondent it is necessary to consider some of the judgments which bind the parties.
The judgments requiring consideration are:
·Boland J, 11 February 2000.
·Boland J, 6 October 2000.
·Boland J, 31 October 2001.
·Johnston JR (as he then was), 9 July 2002.
·Boland J, 21 August 2002 (consent orders).
·Moore J, 13 July 2004.
·Le Poer Trench J, 2 May 2013.
· Ainsley-Wallace J, (sitting in the Appeal Division of the Court) 9 October 2013.
All of those relevant judgments were provided to the legal representatives of Mr A Yilmaz and Ms B Yilmaz following the appearance before me on 18 December 2013. No suggestion to the contrary was made by any of the legal representatives at the hearing on 21 February 2014.
A summary of the reasons for the making orders, as set out in the judgments above listed, is as follows.
Orders of 11 February 2000 (Boland J)
In the judgment of Boland J, dated 11 February 2000, the background facts of the case were set out in full. In particular, the findings as to the financial contributions of each of the parties made throughout the marriage were detailed. Each of the parties’ assertions as to property held by the other (particularly in Country D) was set out.
Boland J stated at [92] that the husband has made no reasonable attempt to make a full and frank and complete disclosure to this Court. Not only did the husband fail to disclose properties registered in his name he also demonstrated in the witness box evasiveness and prevarication in disclosing his true financial position. Her Honour stated at [107] that she found the husband “to be an unreliable witness who was evasive in his answers”. Boland J did not accept significant portions of the husband’s evidence.
In respect of the Suburb F property and the involvement of Ms B Yilmaz and her late husband in the proceeding, Boland J noted at [112] that counsel for the wife did not press her initial claim that the husband had an interest in the Suburb F property. Her Honour further stated that she found no direct evidence of the husband making direct financial contributions to the acquisition of that property [115]. At [116] Her Honour noted that in light of the wife not pressing her assertion as to the Suburb F property, it was not necessary to make any finding in relation to the husband’s ability to deal with that property. She noted that the husband held a general power of attorney for each of his parents. Those had been executed in 1986 and 1992, on each occasion, immediately prior to his parents’ departure from Australia.
The judgment of Boland J addressed evidence and assertions of each party as to the acquisition and ownership of properties in Country D (the birth place of all parties to the current proceeding). There were a number of properties located in Country D, about which, there was a dispute as to the beneficial ownership. The husband did not in his Financial Statement disclose any interest in property in Country D. In cross-examination the husband conceded he had a 25 per cent interest in a number of pieces of Country D real estate. The wife asserted his interest in those properties was much larger. The wife provided evidence of the value of the husband’s properties, obtained through court proceedings in Country D. There was no supporting evidence provided in relation the wife’s assertions as to the value of her properties in Country D, however, the judge accepted her assertions.
The orders made by Boland J, on 11 February 2000, included the following:
That the husband shall pay to the wife within 3 months of the date of this order by cash or bank cheque the sum of $170,000 provided that if the husband does not pay the said sum to the wife on or before the due date he shall in addition to the said sum pay the wife interest at the rate prescribed from time to time in the Family Court Rules such interest to be calculated from and including the due date up to and including the date of payment.
The above order was therefore the commencement point for the enforcement orders now sought by the wife. As will be seen later, the consent orders of 21 August 2002 varied all the substantive provisions of the orders made on 11 February 2000.
Additionally, the orders of 11 February 2000 also ordered that “In the event that the husband does not pay the said sum to the wife within four months of the date of these orders, then the wife shall be appointed trustee for sale of” specified properties in Country D. Boland J had concluded the husband was the absolute beneficial owner of the Country D properties listed by the wife in her evidence and in relation to which the husband had alleged he held only a 25 per cent interest.
Boland J further restrained the husband from selling, mortgaging, charging or encumbering any of his (Country D) property until he had paid the $170,000 and any interest to the wife.
Finally and importantly, Boland J ordered: “That on compliance by the husband with order 1 of these orders, that the order 2 of the orders of Justice O’Ryan made 2 August 1999 be discharged.” That order of 2 August 1999 stated as follows:
That until further order the husband (Mr A Yilmaz born … 1951) be restrained from leaving the Commonwealth of Australia and that the Australian Federal Police place the husband (sic) on the Airport Watch List.
Orders of 6 October 2000 (Boland J)
The matter came before Boland J again on 6 October 2000, following a non prosecuted appeal by the husband to the Full Court. Although the husband filed an appeal against the orders made by Her Honour on 11 February 2000, he withdrew the appeal.
The application (filed 25 August 2000) before her Honour, at that time, was the application of the husband. He sought an order which would enable him to leave Australia. At the date it came before Boland J on 6 October 2000, the husband had not complied with the orders made on 11 February 2000. As a consequence of non-compliance with order 1 of 11 February 2000 the order of 2 August 1999 was still operative and consequently the husband was prevented from leaving the country.
The application of the husband, on that date, was that he be granted leave to travel to Country D to finalise the dissolution of the parties’ marriage in Country D. This was said by the husband to be necessary as the Country D courts would not recognise the orders made by an Australian Court. The husband asserted that he needed to be present in person at the proceedings in Country D.
The husband had provided some evidence on the issue, however, the evidence was not in compliance with s 174 of the Evidence Act 1995 (Cth) (evidence of foreign law).
Her Honour refused to allow the husband to leave the jurisdiction, because, inter alia, the husband had no ties to the Australian jurisdiction (no property here and was not entitled to, or in receipt of, social security payments) and had not yet complied with orders made by the Australian Court. She found that the husband did have property interests and an entitlement to a pension in Country D. She queried his bona fides in relation to the proceedings in Australia, as she noted that he had sought advice about the enforceability of Australian Court Orders in Country D in 1998, a time before the property matter was determined.
Orders of 31 October 2001 (Boland J)
Between July and September of 2001, Boland J again heard this matter, this time it being an application by Ms C Yilmaz to vary the orders of 11February 2000 under s 79A of the Act. The Amended Application before Her Honour on 21 September was that Ms B Yilmaz be joined to the proceedings, as second respondent, and that Ms B Yilmaz be required to execute a Power of Attorney in respect of properties transferred to her by the Husband.
Boland J delivered judgment on 31 October 2001. The issues in the matter included whether there had been a miscarriage of justice in the making of the orders on 11 February 2000. The wife raised several grounds for this, including:
b)the husband had obtained advice, prior to the hearing of the property matter, from the Country D Consulate in Australia, as to the enforceability of Australian Court orders in Country D; and
c)the husband had not disclosed that he had given his aunt (living in Country D) a power of attorney in 1998 to sell the Country D properties which were part of the property dealt with in the orders of 11 February 2000.
Her Honour recounted the background facts in relation to the transfer of the properties owned by the husband in Country D to his mother. The husband said in his affidavit evidence that he had given his aunt a power of attorney to sell the properties owned by him in Country D on 21 July 1998. He said that he had learned in the last week of July 2001, that his aunt had sold his properties and used the money for her own purposes. In cross-examination, he said he did not know the new owners of the properties set out in order 2(a) of the orders of 11 February 2000, however, her Honour considered that when the husband was asked about a piece of property, described in order 2(a)(ii) of the orders of 11 February 2000, his answers about whether his mother could be the new owner were evasive.
The husband later gave evidence that his mother had said that she had purchased her and his father’s share in the properties, but denied that the properties were transferred to her name. Evidence from the Country D General Directorate of the Land Titles and Surveying, dated 28 August 2001, stated that the two properties had been transferred to the husband’s mother’s name. The husband’s mother conceded in cross-examination that she had paid money to her sister for her and her husband’s share of the properties and for the payment of the expenses associated with the transfer. Each of the husband and his mother conceded that they had amended the Power of Attorney in about June 2001 as the Aunt’s name had been spelled incorrectly.
Her Honour found that the non-disclosure of the Power of Attorney constituted a miscarriage of justice under s 79A (1)(a) of the Act in that it was a suppression of evidence.
Her Honour found that the husband, with the cooperation of his mother, had transferred to his mother the title of a number of the properties from the list of properties dealt with in the orders of 11 February 2000. Her Honour did not accept that the husband was not aware of the transfer. Her Honour also did not accept that the husband’s mother had provided payment to the aunt, Ms AA, as she had claimed. She further found that the transfer took place after the husband became aware of the s 79A proceedings and that the transfer was made in order to frustrate the wife’s claim.
Her Honour ordered, on that occasion, that each of the husband and his mother take such steps necessary to provide a power of attorney, in favour of the wife, which would enable the wife to sell the subject properties in Country D. She further ordered that the proceeds of that sale be distributed as provided for in the original orders of 11 February 2000.
Orders of 9 July 2002 (Johnston JR)
On 9 July 2002 Johnston JR (as he was then) made orders in the matter, having determined a Contravention Application brought by the wife against the husband and his mother. His Honour found the contravention of the orders made on 31 October 2001 to be established. He made orders that Mr A Yilmaz (the husband) be incarcerated for a period of 12 months from the date of the hearing (or until he complied with the orders), and that Ms B Yilmaz (the 2nd respondent) be incarcerated for a period of 8 months (or until she complied with the orders). Her sentence was to commence on 17 July 2002.
Orders 21 August 2002 (Boland J)
On 17 July 2002, following the making of the orders herein by Johnston JR (as he was then) on that day, Ms B Yilmaz filed an application which sought a stay of the order for her incarceration made 9 July 2002. The stay was said to be required to enable the sale of the property at E Street, Suburb F (said to be the second respondent’s property). The sale proceeds were to be applied to meet payment of $170,000 (the amount of the order of 11 February 2000) to Ms C Yilmaz (the wife). Upon the making of the payment the second respondent, Ms B Yilmaz, sought that orders 1, 2, and 3 (incarceration of the husband and Ms B Yilmaz) of 9 July 2002 be discharged. The orders further set out the requirements for the sale of the Suburb F property.
On 21 August 2002, Consent Orders were entered into before Boland J. It should be noted that the orders state that the applicant in the proceedings was Ms B Yilmaz, and the respondents were Mr A Yilmaz and Ms C Yilmaz, however, the form of “Consent Orders under section 79A Family Law Act 1975”, which was annexed to the orders of the Court, lists Ms C Yilmaz as the applicant and Mr A Yilmaz and Ms B Yilmaz as the respondents. No submission was addressed to that circumstance and it appears to be a mere mistake by the transcriber of the court orders. The description of the parties in the “order document” as opposed to the attached “consent order” is important because of the content of order 2 (as stated below). In that order the court notes that the consent order document was interpreted to “the applicant and first respondent”. Those descriptive words, on that order document, clearly meant Ms B Yilmaz and Mr A Yilmaz.
The orders made 21 August 2002 set out the following:
UPON APPLICATION made to the Court this day AND UPON HEARING the applicant and the first respondent and Counsel for the second respondent
IT IS DIRECTED:
1. That the solicitor for the Applicant and the solicitor for the First Respondent filed a Notice of Ceasing to Act.
IT IS ORDERED:
2.That by consent orders be made in accordance with paragraphs 1 to 8 inclusive of the document entitled “Consent Orders Under Section 79A Family Law Act 1975”, signed by the parties, Counsel for the respondent wife, dated today and filed herein, which has been interpreted to the applicant and the first respondent.
3.That order 2 of the Orders made by me on 7 August 2002 be stayed pending further order of the Court of compliance with the consent orders.
CONSENT ORDERS UNDER SECTION 79A FAMILY LAW ACT 1975
Coram: The Honourable Justice Boland
The First and Second Respondents having defaulted in carrying out obligations imposed on them by the previous orders and having agreed that it is just and equitable to vary the previous orders BY CONSENT IT IS ORDERED THAT:
1. DEFINITIONS
In these orders:
“the agent”means the real estate agent appointed by the Respondents or their solicitors to act on the sale of the property and includes any auctioneer;
“the contravention orders” means the order made by Judicial Registrar Johnston on 9 July 2002;
“The property” means the property at [E Street, Suburb F], New South Wales which is described in Folio Identifier …; and
“The previous orders” means the orders made by her Honour Justice Boland on 31 October 2001;
2.That by way of property settlement, the Respondents provide to the Applicant, on the settlement of the sale of the property, a bank cheque in the amount of:
2.1 $225,000.00; plus
2.2daily interest at the rate set out in Order 40 Rule 1 of the Family Law Rules or, if a rate is not set under that Order, at the rate of 11.3 per cent per annum, calculated from 1 August 2002 until the date of payment.
3. That, upon the Respondents making the payment:
3.1 Orders 1(a), 1(b), 1(c), 1(d), and 1€ of the previous orders are discharged;
3.2The First and Second Respondents will be taken to have complied with the orders of the Court; and
3.3Orders of this Court restraining the Respondents or either of them from leaving Australia, being the order made by O’Ryan J on 2 August 1999 in respect of the First Respondent and By Boland J on 26 October 2001 in respect of the Second Respondent, are discharged;
4.That, if the Respondents do not make to the Applicant the payment set out in Order 2 on or before 26 August 2002, the Respondent must do all acts and things to ensure that:
4.1A real estate agent and solicitor chosen by the Respondents are appointed to act on the sale within seven (7) days of the date of these orders;
4.2The Second Respondent execute all documents requested to be signed by the agent or the solicitor;
4.3The property is placed on the market within two (2) weeks of the date of these orders;
4.4The Respondents accept any offer recommended by the agent;
4.5If an offer is not accepted within four (4) weeks of these orders, the Respondents offer the property for sale by auction within eight (8) weeks of the date of these orders unless it is sold prior to auction.
4.6The reserve price at auction is reasonably obtainable in the opinion of the agent. If it is not reached, the Respondents accept the advice of the agent as to the acceptance of a price.
4.7The proceeds of sale be paid in the following manner and priority:
(a) In payment of commissions and expenses properly payable to the agent;
(b)In payment of legal fees and disbursements of and incidental to the conveyance;
(c)In payment of the amount set out in Order 2 above; and
(d)The balance to the Respondents.
5.If any party to these proceedings refuses or neglects to execute any deed or instrument for the implementation of these orders within seven (7) days of being asked to do so, a Registrar of the Family Court of Australia be appointed to execute the deed or instrument in the name of that party and to do all acts and things necessary to give validity to the operation of the deed or instrument under Section 106A Family Law Act 1975.
6.Each party has liberty to apply on seven (7) days’ notice in relation to the interpretation or implementation of these orders.
7.Upon the Respondents making the payments set out in Order 2, an order be made that each party pay their own legal costs in respect of the proceedings including all proceedings which led to the previous orders and those which led to the contravention orders.
8. The proceedings be removed from the active pending cases list.
It should be noted order 4, above, was set aside on 16 June 2004.[2]
ii)[2] see the explanation in the reasons of Moore J of 13 July 2004
The reference in order 3, as stated above, to order 2 made on 7 August 2002 by Justice Boland is noted by me from the court record as:
2. That pursuant to the orders made by me on 17 July 2002 I further stay orders 1 and 2 of Judicial Registrar Johnston of 9 July 2002 until 21 August 2002.
The order of Justice Boland made 26 October 2001 referred to above in the “consent order” document, refers to order 2 made by Her Honour on that day in the following terms:
That pending further order the second respondent [Ms B Yilmaz] be and is hereby restrained from leaving the Commonwealth of Australia
In relation to the orders made 21 August 2002, I note reference in the hearing before me that there is a transcript of what was said in court on 21 August 2002. I note that part of that transcript was intended to be tendered in evidence in the hearing before me by the wife. That did not occur. Ultimately it is unnecessary to have regard to that transcript. The judgment of Moore J made 13 July 2004 sets out sections of evidence and statements made by the parties on that day and those quotations are from the transcript of 21 August 2002.[3]
iii)[3] see paragraph 67 and following
There were further Applications for orders pursuant to s 79A filed following the making of the consent orders on 21 August 2002. The fate of all those applications was either described in, or determined by, Justice Moore in her reasons published to explain the orders made by her on 13 July 2004. Those applications were filed by:
a)Mr V Yilmaz (Ms B Yilmaz’s husband) on 12 March 2003 listing himself as applicant and all other parties as respondents, seeking Order 4 of 22 August 2002 (the date is a clear mistake and should be read as 21 August 2002) be set aside;
b)Mr A Yilmaz on 10 April 2003 (all parties mentioned, including Mr V Yilmaz and Ms B Yilmaz as second respondent), seeking all orders of 11 February 2000 and 31 October 2001 be discharged, and that all “other consequential orders of the Court in relation to the implementation or enforcement of those orders” (this must inferentially have included the order of 21 August 2002) be discharged; that the parties be declared to have sole right title and interest of all property in their possession at the date the orders are made;
c)Ms B Yilmaz on 10 April 2003 (her application does not list Mr A Yilmaz, but does list Mr V Yilmaz as the first respondent), seeks pursuant to section 79A that order 1(b) made 31 October 2001 be set aside and pursuant to section 79A orders 2, 3, and 4 made 21 August 2002 (in relation to Ms B Yilmaz) be set aside; and
d)Ms C Yilmaz applied for an order under section 79A which became necessary as a result of the consent order entered into between Ms C Yilmaz and Mr V Yilmaz which set aside paragraph 4 of the consent order of 21 August 2002. That order had provided for the sale of the property at E Street, Suburb F. Mr V Yilmaz had not been a party to those orders although Ms B had represented that she had the power/authority to deal with the property as she held a power of attorney from Mr V Yilmaz, her husband.
Orders of 13 July 2004 (Moore J)
Justice Moore made orders on 13 July 2004. Those orders determined the only application pressed by Ms B Yilmaz before her. The husband did not press an application. The application Ms B Yilmaz pressed was filed 10 April 2003. The matter was heard on 9 February and 16-17 June 2004.
In that same hearing the applicant Ms C Yilmaz also sought an order pursuant to section 79A, which order was made as follows:
On the application of [Ms C Yilmaz] pursuant to s79A for a variation of order 2 made on 21 August 2002, the phrase ‘on the settlement of the sale of the property’ is deleted and there is inserted in lieu the phrase ‘within 60 days of 13 July 2004’.
In her reasons Moore J noted that:
a)The husband, Mr A Yilmaz, had elected not to participate in the hearing of the application of Ms B Yilmaz. He had filed an application for orders pursuant to s 79A himself on 10 April 2003, however, he discontinued them on 27 January 2004 “by a notice to that effect filed by his solicitors on his behalf”;
b)An application had been filed by Mr V Yilmaz seeking orders pursuant to s 79A. That application was filed 12 March 2003. Mr V Yilmaz had fallen ill on 9 February 2004, which had caused the hearing to be adjourned. Before its resumption in June 2004, Boland J appointed a case guardian, without contest by the parties. On 16 June 2004, Mr Foster, acting as counsel for the case guardian for Mr V Yilmaz, handed up signed consent orders between Mr V Yilmaz and the wife. Those orders were not consented to by the husband or his mother. Notwithstanding that lack of consent, orders were made by the Court. The effect was that order 4 of 21 August 2002 was set aside. “as between Mr V Yilmaz and Ms C Yilmaz by consent and as against Mr A Yilmaz on an undefended basis”.[4]. The effect must be that the order is still operative against Ms B Yilmaz, the person now being the absolute owner (following the demise of her husband) of the property at E Street, Suburb F.[5]
iv)[4] See paragraph 4 of Judgment of Moore J 13 July 2004.
v)[5] See later the reason for that finding
Her Honour reviewed extensively the previous applications and judgments in the matter, as well as consent orders made on 21 August 2002. In relation to that order, her Honour noted the sale of the E Street, Suburb F property to meet the wife’s property entitlement was first specified in orders made on 17 July 2002 before Boland J. Those orders are important in the historical background to the case now under consideration. The orders were set out in full in paragraph 48 of Her Honours decision (13 July 2004). The application which brought the matter before Boland J on 17 July 2002 was that of Ms B Yilmaz. On that day she was represented by a solicitor. On that day the following orders were made with Ms C Yilmaz, Mr A Yilmaz and Ms B Yilmaz all being parties to the consent orders.
The orders of 17 July 2002 are:
1.Declaration by the second respondent that her interest in the property described in Folio Identifier … and known as [E Street Suburb F] (“the property”) stands charged with payment to the wife of $200,000 or such other amount as may be agreed to be owing to the wife by the first respondent.
2.Order 2 of the Orders made by Judicial Registrar Johnston on 9 July 2002 be stayed until further order.
3.Order 1 of the Orders made by Judicial Registrar Johnston on 9 July 2002 be stayed until further order.
4.Pursuant to Order 3 above that the officer in charge of the Department of Corrective Services be directed to release the respondent husband until further order.
5.That the second respondent be restrained from charging, selling, leasing, mortgaging or otherwise dealing with the property.
6.Direction that the second respondent take such steps and sign such documents required to procure an irrevocable Power of Attorney from [Mr V Yilmaz] which will enable her to deal with the property as if she were the sole proprietor of it within seven days and to provide evidence of such power to the applicant within the same time period.
7.That any Power of Attorney held by the first respondent in respect of the property be revoked by the second respondent and that she procure such revocation by [Mr V Yilmaz] within seven days.
8.That the court notes [Ms C Yilmaz] is the applicant in the substantive proceedings and [Mr A Yilmaz] and [Ms B Yilmaz] are first and second respondents respectively in the substantive proceedings.
Moore J narrated that Ms B and Mr V Yilmaz appealed the consent orders of 21 August 2002, however, the appeal was resolved by an order by consent dismissing the appeal and ordering the appellants to pay the respondents costs of $4,500. That order was made on 11 February 2003.[6] It is, at this distance from the date of the hearing before Moore J, difficult to see how that circumstance left Mr V or Ms B Yilmaz with any legal basis to seek to set the orders (21 August 2002) aside on the grounds they moved upon in the hearing before Moore J or in this hearing.
vi)[6] See paragraph 53 of Judgment of Moore J 13 July 2004
In the application of Ms B Yilmaz, heard by Moore J, Ms B sought to set aside the orders of 21 August 2002 pursuant to s79A(1)(a), being a miscarriage of justice due to “duress” or alternatively “any other circumstance”. The duress in questions was said to be the actions of Boland J on 21 August 2002, which Mrs Yilmaz alleged included Her Honour threatening to send her to gaol if she did not sign “the paper Alexander gave you”. She said there were police officers in the court room and she was so scared she wet herself. Her Honour found that the transcript did not support Mrs Yilmaz’s account. Her Honour was unable accept Ms B Yilmaz as a witness of truth.[7] Her Honour concluded her findings about Ms B Yilmaz in the most condemning of terms. She said “In my assessment, all of the pointers are in the direction of her collusion with her son to thwart her former daughter-in-law from receiving what was judged to be her entitlement to property settlement”.[8]
vii)[7] See paragraph 55 of Judgment of Moore J 13 July 2004
viii)[8] See paragraph 55 of Judgment of Moore J 13 July 2004.
Her Honour set out the submissions made on behalf of Ms B Yilmaz in relation to the factors which Ms B said contributed to the intimidation which she said led her to sign the consent orders on 21 August 2002. Moore J found those submissions were “largely misconceived because they relied on unfounded facts”[9] being:
a)Lack of legal representation: Her Honour found that Ms B Yilmaz had no legal representation as her lawyers found they were unable to continue due to their inability to reconcile their duty to the court and client in light of the substantial change in instructions from Ms B Yilmaz. The transcript also showed that Ms B Yilmaz had, on the previous day, engaged new legal representation however, they had not turned up at court on the day. Her Honour (Boland J) then clarified with Ms B Yilmaz, through an interpreter, that she understood that she was going to represent herself.
b)The threat to send Ms B Yilmaz to gaol: This hearing (on 21 August 2002) was the third time since the making of orders by Johnston JR on 9 July 2002. The two prior hearings resulted in a stay of the orders of Johnston JR. Moore J found that the stay orders made by Boland J were made following “the representation of both legal representatives (i.e. including lawyer for Ms B Yilmaz) that there would be compliance with the order breached and that agreement either would be reached or had been reached on the mechanics of achieving that compliance”. Her Honour (Boland J) sought clarification, following the withdrawal of the solicitors for the husband and his mother (Ms B Yilmaz), as to whether the consent orders were going to be signed. She spoke to Mr A Yilmaz, who said through his interpreter that the reason they came to Court today was to sign the agreement to sell the house and give the money to the wife (Ms C Yilmaz). Her Honour then made “a statement of the reality of his situation”, being that if he did not comply with the orders, then the stay would be lifted and he would return to gaol. Her Honour noted that this exchange took place exclusively with the husband, and nothing Boland J had said could have “operated on her [the mother’s] mind to induce her to sign the consent order.” Her Honour only mentioned the possibility of gaol time after the document had been signed, in order to explain the consequences of not complying with the orders.
c)Ability to negotiate the legal system: At all relevant times, Ms B was supported by an interpreter. Her Honour also found that Boland J clarified with Ms B that she had the consent order document interpreted to her, that she understood that it meant that she must sell the Suburb F property, and that $225,000 was to be paid to Ms C Yilmaz. She replied in the affirmative to each individually posed question. Ms B also agreed that failure to pay could result in a Contravention application and gaol time, and that she would not receive back her passport until she had paid the sum of money. Moore J was cognisant of the mother’s age and language ability, however, concluded that there was nothing said by the Judge on 21 August 2002 (Boland J) which could amount to illegitimate pressure.
d)The pressure came before the signing of the agreement: Moore J set out, with her commentary, the relevant passages of the transcript. She established that prior to the adjournment during which the parties signed the document, the only remark directed at the mother by the Judge was to confirm that she understood that she would be representing herself. Her Honour addressed the parties as to the effects of the orders and the consequences of not complying with the orders. There was no claim made by Ms B as to illegitimate pressure applied by Mr Alexander at that hearing (on 21 August 2002).
ix)[9] See paragraph 66 of Judgment of Moore J 13 July 2004
Following her analysis of the events of 21 August 2002, Her Honour dismissed the application of Ms B, and altered the orders of 21 August 2002 (as sought by Ms C) so that the husband and Ms B pay the wife $225,000 plus interest (as stated in the order of 21 August 2002) within 60 days of 13 July 2004. Those last underlined words were the only additional words added to the order of 21 August 2002. They replaced the words “on the settlement of the sale of the property” which were deleted because the order requiring the sale (order 4) had been discharged by the consent orders made between Ms C Yilmaz and Mr V Yilmaz on 16 June 2002.
The judgment of Moore J, given in written form on 13 July 2004, is very detailed and thoroughly analytical in respect of each and every argument raised by Ms B Yilmaz in the hearing. I do that “body of reasoning” no justice in my fleeting reference to it in these reasons. Any objective reading of the whole of Her Honour’s reasons must leave the reader with an overwhelming appreciation of the thoroughness of the scrutiny of the evidence performed by Her Honour and the compellability of the conclusion reached.
Orders of 2 May 2013 (Le Poer Trench J)
On 2 May 2013, I made orders and delivered reasons in this matter. The judgment was the determination of the application initially filed by both Mr A Yilmaz and Ms B Yilmaz in 2007. That application had been amended with the last amendment being the “Application Amended 2” filed 4 April 2013. They each sought an order seeking the orders made 11 February 2000, 31 October 2001 and 21 August 2002 be set aside pursuant to section 79A and that other orders for property division be made. Clearly the interest of Ms B Yilmaz in the proceeding was to set aside the orders which affected her property and herself.
At the hearing, an application was made by Ms C Yilmaz that the proceedings be stayed on the basis that the matter had been determined (res judicata) by this Court.
I set out a chronology of the court events in this matter, with an emphasis on the previous determinations by the court.
In the hearing before me, the parties agreed to have the determination of the application to set aside the previous orders (section 79A) determined, before being required to address what further orders could be made by the court, should such determination favour the outcome sought by Ms B and Mr A Yilmaz.
Whilst considering all the evidence and submissions in the case, after reserving judgment, I had my Associate provide the parties with a request for further submissions on a specific topic/issue. That request was set out in paragraph 23 of my reasons as follows:
The request for further submission was sent by email to each of the parties’ legal representatives on 12 April 2013 in the following terms:
His honour has asked that I send you a copy of the judgment of Justice Boland delivered 31 October 2001. Amongst other portions of the judgment, your attention is drawn in particular to paragraph 74. That paragraph makes clear in that proceeding the Husband sought to set aside the orders of 20 February 2000 on the basis that the valuation evidence contained in Exhibit E in the original proceeding was false. The consequence of the decision of 31 October 2001 must clearly be to refuse that application of the husband. As such, it would appear that the husband is prima facie estopped from proceeding on his application currently before the court to set aside the orders of 20 February 2000 on the principle of res judicata. Should you have any submission that you wish to make in relation to whether the husband is estopped or not, please provide same by email addressed to my associate within 7 days.
In the determination of the matter then before me I discerned, from the argument, the following identifiable issue:
25. The question which appears to me to arise from the determination of Boland J is whether there was a hearing “on the merits” of the husband’s application to set aside the orders of 20 February 2000. The circumstances, outlined above, further raise for consideration the question of whether an “Anshun” type estoppel may have application: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (“Anshun”).
At paragraphs 57-58 of the reasons I stated:
57.In the judgment of Boland J of 31 October 2001 the following appears at paragraph 74:
74. The husband in his oral response sought orders setting aside the orders for the payment of sum on the basis that the valuation evidence contained in Exhibit E in the original proceedings was false. The husband provided no evidence to support his oral allegation, nor was the wife cross-examined about this assertion.
58.The questions which arise in this matter in relation to the above paragraph are:
•Do the above words now mean that any further attempt of the husband or his mother to set aside the orders of 20 February 2000 or 31 October 2001, on the ground that the valuation evidence presented to the Court for the 11 February 2000 orders were fabricated, give rise to an estoppel as against the husband and his mother in the current proceeding?
•If so, would the estoppel operate because of the principle of res judicata or the principle of Anshun estoppel?
I examined what was meant by a “hearing on the merits” and consequently dealt with the question of whether the applicants were prevented from raising issues not raised in prior hearings resulting from previous s 79A applications.
I found that the application of the husband and his mother must fail on the basis of res judicata and Anshun estoppel, or, should that determination be wrong, on the basis that the husband’s evidence was insufficient to make out the case which the husband put forward.
In my determination I found that the orders of 20 February 2000 and 31 October 2001 ceased to have force and effect upon the making of the consent orders on 21 August 2002 to the extent that there was any inconsistency with the orders of 21 August 2002 (the order of 31 October 2001 having been varied by the consent order). The Consent orders of 21 August 2002 were clearly made pursuant to section 79A of the Act.
Orders of 9 October 2013 (Ainslie-Wallace J )
The husband (Mr A Yilmaz) filed an appeal against my order made 2 May 2013. As it was filed out of time, the matter came before Justice Ainslie-Wallace for her to determine the appellants’ application to appeal out of time.
In the judgment, her honour had regard to the history of the matter, up to and including the application before myself. She then turned to the appeal and its merits, as she held that mere delay in filing is not fatal to the application.
In the judgment, her Honour dismissed the grounds in relation to the valuation evidence, my construction of the effect of the consent orders of August 2002, and the issue of res judicata. In the latter, her Honour stated “to grant leave to extend time to the husband would be futile. He has not demonstrated that his appeal is arguable”.
Her Honour lastly had regard to the matter of prejudice, in which matter she held the view that there would be little prejudice to the husband in refusing to allow him to challenge orders from 2000, 2001 and 2002; and that there would be prejudice to the wife to allow it.
That history being set out I now turn to consider the current application by Ms C Yilmaz for enforcement of the courts orders and the response thereto by Ms B and Mr A Yilmaz.
The Issues
I propose to deal firstly, in this determination, with the response of the husband Mr A Yilmaz and the response of Ms B Yilmaz by which each seeks to avoid the enforcement of the orders made by the court on 21 August 2002.
The order sought by Mr A Yilmaz in his Response filed 12 February 2014 is simplicity in form. It reads:
The Application be dismissed.
The applicant pay the first respondent’s costs of the Application.
The order sought by Ms B Yilmaz in her Response to Application in a Case, filed 11 February 2014 is as follows:
The application to the extent it concerns the Second Respondent be dismissed;
The Applicant pay the Second Respondent’s costs;
All the prior Orders to the extent it concerns the Second Respondent be discharged;
Such further or other orders that the Honourable Court deems fit.
I note that Mr A Yilmaz does not in the orders he seeks ask for an order which sets aside or discharged any order of the court. He simply asks for the application of Ms C Yilmaz be dismissed. Ms B Yilmaz does seek an order that other orders of the court be discharged.
I will now turn to consider the submissions made by or on behalf of the parties to the proceeding.
When the hearing concluded on 21 February 2014 I made the following directions:
I direct that counsel for the wife provide written submissions in support of her application to the Court by close of business on 14 March 2014 with service copies to each of the husband and the second respondent. Such service to be by email to my associate in Word document form.
I direct that he husband and the second respondent respond to those submissions and make any further submissions on behalf of their interests by close of business 4 April 2014. Such service to be by email to my associate in Word document form and to the wife’s legal representative.
I direct that the wife provide any submissions in reply to those of the husband and second respondent by 18 April 2014.
I otherwise reserve my judgment in this matter.
I note that I may require further attendance by or on behalf of the parties in relation any particular matters that might arise from the submissions. If it is possible to deal with it by email request, I will do so, otherwise I will require further attendance.
The wife’s legal representative is to provide to the respondent and the second respondent pages from the transcript of 2002 she wishes to rely upon within 14 days. Any objection to that document is to be notified to the wife’s legal representative on or before 12 March 2014. In the absence of any objection, the pages sought to be tendered are to be attached to the submissions of the wife.
In the event of the husband seeking to tender further evidence in the nature of real property searches, he is to provide to the legal representatives of the wife and the second respondent copies of the documents sought to be tendered within 21 days. The wife and the second respondent have the right to object to the tendering of those documents within seven days of receipt of same. In the absence of any objection, the pages sought to be tendered are to be attached to the submissions of the husband to be provided on or before 4 April 2014.
The section of the Act which empowered the court to make an order for the payment of interest on an order for the payment of money is section 117B. That section was applicable on 21 August 2002, the date of the order referred to in these reasons. That section is still in force at the date of making the orders set out at the commencement of these reasons.
In order to maintain the force and effect of what was sought to be achieved by the original order and also to assist the person who will be required to calculate the amount of interest to be paid pursuant to the order it will be necessary to provide a further order in the following terms:
Interest is to be calculated pursuant to Rule 17.03 of the Family Law Rules 2004 (Cth), as and from the commencement of the operation of that rule.
I will make the orders forecast above.
Costs
Ms C seeks an order for costs. Ms B opposes such order. I propose to make an order requiring each party to provide written submissions in relation to the wife’s application for the respondents to pay the wife’s costs of the hearing. The order will be as follows:
Within 14 days from the making of these orders the applicant wife is to provide to the court by email addressed to … any submission to support the order for costs she seeks against the respondents or either of them. The applicant is to include the quantum of the cost order together with information showing how that figure is calculated. At the time of providing the submission the applicant is to serve a copy of the submission upon the respondents by sending a copy of same to any email address which might be available for them and by sending a copy by ordinary post addressed to each of the respondents at E Street, Suburb F. Service will be deemed to be effected on the day of posting.
Within 21 days of receipt of the applicant’s submissions each of the respondents is to send to the court and to the applicant a submission in response which sets out the cost order sought by each respondent and also provides submissions stating why that order should be made.
ORDER UNDER SECTION 102QB
This is a case which I considered, when making orders in response to the applications before the court, might warrant the making of an order against the interests of the respondents under section 102QB. As such I required each of the respondents to provide evidence and submissions as to why such an order should not be made against them. To achieve the requirement stipulated in section 102QB(4) I had the following letter sent to each of the respondents at their last known residential address together with sending copies of the letter to each of the lawyers who the record shows last appeared for the respondents.
[Mr A Yilmaz & Ms B Yilmaz],
[E Street,
Suburb F …]
NSW.
23 June 2014
Dear Madam and Sir,
His Honour Justice Le Poer Trench has asked that I write to you. He has asked me to bring to your attention that if the application of [Ms C Yilmaz] for enforcement of the court orders made 21 August 2002 is successful it may in the circumstances of this case be necessary for the court to consider making an order against each of you under Part XIB of the Family Law Act. I have been asked to write to you requesting that you place before the court, should you so desire, evidence or submissions setting out why an order under section 102 QB of the Family Law Act 1975 should not be made against you. The particular order you should address is an order prohibiting each of you from instituting proceedings under the Family Law Act against [Ms C Yilmaz]. If the order is made then neither of you would be permitted to commence a proceeding under the Family Law Act against [Ms C Yilmaz] without first obtaining leave from a Judge of the Family Court of Australia.
The sections of the Family Law Act which you should look at when considering what action to take in response to this letter are set out in PART XIB of the Act. By way of assistance to you I set out sections 102Q, 102QB and 102QE of the Act in this letter.
If you wish to be heard in relation to the imposition of the prohibiting order above referred to you need to provide to the Court (Associate to Justice Le Poer Trench) by letter, email, the filing of an Application or some other effective means of communication what you wish to place before the court. That communication or action will be placed before Justice Le Poer Trench for his consideration.
Any application or submission you wish to make must reach the Court by the close of court business on Friday 11 July 2014 in order for it to be taken into account.
FAMILY LAW ACT 1975 - SECT 102Q
Definitions
(1) In this Part:
"appropriate court official" means:
(a) in relation to the Family Court of Australia--the Chief Executive Officer or Principal Registrar of the Court; and
(b) in relation to the Federal Circuit Court of Australia--the Chief Executive Officer of the Court; and
(c) in relation to the Family Court of Western Australia--the Principal Registrar of the Court; and
(d) in relation to any other court--the chief executive officer or principal registrar (however described) of the court.
"Australian court or tribunal" means a court or tribunal of the Commonwealth, a State or a Territory.
"institute" , in relation to proceedings, includes:
(a) for civil proceedings--the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and
(b) for proceedings before a tribunal--the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and
(c) for criminal proceedings--the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and
(d) for civil or criminal proceedings or proceedings before a tribunal--the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.
"proceedings" :
(a) in relation to a court--has the meaning given by subsection 4(1); and
(b) in relation to a tribunal--means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.
"proceedings of a particular type" includes:
(a) proceedings in relation to a particular matter; and
(b) proceedings against a particular person.
"vexatious proceedings" includes:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
"vexatious proceedings order" means an order made under subsection 102QB(2).
(2) A reference in this Part to a person acting in concert with another person in instituting or conducting proceedings does not include a reference to a person who is so acting as a lawyer or representative of the other person.
FAMILY LAW ACT 1975 - SECT 102QB
Making vexatious proceedings orders
(1) This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2) The court may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c) any other order the court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3) The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a) the Attorney-General of the Commonwealth or of a State or Territory;
(b) the appropriate court official;
(c) a person against whom another person has instituted or conducted vexatious proceedings;
(d) a person who has a sufficient interest in the matter.
(4) The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5) An order made under paragraph (2)(a) or (b) is a final order.
(6) For the purposes of subsection (1), the court may have regard to:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c) the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
FAMILY LAW ACT 1975 - SECT 102QE
Application for leave to institute proceedings
(1) This section applies to a person (the applicant ) who is:
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(b) acting in concert with another person who is subject to an order mentioned in paragraph (a).
(2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.
(3) The applicant must file an affidavit with the application that:
(a) lists all the occasions on which the applicant has applied for leave under this section; and
(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
(4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
I record that no submission has been received from either of the respondents in relation to the letter sent to them on 23 June 2014.
The history of this case, in my view, warrants the making of an order against the respondents pursuant to 102QB (2) prohibiting either of them commencing any further proceeding against the applicant Ms C Yilmaz. The effect of such an order would prevent any such litigation being commenced under the Act without first obtaining the leave of the court pursuant to section 102QE.
When the orders were made on 21 August 2002 they required the 2nd respondent to sell the property at E Street, Suburb F in order to satisfy the judgment debt created by the same order. That did not happen. The respondents commenced proceedings in April 2003[12]each seeking to set aside the orders. The second respondent’s application was dismissed by Justice Moore in July 2004. Mr A Yilmaz did not prosecute his application withdrawing it in January 2004.[13] Mr V Yilmaz filed an application on 12 March 2003 seeking to set aside some of the orders of 21 August 2002. That application was settled as between himself and the wife Ms C. The effect of the consent order was to discharge the order for sale of the Suburb F property contained in the orders of 21 August 2002 as it affected Mr V Yilmaz. It should be noted that at the time the orders were made on 21 August 2002 Boland J had raised a concern as to the ability of the 2nd Respondent to pledge the property at Suburb F As security for the requirement to pay the principal sum and interest. She was informed by the respondents that the 2nd respondent held the power of attorney from Mr V Yilmaz and therefore had the power to pledge his interest in the property as she did.
xii)[12] Judgement Moore J paragraph 1
xiii)[13] Judgment of Moore J paragraph 2
The respondents filed applications on 3 May 2007 seeking to be able to leave Australia (Orders of 21 August 2002 did not discharge the order of Johnston JR until the wife had been paid the monies owing to her under the orders made that day).[14]. On 2 December 2009 the respondents amended that application to seek orders under section 79A of the Act setting aside the prior property orders of the court.[15] The matter was eventually set down for hearing to commence on 29 October 2012. That hearing was vacated on the application of the respondents as their legal aid application for the hearing had been lost by the Legal Aid Office of NSW. The case was later listed for hearing to commence 8 April 2013. Judgment was given 3 May 2013.[16]
xiv)[14] Judgment Le Poer Trench J 2 May 2013 paragraph 4.
xv)[15] Judgment Le Poer Trench J 2 May 2013 paragraph 5
xvi)[16] Judgment Le Poer Trench J 2 May 2013 paragraphs 8 to 12.
The wife filed a response to the application filed by the respondents on 3 May 2007 as above referred to. In that response the wife sought enforcement of the orders of 21 August 2002. That response has been varied to form the minute of order sought in this hearing before me (contained in a document titled “Application in a Case” filed 24 May 2013). The order made by me on 3 May 2013 required the wife to file and serve an amended application for enforcement by 23 May 2013. The matter of enforcement was listed for 17 June 2013. On 17 June the matter was adjourned to 29 July 2013.
The respondent husband on 11 July 2013 applied to discharge the order preventing him leaving Australia. Both the respondents proceeded to prosecute an appeal against my orders of 2 May 2013, albeit out of time for the lodging of the appeal. I made directions for the respondents to make provision for security if they wished to leave Australia. On 29 July 2013 I made directions and adjourned all applications to 31 October 2013. On that day I listed the wife’s enforcement application for hearing on 12 December 2013 and made further directions for the filing of evidence. Between May 2013 and October 2013 the 2nd Respondent had not attended court as she was unfit to do so as evidenced by medical certificates.
On 12 December 2013, both the respondents appeared with newly instructed legal representatives. They each sought adjournment. I adjourned the matter to 18 December 2013 to clarify who would be appearing for each of the respondents. On 18 December 2013 each of the respondents was represented in court and each respondent was present. I listed all outstanding applications for hearing to commence 21 February 2014. Lengthy directions and notations were made that day to ensure the hearing might proceed on the allocated date.
A compliance mention was listed for 10 February 2014 to ensure the matter would proceed to hearing on 21 February 2014. That compliance listing occurred and the hearing dates were confirmed.
On 21 February 2014 the hearing commenced.
Having been dissatisfied with my orders of 2 May 2013 the respondent husband, as stated earlier, sought to appeal the orders. Ms B did not appeal. The appeal was lodged out of time and an application to appeal out of time was heard and dismissed by Justice Ainsley Wallace on 9 October 2013.
The wife’s application for enforcement was not determined by me when I dismissed the respondents’ application filed 4 April 2013 (i.e in my orders of 2 May 2013). The enforcement application was adjourned to 17 June 2013 for allocation of further hearing date.
The record shows that from 17 June 2013 until the hearing on 21 February 2014 before me the respondents filed further responses to the application for enforcement, including further seeking to set aside the orders of 21 August 2002.
Having dismissed the respondents’ applications to set aside the orders of 21 August 2002 for the third time it must now be time to end the avenue for frustration that has been available to the respondents in relation to the proceeding which the wife has been seeking to have determined for many years now. The process of continuing to challenge the orders of 21 August 2002, as seen in the actions of the respondents is now (and probably has been since the orders on Moore J made 13 July 2004) an abuse of the court process. As such that action now fits within the definition of “vexatious proceedings” as set out above. Further I am satisfied the orders sought by the respondents have been pursued “without reasonable grounds”. Further I am satisfied that the orders sought by the respondents as outlined in these reasons have been conducted in a way so as “to annoy” the wife and “cause her delay and detriment”
The court, in my view needs to act to protect its own processes and the appropriate way to act is to make an order against each of the respondents prohibiting them from commencing any further proceeding against the wife Ms C Yilmaz.
The court also needs to make clear orders which so far as possible eliminate the prospect of further litigation between the parties to this hearing.
The order the court will make is as follows:
Pursuant to section 102QB of the Family Law Act 1975 (Cth) each of [Mr A Yilmaz and Ms B Yilmaz] is prohibited from instituting proceedings under the Act (other than an appeal against the orders made herein or an application made pursuant to order 16 hereof) without first obtaining leave from a Judge of the Court.
The Registrar is to ensure that all action which may be taken to alert the court to the attempted filing of an application by either of the said [Mr A Yilmaz and Ms B Yilmaz] without first obtaining leave from a judge to do so is taken.
For all the above reasons I make orders as set out at the commencement of these reasons.
I certify that the preceding two hundred and sixty (260) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 13 August 2014.
Associate:
Date: 13 August 2014
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