YILMAZ & YILMAZ - [2013] FamCAFC 155

FAMILY COURT OF AUSTRALIA

YILMAZ & YILMAZ

[2013] FamCAFC 155

FAMILY LAW – APPEAL – Application in an Appeal – extension of time for filing Notice of Appeal – merit of the appeal – whether there would be an injustice – where there would be no injustice – Res Judicata.

FAMILY LAW – PROPERTY – Value of Property – expert evidence – where there have been consent orders.

Family Law Act 1975 (Cth)

Foreman v Federal Commissioner of Taxation (1983) 69 FLR 386
Gallo v Dawson (1990) 93 ALR 479
Jackamarra (an infant) v Krakouer (1998) 195 CLR 516
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

APPELLANTS:

Mr Yilmaz and Ms A Yilmaz

RESPONDENT:

Ms B Yilmaz

FILE NUMBER:

WOC

532

2007

APPEAL NUMBER:

2013

DATE DELIVERED::

9 October 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

12 September 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

2 May 2013

LOWER COURT MNC:

[2013] FamCA 533

REPRESENTATION

COUNSEL FOR THE APPELLANTS:

Mr Othen

SOLICITOR FOR THE APPELLANTS:

Autore & Associates Solicitors & Barristers

COUNSEL FOR THE RESPONDENT:

Mr Alexander

Orders

Application of Mr and Ms A Yilmaz seeking an extension of time in which to file a notice of appeal against the orders of Le Poer Trench J be dismissed.
Mr and Ms A Yilmaz to pay the wife’s costs of and incidental to the application as assessed or agreed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yilmaz and Anor & Yilmaz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 86 of 2013
File Number: WOC 532 of 2007

Mr Yilmaz and Ms A Yilmaz

Appellant

and

Ms B Yilmaz

Respondent

REASONS FOR JUDGMENT

Mr Yilmaz (“the husband”) and Ms A Yilmaz (“the husband’s mother”) seek leave to appeal against a decision of Le Poer Trench J of 2 May 2013 in which he dismissed their application to set aside orders made by Boland J on 11 February 2002, 31 October 2001 and 21 August 2002.
The notice of appeal was filed on 5 July 2013, about four and a half weeks after the time prescribed for filing an appeal.
Ms B Yilmaz (“the wife”) opposes the grant of leave.

Background

It is apparent that this litigation has a complex history. Some context is necessary to the consideration of the application and it is taken from the reasons of Le Poer Trench J.
In February 2000 Boland J made final property orders between the husband and wife which required the husband to pay $170,000 to the wife within three months. Her Honour also made orders to operate in default of the ordered payment. Although the husband lodged an appeal against her Honour’s orders, it was later withdrawn.
On 31 October 2001,…

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] FamCAFC 155
Decision Date: 9 October 2013

CaseChat Overview and Summary

In the matter of Yilmaz & Yilmaz, the parties were involved in a family law dispute which was ultimately heard by Le Poer Trench J. The husband sought an extension of time to appeal the judge's orders, arguing that the appeal had merit and that there would be no injustice in allowing the extension. Additionally, the husband sought to challenge the valuation of property and the effect of previous consent orders on the current dispute. The wife, on the other hand, argued that the appeal was without merit and that there was no basis for the husband's application for an extension of time.

The primary legal issues before the court were whether there was any merit in the husband's appeal and if allowing an extension of time would cause an injustice. The court also had to determine the effect of the consent orders on the current dispute and whether the husband's expert evidence should have been admitted. Furthermore, the court considered whether the husband's previous inaction in other proceedings precluded him from pursuing the current appeal.

In deciding the matter, the court found that the husband's appeal was without merit and that there was no basis for the assertion that the orders of February 2000 were based on incorrect valuation. The court held that the consent orders of August 2002 had superseded the earlier orders, rendering them ineffective. The court also found that the husband's previous inaction in other proceedings precluded him from pursuing the current appeal. The judge concluded that granting an extension of time would be futile, as the appeal was hopeless, unarguable, and bound to fail.

The court dismissed the husband's application for an extension of time and ordered that the husband and wife pay the wife's costs of and incidental to the application as assessed or agreed. The court found that there was no merit in the husband's appeal and that granting an extension of time would not cause an injustice, as the appeal was hopeless, unarguable, and bound to fail. The court also found that the husband's previous inaction in other proceedings precluded him from pursuing the current appeal.

Orders

Orders of the court

1. Application of Mr and Ms A Yilmaz seeking an extension of time in which to file a notice of appeal against the orders of Le Poer Trench J be dismissed.

2. Mr and Ms A Yilmaz to pay the wife’s costs of and incidental to the application as assessed or agreed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

His Honour makes no reference to any application for adjournment made by the husband for the purpose of obtaining further evidence from Turkey on this issue (or at all). While that is not, of course, to say that the husband did not make such an application, however, on its face, his Honour considered the evidence produced to him by the husband in support of his assertion that the orders in February 2000 were based on incorrect valuation.Evidence before the trial judge At [55], his Honour considered the evidence sought to be introduced by the husband from an, apparently well-credentialed expert in Turkish law over the objection of the wife. The purpose of the introduction of this evidence was to establish the wife’s part in a fraud in relation to the valuation. In the following paragraphs his Honour sets out the substance of the wife’s objections to the evidence and his determination on the objection. It is true that, in the result, he declined to allow the husband to rely on that evidence. The grounds relating to this evidence (ground 13 and 15) assert a denial of natural justice. In the light of his Honour’s reasons for refusing to accept the evidence, it is difficult to see the force in these grounds. The effect of the consent orders of August 2002 on the operation of the orders of February 2000 and October 2001. His Honour, after considering the evidence and the orders previously made, said:35. The only reasonable construction of the order made by the Court on 21 August 2002 is that all previous orders made pursuant to s 79 were set aside (with the specific exception of the named orders of 31 October 2001) and a new order under s 79 was made in substitution. If that be correct, then the orders of 11 February 2000 and 31 October 2001 ceased to have force and effect when they were varied by the order made under s 79A on 21 August 2002. If that be correct, then there is no order of 11 February 2000 or 31 October 2001 capable of being set aside by the application now sought to be pressed by the applicants… The grounds as address this finding do no more than assert error and in the absence of argument on the husband’s behalf as to these challenges to his Honour’s finding, it is difficult to see where the error lies in his Honour’s reasoning. His Honour’s findings about res judicata and estoppel In considering the issue of whether the husband’s application was able to be pursued by him, his Honour carefully considered the previous proceedings. In particular he concluded that, notwithstanding the husband’s assertion that the proceedings before Moore J were not brought by him, that in those proceedings the husband’s mother and father sought to have the orders of August 2002 set aside under s 79A and the husband took no part and did not oppose their orders or seek other orders [42]. The ground challenging his Honour’s finding (ground 16) does no more than assert error. It does not provide a basis for the assertion. It is difficult to understand what is being asserted let alone determine whether the ground has merit.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The grounds relating to this evidence (ground 13 and 15) assert a denial of natural justice. In the light of his Honour’s reasons for refusing to accept the evidence, it is difficult to see the force in these grounds. The effect of the consent orders of August 2002 on the operation of the orders of February 2000 and October 2001. His Honour, after considering the evidence and the orders previously made, said:35. The only reasonable construction of the order made by the Court on 21 August 2002 is that all previous orders made pursuant to s 79 were set aside (with the specific exception of the named orders of 31 October 2001) and a new order under s 79 was made in substitution. If that be correct, then the orders of 11 February 2000 and 31 October 2001 ceased to have force and effect when they were varied by the order made under s 79A on 21 August 2002. If that be correct, then there is no order of 11 February 2000 or 31 October 2001 capable of being set aside by the application now sought to be pressed by the applicants… The grounds as address this finding do no more than assert error and in the absence of argument on the husband’s behalf as to these challenges to his Honour’s finding, it is difficult to see where the error lies in his Honour’s reasoning. His Honour’s findings about res judicata and estoppel In considering the issue of whether the husband’s application was able to be pursued by him, his Honour carefully considered the previous proceedings. In particular he concluded that, notwithstanding the husband’s assertion that the proceedings before Moore J were not brought by him, that in those proceedings the husband’s mother and father sought to have the orders of August 2002 set aside under s 79A and the husband took no part and did not oppose their orders or seek other orders [42]. The ground challenging his Honour’s finding (ground 16) does no more than assert error. It does not provide a basis for the assertion. It is difficult to understand what is being asserted let alone determine whether the ground has merit. I make a similar finding as to so much of ground 16 as challenges his Honour’s conclusions about Anshun estoppel. In Jackamarra (an infant) v Krakouer (1998) 195 CLR 516, Kirby J said, at 540, referring to Foreman v Federal Commissioner of Taxation (1983) 69 FLR 386 at 387-388: The party seeking indulgence bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile… In this matter, to grant leave to extend time to the husband would be futile. He has not demonstrated that his appeal is arguable. Finally, but not unimportantly, it is necessary to consider the prejudice that might flow if leave to extend time is not granted and if it is. It could be argued that if the husband is not given leave to bring his appeal out of time he will suffer prejudice in not being able to challenge his Honour’s determination which has the effect of stopping him challenging the orders of 28 August 2002 and those of February 2000 and October 2001 as might still be in effect.