YILMAZ & YILMAZ - [2010] FMCAfam 791

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YILMAZ & YILMAZ

[2010] FMCAfam 791

FAMILY LAW – Children – overseas travel by child – relevant considerations – applicability of cases decided before the Shared Parental Responsibility amendments.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB

Kuebler & Kuebler, (1978) Fam LN 4, (1978) FLC 90-434
Line & Line (1996) 21 Fam LR 259, (1997) FLC 92-729

Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296
MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424)

Applicant:

MS YILMAZ

Respondent:

MR YILMAZ

File Number:

PAC 3800 of 2009

Judgment of:

Halligan FM

Hearing dates:

11 June 2010 & 26 July 2010

Date of Last Submission:

26 July 2010

Delivered at:

Parramatta

Delivered on:

26 July 2010

REPRESENTATION

Counsel for the Applicant:

Ms Snelling

Solicitors for the Applicant:

Sayan & Associates

Counsel for the Respondent:

Mr Gersbach

Solicitors for the Respondent:

Matthews Folbigg

ORDERS

By consent, orders are made in accordance with the Terms of Settlement marked Ex K, except subparas.7(i), (ii) and (iii) and para.11.
Notwithstanding these orders, and subject to subparas.7(iv), (v) and (vi) and paras.9 and 10 of Ex K, the mother may take the child out of Australia to travel to Turkey provided that the child shall not leave Australia prior to 10 September 2010 and the mother shall cause the child to return to Australia no later than 5 November 2010.
If the mother fails to return the child to Australia by 5 November 2010, the father has liberty to apply to the court ex parte for orders enabling the sale of the mother's car and home unit and application of the proceeds of sale to meet the father's legal costs of seeking the child’s return to Australia.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC 3800 of 2009

MS YILMAZ

Applicant

And

MR YILMAZ

Respondent

REASONS FOR JUDGMENT

Issues to clarify

Introduction

The mother of ten year old [X] wishes to travel with her to the parents’ country of birth, Turkey, for a holiday to visit her family members and culturally significant sites there. The father does not oppose the trip in principle, but objects to the amount of school the child would miss under the mother's proposals, and is concerned that the mother may not return the child to Australia. He therefore proposes that the duration or timing of the mother's proposed trip be changed, and he seeks that the mother provide security for her return, both in cash, by provision of her motor vehicle and charging her interest in her home unit to secure a payment of $15,000. The mother objects to the cash component of the security the father seeks, and to both the limitation on the duration of the trip and the timing…

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: [2010] FMCAfam 791
Decision Date: 26 July 2010

CaseChat Overview and Summary

The case before the court involved a dispute between the parents, Yilnaz and Yilnaz, regarding the overseas travel of their child. The specific issue was whether the mother could take the child out of Australia to Turkey, with the father objecting to this travel. The Family Court of Australia was tasked with determining the legality and advisability of the proposed travel, particularly in light of existing family law principles and the implications of the Shared Parental Responsibility amendments.

The central legal issue the court had to address was whether the mother had the right to take the child overseas without the father's consent, given the circumstances and the relevant legal framework. This included assessing the applicability of prior case law concerning children's overseas travel before the introduction of the Shared Parental Responsibility reforms. The court needed to balance the child's best interests with the statutory and case law principles governing parental responsibility and decision-making.

The court reasoned that the mother could indeed take the child to Turkey under specific conditions. It held that the mother was permitted to leave Australia with the child, provided the travel did not occur before 10 September 2010 and the child returned by 5 November 2010. The court emphasised that the decision hinged on the best interests of the child and the importance of maintaining the child’s connection with both parents. The court also granted the father the right to seek the sale of the mother's property if she failed to return the child by the stipulated date, to cover his legal costs incurred in pursuing the matter.

The final orders of the court allowed the mother to travel to Turkey with the child under the specified conditions. If the child was not returned by 5 November 2010, the father could apply for the sale of the mother's car and home unit to cover his legal costs. The remaining terms of the settlement were to be implemented as per the agreed terms, except for certain specified subparagraphs and paragraphs.

Orders

Orders of the court

By consent, orders are made in accordance with the Terms of Settlement marked Ex K, except subparas.7(i), (ii) and (iii) and para.11.

Notwithstanding these orders, and subject to subparas.7(iv), (v) and (vi) and paras.9 and 10 of Ex K, the mother may take the child out of Australia to travel to Turkey provided that the child shall not leave Australia prior to 10 September 2010 and the mother shall cause the child to return to Australia no later than 5 November 2010.

If the mother fails to return the child to Australia by 5 November 2010, the father has liberty to apply to the court ex parte for orders enabling the sale of the mother's car and home unit and application of the proceeds of sale to meet the father's legal costs of seeking the child’s return to Australia.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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