Yarrow & Yarrow

Case [2022] FedCFamC1A 135

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Yarrow & Yarrow [2022] FedCFamC1A 135

Appeal from: Yarrow & Yarrow [2021] FedCFamC2F 651
Appeal number(s): NAA 22 of 2022
File number(s): HBC 188 of 2020
Judgment of: TREE, WILSON & JARRETT JJ
Date of judgment: 1 September 2022
Catchwords:

FAMILY LAW – APPEAL – PARENTING – Relocation – Where the mother appeals from orders providing for the children to live with the father in Australia and spend time with her if she relocates overseas – Where the mother sought that she be permitted to relocate to the United Kingdom with the children – Whether the primary judge failed to consider a meaningful relationship – Whether the primary judge failed to consider the parties’ competing proposals – Whether the primary judge erred by requiring compelling reasons to relocate – Adequacy of reasons – Where no appealable error is established – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Assessment of contributions and matters under s 75(2) of the Family Law Act 1975 (Cth) – Whether the primary judge failed to make an overall assessment of contributions – Whether the primary judge failed to consider matters under s 75(2) of the Act – Whether the primary judge gave adequate reasons – Where her Honour’s reasons with respect to ss 75(2)(b) and (n) were inadequate and thus the reasons as to the overall division were inadequate – Where it is not possible to discern the foundation for the s 75(2) assessment – Appeal allowed in part – Where not every such failure to give adequate reasons will result in remission of the matter for a new trial – Where there is power to remit the matter for the formulation of reasons – Orders set aside – Written submissions on the point to be filed.
Legislation:

Family Law Act 1975 (Cth) ss 75, 79

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36

Federal Court of Australia Act 1976 (Cth) s 28
Cases cited:

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Bolger & Headon (2014) FLC 93-575; [2014] FamCAFC 27

Bourke v Beneficial Finance Corporation Ltd (1993) 47 FCR 264

Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58

Hickey and Hickey (2003) FLC 93-143; [2003] FamCA 395

Holland & Holland (2017) FLC 93-798; [2017] FamCAFC 166

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Lopez v Gold Titan Pty Ltd [2022] FCAFC 117

Marsh & Marsh (2014) FLC 93-576; [2014] FamCAFC 24

Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; [2004] WASCA 149

North East Equity Pty Ltd v Proud Nominees Pty Ltd (2010) 269 ALR 262; [2010] FCAFC 60

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Willis &…

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Yarrow & Yarrow [2022] FedCFamC1A 135
Case
[2022] FedCFamC1A 135
Decision Date

CaseChat Overview and Summary

In the matter of Yarrow & Yarrow, the appeal focused on both parenting and property matters stemming from the separation of the parties, who had been married and had two children together. The mother, a permanent resident of Australia, and the father, an Australian national, separated in early 2020, leading to proceedings for parenting and property orders. The primary judge's decision, delivered on 24 December 2021, resulted in an appeal by the father challenging both the parenting and property orders.

The primary legal issues before the court were whether the primary judge erred in exercising her discretion in making the parenting and property orders. Specifically, the father contested the parenting orders, arguing that the children should remain in Australia and not relocate with the mother to Country D. In relation to the property orders, the father argued that the primary judge failed to properly consider the financial implications of the property distribution as mandated by sections 75(2)(b) and 75(2)(n) of the Family Law Act 1975 (Cth). This was particularly pertinent given the substantial financial disparity between the parties.

The court found that the primary judge did not err in her consideration of the parenting orders, affirming that the children should continue to live with the mother in Australia but spend time with the father. However, regarding the property orders, the court held that the primary judge did not adequately consider the financial implications of the property distribution. The court emphasized that the primary judge needed to consider the effect of the findings as to contribution on the respective positions of the parties before determining any property adjustment. The appeal succeeded in relation to the property orders but failed in relation to the parenting orders.

As a result, the appeal was dismissed insofar as it related to the parenting orders, but the court allowed the appeal in relation to the property orders. This meant that the primary judge's property orders would be reviewed to ensure they properly considered the financial disparities between the parties.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, insofar as it relates to parenting, the appeal will be dismissed, however it succeeds in relation to the property orders.background The mother was born in Country K and is presently aged 49. She is a permanent resident of Australia, and is currently unemployed. The father was born in Australia and is presently aged 48. He is currently employed as a professional. In 2002, the father moved to Country D where he met the mother. In 2007, the parties commenced cohabitation in City C and married in 2008. They thereafter had two children; W born in 2013, and X born in 2016. They predominantly lived in City C until 2017, when they moved to Country K for 12 months, and thereafter relocated with the children to City E, Australia. The parties separated in early 2020, and the father commenced these proceedings in March of that year. On 29 April 2020, interim orders were made providing for the parties to have equal shared parental responsibility for the children, who would live with the mother and spend time with the father for five nights a fortnight. Both parties were restrained from removing the children from City E. These were the orders in place at the time of the trial in September 2021. At that trial, the mother primarily sought to relocate with the children to Country D, and for them to spend time with the father, the frequency and duration of which would depend upon whether he lived in Australia or Country D. The father’s primary position was for the children to remain in City E and to live between him and the mother. The ICL supported the father’s case. As the primary judge recorded, the mother’s evidence implied that she would not necessarily relocate to Country D if the Court did not permit the children to do so (at [29]–[30]). It is not necessary for the purposes of the appeal to outline the parties’ trial proposals as to property division. The trial took place over six days between September and November 2021, with the primary judge’s decision being delivered on 24 December 2021.the appeal At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504-505 must be established. There, the majority of the High Court said:The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.the appeal against parenting orders

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ground 5 has no merit.Grounds 6 and 7 – Section 75(2)(b) and (n) considerations and adequacy of reasons As shall shortly appear, it is convenient to deal with these grounds together. The matters provided for in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), so far as they were relevant, required consideration, and her Honour’s reasons show that she was aware of that. However, authorities binding on her Honour, which we shall specifically discuss below, mandated that the parties’ property and financial resources (s 75(2)(b)) and the terms of any order made or proposed to be made in relation to the property of the parties (s 75(2)(n)) had to be taken into account and the pertinent explanation relating to that undertaken in a meaningful way. Willis & Willis [2007] FamCA 819 (“Willis”) concerned the primary judge’s failure to consider ss 75(2)(b) and 75(2)(n) when making property adjustment orders. In that case, each of the grounds of appeal against the orders made at first instance in that case failed. The appeal succeeded however, on a single point identified by the Full Court itself. The ratio of the case is encapsulated in [50] of the reasons as follows:50.However, in our opinion there was an error in the trial judge’s treatment of the section 75(2) factors. Her Honour failed to consider the effect of the findings as to contribution on the respective positions of the parties, before proceeding to determine whether any adjustment was warranted pursuant to section 75(2). The effect of the 30 per cent differential established on the basis of contribution was approximately $220,000. This required consideration pursuant to section 75(2) but was not addressed by her Honour. The appeal must therefore be allowed in respect of the finding that the wife receive an adjustment of 15% on account of section 75(2) factors. The correctness of Willis was not challenged before us, nor was any authority identified in argument which doubted the proposition for which it stands. Indeed, it has been followed and applied by Full Courts more than once. Thus in Bolger & Headon (2014) FLC 93-575 the Full Court said:11.Nowhere within her Honour’s discussion of the relevant s 75(2) factors did her Honour express a conclusion as to how her contribution findings might find reflection either in percentage or dollar terms or in terms of orders that might reflect the mooted contributions assessment. That consideration is important. In Willis & Willis [2007] FamCA 819, at [50] this Court found error “…in the trial judge’s treatment of the section 75(2) factors…” because, “…[h]er Honour failed to consider the effect of the findings as to contribution on the respective positions of the parties, before proceeding to determine whether any adjustment was warranted pursuant to section 75(2).” Similarly, in Marsh & Marsh (2014) FLC 93–576 (“Marsh”), the Full Court thought it significant that although the primary judge had expressed his contribution based assessment in percentage terms, he had not gone on to consider what that meant in dollar terms for the parties in the context of that case. At [128]–[129] Murphy J said:128.Important to the assessment pursuant to s 79(4)(e) is a consideration of the quantum and effect of the mooted assessment of contributions. That is required by reference to ss 75(2)(b) and (n) (see, Willis & Willis [2007] FamCA 819, especially at [50]). Here, in considering specifically s 75(2)(b), and, indeed, s 75(2) more broadly, the Federal Magistrate appears to have paid no regard to his mooted assessment of contributions nor the nature and effect of the orders that might flow from it. 129.No ground of appeal contends that his Honour erred in principle in so doing. Yet, the consideration just referred to is important in informing my view that his Honour’s adjustment of 10 per cent in respect of the parties’ property in favour of the wife (in dollar terms, about $310,000) is plainly wrong.(Emphasis added)