Yarrow & Yarrow (No 2)

[2022] FedCFamC1A 171

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Yarrow & Yarrow (No 2) [2022] FedCFamC1A 171 

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:

20 October 2022

Catchwords:

FAMILY LAW – APPEAL – REMITTER – Whether the rehearing should be heard by the primary judge or another judge – Where none of the primary findings of the primary judge were challenged in the appeal – Where rehearing by the primary judge conforms to the overarching purpose of family law practice and procedure – Where pre-judgment does not necessarily arise – Matter remitted for rehearing by the primary judge – Costs certificates issued to the parties.

Legislation:

Family Law Act 1975 (Cth) ss 75, 79

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 67, 190

Number of paragraphs:

9

Date of last submission/s:

19 September 2022

Date of hearing:

Determined on the papers

Place:

In Chambers

Counsel for the Appellant:

Dr Smith

Solicitor for the Appellant:

Taussig Cherrie Fildes Lawyers

Counsel for the Respondent:

Ms Mooney SC

Solicitor for the Respondent:

Wallace Wilkinson & Webster

Counsel for the Independent Children's Lawyer:

Did not participate

ORDERS

NAA 22 of 2022
HBC 188 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS YARROW

Appellant

AND:

MR YARROW

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	TREE, WILSON & JARRETT JJ
DATE OF ORDER:	20 october 2022

THE COURT ORDERS THAT:

1.The property division claim contained in proceedings HBC 188 of 2020 be remitted to the primary judge for:

(a)the formulation of reasons for her consideration of the matters referred to in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) and particularly s 75(2)(b) and s 75(2)(n); and

(b)further consideration of the just and equitable division of the property of the parties under s 79 of the Act.

2.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

3.The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by them in relation to the appeal.

4.The Court grants to the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the rehearing.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yarrow & Yarrow (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE, WILSON & JARRETT JJ:

introduction

1. On 1 September 2022 we allowed in part an appeal against property orders. That led us to set aside those orders and determine that part of the matter needed to be remitted, although we invited further submissions as to whether that should be to the primary judge or another judge. Those submissions having now been received, for the reasons which follow we are of the view that the matter should be remitted to the primary judge.

   background

2. In our earlier reasons at [2] we said:

   2.The property orders provided that two real properties (one in City E and one in City C) be sold, and the net sale proceeds be divided 54 per cent to the father and 46 per cent to the mother. However, in the event the mother did not relocate to Country D, the sale proceeds of the City C property were to be divided so as to achieve an overall division of property 57/43 per cent in the mother’s favour. In broad terms, otherwise the parties kept the property and financial resources in their own respective names.

3. Only part of Ground 7 of the subsequent appeal succeeded. That part related to the adequacy of the primary judge’s reasons as to how, when considering factors under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), her Honour took into account the nature and effect of the property orders proposed to be made based upon the parties’ contribution based entitlements. At [58] we said:

   58.… without an understanding of the nature and effect of her Honour’s overall assessment of contributions on the potential distribution of the assets as found by her Honour (either in percentage or dollar terms, or in specie), it is not possible to discern the prospective entitlements of each of the parties based upon that assessment. Without a clear articulation of the prospective contribution based entitlements of each of the parties, it is not possible to discern the foundation for her Honour’s assessment of the s 75(2) matters including ss 75(2)(b) and 75(2)(n).

4. Later at [64] we said:

   64.In this case … rehearing seems to be the inevitable outcome, although one which seems quite disproportionate to the very narrow compass of the success of the appeal, especially given the lack of any challenge to the underlying findings of fact.

   to whom should the matter be remitted?

5. The appellant contends that the matter should be remitted to a judge other than the primary judge, principally because her Honour has previously determined how the parties’ property should be divided under s 79, and it is said therefore would be required to recuse herself from dealing further with the matter. The respondent disagrees. Particularly he points to the fact that none of the primary findings of the primary judge were challenged in the appeal, and further, although the foundations for the ultimate property division were challenged, that challenge did not succeed.

6. That is indeed so. All that remains to be done is the provision of further reasons pertaining to the primary judge’s consideration of the matters listed in s 75(2) of the Act, and particularly ss 75(2)(b) and (n), and then the further exercise of the s 79 discretion based upon the facts as found by the primary judge. We cannot see that the primary judge is inevitably disqualified from undertaking that task, which involves no questions of credit or the resolution of controversial evidence. Any application for recusal can, in any event, be made to the primary judge.

7. Such an outcome conforms to the overarching purpose of family law practice and procedure (including the power to remit for rehearing established under s 36(1)(c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)) to efficiently resolve disputes “at a cost that is proportionate to the importance and complexity of the matters in dispute” (ss 67(2)(e) and 190(2)(e) of the FCFCA Act). Whilst such could not overcome reasonably perceived pre-judgement, as we have said, we do not see that as necessarily arising here.

   outcome

8. There will be orders for remittal to the primary judge, for the formulation of further reasons as discussed above, and the further exercise of the s 79 discretion.

   costs

9. The appeal was largely unsuccessful. Although belatedly the respondent sought his costs, we are not satisfied that there should be any order as to costs, given that the appeal did indeed partially succeed, as the respondent conceded that it should. However given that, to the extent it succeeded it was on a matter of law, we will issue costs certificates for the appeal and the rehearing.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Wilson & Jarrett.

Associate:

Dated:       20 October 2022