Yarrow & Yarrow (No 2) - [2023] FedCFamC2F 99

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yarrow & Yarrow (No 2) [2023] FedCFamC2F 99

File number(s): HBC 188 of 2020

Judgment of: JUDGE TAGLIERI

Date of judgment: 8 February 2023

Catchwords: FAMILY LAW – property – further reasons on remittal from appeal and re-exercise of court’s power – 13 year relationship – one pool approach – where parties hold real property and superannuation and non-superannuation interests in Australia and the United Kingdom – orders made at first instance adjusting the parties’ assets – a just and equitable adjustment required distribution of 54% in favour of husband and 46% in favour of wife if wife relocates or 57% in favour of the wife and 43% in favour of the husband if the wife does not relocate – upon giving further reasons and re-exercise of determination as to what is just and equitable – adjustment of parties’ assets consistent with first instance judgment – as appeal court set aside first instance orders – orders re-pronounced as required pursuant to these reasons

Legislation: Family Law Act 1975 (Cth) ss 75(2), 75(2)(b), 75(2)(c), 75(2)(n), 75(2)(n)(a), 79(2)(d) 79(2)(g)

Cases cited:
Yarrow & Yarrow [2022] FedCFamC1A 135

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

Yarrow & Yarrow [2021] FedCFamC2F 651

Division: Division 2 Family Law

Number of paragraphs: 35

Date of hearing: 7-9 September 2021, 15 September 2021, 15 October 2021, 2 November 2021, in Chambers on the papers

Place: City E

Counsel for the Applicant: Mr Theobald

Solicitor for the Applicant: Lawyers R

Counsel for the Respondent: The Respondent in person

ORDERS

HBC 188 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR YARROW

Applicant

AND:
MS YARROW

Respondent

order made by:

JUDGE TAGLIERI

DATE OF ORDER:

8 February 2023

THE COURT DECLARES THAT:

The orders made 24 December 2021 in respect of the proceedings under s 79 of the Family Law Act 1975 (Cth) represent a just and equitable distribution of the property of the parties MR YARROW (“the husband”) and MS YARROW (“the wife”) (collectively “the Parties”).
THE COURT ORDERS THAT:
Within 28 days of the date of these Orders the parties do all things necessary to cause the sum of $10,000 to be paid from the husband’s Bank BA bank account to a joint account with the Commonwealth Bank of Australia in City E with both parties as signatories, which sum is to be held in trust for the benefit of the children.
The property known as and situate at F Street, City E in Tasmania, being all that property comprised in Certificate of Title Volume … Folio … (“the F Street City E Property”), is to be sold forthwith and for that purpose the Parties are to each do all which is necessary to effect the sale of the property including:
(a)Within 21 days from the date of this Order the Parties shall jointly appoint by agreement a real estate agent (“the Australian Agent”) as the sole agent to act on behalf of…

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.

Continue reading Yarrow & Yarrow (No 2)

Details

AGLC: Yarrow & Yarrow (No 2) [2023] FedCFamC2F 99
Case: [2023] FedCFamC2F 99
Decision Date

CaseChat Overview and Summary

The case Yarrow & Yarrow (No 2) involves the parties, Mr Yarrow and Ms Yarrow, who were in a 13-year relationship. The court had to determine the distribution of the parties' assets in accordance with the Family Law Act 1975 (Cth). The legal issues in this case were whether the initial distribution of assets was just and equitable, and if not, what adjustments were necessary in light of the appeal court's findings. The court was required to consider the income, property, and financial resources of each party and their capacity for gainful employment, as well as other relevant factors outlined in the Act.

Judge Taglieri provided further reasons for the distribution of the parties' assets, taking into account the appeal court's decision and the factors outlined in the Act. The court found that the initial distribution of assets was just and equitable, with a 54% allocation to the husband and 46% to the wife if she relocates, or a 57% allocation to the wife and 43% to the husband if she does not relocate and provides a written undertaking to the court. The court also ordered the sale of two properties, with the proceeds to be distributed according to the adjusted allocation of assets. The court held that no further adjustments were necessary, and the initial distribution of assets remained just and equitable.

The final orders of the court declared that the orders made on 24 December 2021 represented a just and equitable distribution of the parties' property. The court ordered the sale of two properties and the distribution of the proceeds according to the adjusted allocation of assets. The court also ordered that $10,000 be paid from the husband's bank account to a joint account for the benefit of the children. The wife was required to vacate one of the properties by a specified date and cooperate with the sale process. The court further ordered that the wife provide a written undertaking that she would not relocate to the United Kingdom before a specified date, failing which the initial distribution of assets would apply.

Orders