Yarrow & Yarrow (No 2)

The appeal in Yarrow & Yarrow (No 2) concerns the adequacy of the reasoning provided by the primary judge regarding the property distribution orders in a family law matter. The appeal was allowed in part, leading to the setting aside of the property orders and a subsequent need to remit the matter for further determination. The central issue before the court was whether the matter should be remitted to the primary judge or another judge. The appellant argued for a different judge, citing the primary judge's prior determination of property division under section 79 of the Family Law Act 1975 (Cth). In contrast, the respondent contended that there was no basis for recusal as the primary judge's factual findings were unchallenged, and the appeal did not dispute these findings.

The court examined the nature of the primary judge's role in the matter. It noted that the primary judge's task was to provide further reasons regarding her consideration of the factors under section 75(2) of the Act, specifically sections 75(2)(b) and 75(2)(n), and then exercise the discretion under section 79 based on the established facts. The court concluded that the primary judge was not disqualified from this task, which did not involve credit issues or controversial evidence. The court further noted that any application for recusal could be made directly to the primary judge. Therefore, the court determined that the matter should be remitted to the primary judge to provide the additional reasons and make the property orders.

The court's decision was based on the need for the primary judge to clarify her reasoning in light of the appeal's limited success, without revisiting the unchallenged factual findings. This approach ensures a proportionate response to the appeal's specific issues while maintaining judicial efficiency. The court's final orders direct that the matter be remitted to the primary judge for the specified purposes, avoiding unnecessary reassignment of the case.