Yarrow & Yarrow (No 3)
[2023] FedCFamC1A 137
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Yarrow & Yarrow (No 3) [2023] FedCFamC1A 137
Appeal from: Yarrow & Yarrow (No 2) [2023] FedCFamC2F 99 Appeal number: NAA 40 of 2023 File number: HBC 188 of 2020 Judgment of: AUSTIN, TREE & CHRISTIE JJ Date of judgment: 18 August 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from final property settlement orders made following a remitter – Where the hearing was remitted to the primary judge for formulation of further reasons – Procedural fairness – Where the primary judge refused the wife’s request to file further evidence – Where that refusal was based on a mistaken interpretation of the terms of the remitter – Where the first Full Court’s reasons forewarned the parties that attempts at further agitation of evidence and issues already traversed in the first trial judgment were not condoned – Where parties must be given the opportunity to adduce updated evidence in a rehearing – Where the first Full Court’s reasons should not be read as forbidding the parties from exercising their rights to adduce relevant and probative updating evidence – Denial of procedural fairness – Appeal allowed – Matter remitted for rehearing – Costs certificates issued. Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lopez v Gold Titan Pty Ltd [2022] FCAFC 117
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Yarrow & Yarrow [2021] FedCFamC2F 651
Yarrow & Yarrow [2022] FedCFamC1A 135
Yarrow & Yarrow (No 2) (2022) FLC 94-112; [2022] FedCFamC1A 171
Yarrow & Yarrow (No 2) [2023] FedCFamC2F 99
Yarrow & Yarrow (No 3) [2023] FedCFamC2F 162
Number of paragraphs: 36 Date of hearing: 1 August 2023 Place: Melbourne Counsel for the Appellant: Dr Smith Solicitor for the Appellant: Taussig Cherrie Fildes Counsel for the Respondent: Ms Mooney SC Solicitor for the Respondent: Wallace Wilkinson & Webster ORDERS
NAA 40 of 2023
HBC 188 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS YARROW
Appellant
AND: MR YARROW
Respondent
order made by:
AUSTIN, TREE & CHRISTIE JJ
DATE OF ORDER:
18 august 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 28 April 2023 is allowed such that the affidavit of Ms BD filed 28 April 2023 and the documents thereto annexed are admitted into evidence on the appeal.
2.The appeal is allowed.
3.The orders of the Federal Circuit and Family Court of Australia (Division 2) made 8 February 2023 are set aside.
4.The property division claim contained in proceedings HBC 188 of 2020 is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
5.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.
6.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 the respondent in relation to the appeal.
7.The Court grants to each party a costs certificate pursuant to 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 the parties in respect of the costs incurred by them 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 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, TREE & CHRISTIE JJ:
INTRODUCTION
On 24 December 2021, for written reasons then delivered, the primary judge made final parenting and property orders in these proceedings (Yarrow & Yarrow [2021] FedCFamC2F 651; “the first trial judgment”). Ms Yarrow (“the wife”) subsequently appealed from both aspects of those orders.
On 1 September 2022, a Full Court (“the first Full Court”) partially allowed that appeal, but only in respect of the property settlement orders (Yarrow & Yarrow [2022] FedCFamC1A 135; “the first appeal judgment”). After inviting submissions as to what that partial success should lead to, on 20 October 2022, the first Full Court determined to remit the property settlement proceedings back to the primary judge for the formulation of further reasons in relation to her consideration of the matters listed in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) and the further consideration of a just and equitable division under s 79 of the Act (Yarrow & Yarrow (No 2) (2022) FLC 94-112; “the second appeal judgment”).
On the afternoon of 7 February 2023, the chambers of the primary judge advised the parties that judgment in the remitted matter would be delivered the next morning. Later that night, the wife’s solicitors replied, asking the primary judge not to proceed to deliver judgment the next day, for reasons we shall detail shortly.
On 8 February 2023 the primary judge first delivered ex tempore reasons for declining to defer or postpone the delivery of judgment (Yarrow & Yarrow (No 3) [2023] FedCFamC2F 162; “the ex tempore judgment”). Her Honour then proceeded to pronounce final property settlement orders and delivered further written reasons for judgment (Yarrow & Yarrow (No 2) [2023] FedCFamC2F 99; “the second trial judgment”). Those orders were the same as her Honour had originally made on 24 December 2021, being a 54/46 per cent division in favour of Mr Yarrow (“the husband”) if the wife relocates from Australia, or 57/43 per cent in favour of the wife if she does not.
The wife now appeals the primary judge’s property settlement orders made on 8 February 2023. The husband opposes the appeal. For the reasons which follow, the appeal will be allowed.
BACKGROUND
In the second appeal judgment, the first Full Court said:
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) … , 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.
The first Full Court then explained their decision to remit the hearing to the original primary judge, as follows:
5.The [wife] 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 [husband] 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.
The only order relevant to this appeal made consequent upon the second appeal judgment was:
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.
While that remedial order did not proscribe the manner in which the primary judge should conduct the rehearing upon remitter, it must be acknowledged the first Full Court did say in the first appeal judgment that the remitter was “not for the purpose of reopening the case for further evidence or submissions” (at [70]). As it transpired, the primary judge interpreted that as a prohibition binding her Honour rather than, as was intended, an admonition to the parties against wholesale reconstitution of their cases in the face of such narrow appealable error.
The second trial judgment addressed the relevant matters under s 75(2) of the Act, with the primary judge ascribing specific percentages to them. As already mentioned, in the overall outcome, the primary judge did not depart from the original property division orders she made in the first trial judgment, and re-made those orders upon the delivery of the second trial judgment.
THE APPLICATION IN AN APPEAL
By Application in an Appeal filed 28 April 2023, the wife sought to put into evidence the email sent from the primary judge’s chambers to the parties (at 3.43pm) on 7 February 2023, and the email from the wife’s solicitors to the primary judge’s chambers (and the husband’s solicitors) sent (at 10.07pm) on 7 February 2023.
Those emails were clearly before the primary judge on 8 February 2023. We do not understand their admission into evidence on the appeal to be opposed, and we shall therefore allow the Application in an Appeal.
THE APPEAL
Generally
The appeal ran to four grounds, the first two alleging apprehended bias and lack of procedural fairness, with Grounds 3 and 4 asserting specific error relating to the primary judge’s exercise of the s 79 discretion.
It is convenient to deal with Ground 2 first since, as shall be seen, it thereafter becomes unnecessary to address the remaining grounds.
Ground 2
This ground asserts that “the [primary judge] failed to afford the [wife] procedural fairness”. A little more factual background is required to understand the context of this challenge.
The remitter order consequent upon the second appeal judgment was made on 20 October 2022. In the first appeal judgment, when articulating the possible orders flowing from the wife’s limited success, the first Full Court contemplated that any rehearing would not require further evidence or submissions (at [70]), although no such restriction was contained in the 20 October 2022 remitter order.
Thereafter, the (by then self-represented) wife, on dates which we are unclear on the evidence, sought to file further material. Precisely what that material comprised is not clear, although apparently initially it was in the form of a Further Amended Response, but later, on 27 January 2023 comprised a fresh Application for Final Orders, supported by a financial statement and affidavit. All of those documents were rejected for filing by the registry. There is no reason, on the evidence, to think that any of that further material came to the attention of the primary judge prior to 8 February 2023.
We have already noted that late on Tuesday 7 February 2023 the chambers of the primary judge advised the parties that judgment would be delivered early the following day.
Thereafter it appears that the wife re-engaged her previous solicitors. Their 7 February 2023 letter to the primary judge’s chambers sought that the delivery of judgment be deferred. Having detailed the unsuccessful attempts of the wife to file further material outlined above, the penultimate paragraph of the letter said:
Our client respectfully requests that judgment not be delivered in this matter until she is given an opportunity to be heard, including:
…
(b)the filing of further evidence to enable the Court to properly give ‘further consideration’ of the just and equitable division of the property of the parties under s 79 of the Act as required by the Full Court’s remitter.
(Original emphasis)
In the ex tempore judgment the primary judge said:
4.I have carefully considered the request to defer the delivery of judgment on the remittal in this matter and for the reasons that I now give, I decline to defer or postpone the delivery of judgment. The Full Court’s orders remitting this matter to me were made on 20 October 2022, over three months ago. I consider that the [wife] has had ample opportunity in that three months to make the applications foreshadowed if it was her intention to do so. The letter from the [wife’s] solicitors states:
Our client has been awaiting communication from the Court since 20 October as to the further listing of the matter.
However, in my view, that position on the [wife’s] part is misconceived because very clearly in the Full Court’s reasons it stated, and I quote from paragraph 6 of the judgment:
All that remains to be done is the provision of further reasons pertaining to the primary judge’s consideration of matters listed in section 75(2) of the Act, and particularly section 75(2)(b) and (n), and then the further exercise of the section 79 discretion based on the facts found by the primary judge.
5.It is apparent, in my view, given those reasons, that the Full Court did not contemplate nor invite or regard as permissible either the reopening of the [wife’s] case for the adducing of further evidence, nor the opportunity to the [wife] to make further submissions in respect of what orders should be made in the property proceedings. The reasons of the Full Court made it clear that there had been no successful challenge to the facts found by me at first instance. In those circumstances, I consider that any intention to make an application to file further evidence as foreshadowed at subparagraph (b) on page 2 of the letter from [the wife’s solicitors] is misconceived.
(Emphasis added) (Footnote omitted)
In addition to referencing [6] of the second appeal judgment, the first sentence of [5] in the ex tempore judgment may also be a reference to [70] of the first appeal judgment, which reads:
70.The question then is whether we ought remit the matter for rehearing to a judge other than the primary judge, or remit it to her Honour for the provision of further reasons for her assessments. We prefer the latter but, as in Lopez, we would reiterate that such remittal is not for the purpose of reopening the case for further evidence or submissions.
(Emphasis added)
To the extent that the reasons in the first Full Court followed the dicta in Lopez v Gold Titan Pty Ltd [2022] FCAFC 117 it is important to understand that the Full Court of the Federal Court remitted the matter for further reasons in respect of the quantum of damages in circumstances where the parties had declined to adduce further evidence on the issue before the primary judge notwithstanding a grant of leave permitting them to so do. The admonition that remittal was not for the purpose of reopening evidence or submissions in that case has to be seen in the light of those factual circumstances.
As at 1 September 2022 the purpose of the then contemplated remitter was simply to enable the primary judge to formulate the required further reasons pertaining to relevant s 75(2) factors, and in the light of those, to again undertake the just and equitable division of the parties’ property under s 79. At the time, the Full Court anticipated the task of re-exercising discretion under s 79 of the Act would not require any additional evidence or submissions, given the failure of all challenges in the former appeal save for the complaint of inadequate reasons being given for how the application of two particular sub-sections of s 75(2) of the Act influenced the result.
However in her submissions filed 19 September 2022, at paragraph 21 the wife submitted that, given the lapse of time since the first trial judgment, to forbid re-opening of the evidence would cause an injustice. But not only was there no such restriction imposed by the terms of the 20 October 2022 remitter order, indeed thereafter the wife did attempt to file further material. Whilst we do not know what that material was, we can only assume it must have contained something not otherwise before the primary judge, likely relating to events subsequent to the first trial judgment.
In declining to defer the delivery of the second trial judgment, it seems the primary judge regarded herself as bound to reject any attempt by the wife to lead further evidence because the first Full Court “did not … regard [doing so] as permissible” and that therefore “an application to file further evidence … is misconceived”. However, the primary judge was mistaken, though perhaps understandably so. While the Full Court anticipated further evidence and submissions would not be needed in the rehearing, the remitter order did not forbid it. The explanatory reasons forewarned the parties that attempts at further agitation of evidence and issues already traversed in the first trial and settled by the first trial judgment were not condoned.
After a successful appeal, in the rehearing of proceedings determinable by a discretionary judgment, such as these, the parties must be given the opportunity to adduce updated evidence (Allesch v Maunz (2000) 203 CLR 172 at 183 and 192). Providing the evidence is admissible, it should be admitted. However, here, the primary judge failed to even consider the admissibility of the evidence the wife wished to adduce in the rehearing. It may have been proper to reject the proposed evidence as being old, repetitive, irrelevant or lacking probative value, but her Honour did not consider it.
Two simple examples will suffice in explaining why the first Full Court ought not be taken to have prophylactically prohibited the parties from seeking to adduce fresh evidence in the rehearing. The wife may have been seriously injured since the second appeal judgment and unlikely to be able to work again or perhaps the value of assets may have changed markedly in the meantime. Plainly, such facts would be relevant considerations for the just and equitable property division, the discretionary decision in relation to which had to be made by reference to the facts pertaining at the time of the exercise.
Hence, given the uncircumscribed terms of the order which remitted the matter to the primary judge, neither set of reasons of the first Full Court should be read as forbidding the parties from exercising their rights to adduce relevant and probative updating evidence.
Whilst it cannot be the case, and these reasons should not be read as suggesting otherwise, that an imminent judgment can invariably be derailed by a last minute intimation of an intention to lead fresh evidence, the facts here are not that simple. Particularly, the (until 7 February 2023, self-represented litigant) wife tried on at least two occasions to update her material. Precisely what that material contained is unclear, but by the same token it appears it was equally unknown by the primary judge. It therefore was not the case that the wife had done nothing since the second appeal judgment, but rather her attempts to put further material forward had been administratively rebuffed.
From the terms of the ex tempore judgment the primary judge was obviously aware of those attempts by the wife, yet her Honour proceeded to deliver the second trial judgment quite unaware of what the additional material sought to be put before her contained. If it was not new, relevant and probative, then it could have been swiftly and safely rejected before moving on to contemporaneously deliver the second trial judgment. Conversely, if the further evidence was relevant updating material, it ought have been received with some tight accompanying directions to ensure that the fabric of the first trial was not unduly frayed.
Acting upon a mistaken interpretation of the terms upon which the proceedings were remitted, the primary judge refused to even consider the fresh evidence the wife wished to adduce and thereby denied her procedural fairness, in that in the particular circumstances of this unusual case she was not afforded an adequate opportunity to advance her case (Kioa v West (1985) 159 CLR 550 at 582). For completeness, we should say that this is not a case where, on the material, we could be satisfied that the primary judge’s decision was inevitable, even if procedural fairness had been afforded (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).
It follows that Ground 2 is made out.
The remaining grounds
Given that success on Ground 2 compels that the matter be again remitted, we do not need to consider the further grounds.
OUTCOME
We propose to remit the matter for rehearing generally, as senior counsel for the husband conceded would be appropriate. That said, it will be a matter for the new judge to determine how that rehearing ought proceed, particularly given the primary judge’s unchallenged factual findings in the first trial judgment.
COSTS
In the event the appeal succeeded, the wife sought her costs in the sum of $10,302.05. However, the appeal has been allowed in respect of an error of law to which the husband did not even conceivably contribute in any way, and hence we are not satisfied that he should bear any adverse costs consequence.
However as requested by both parties, we shall provide costs certificates to them for the appeal and the rehearing.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Tree & Christie. Associate:
Dated: 18 August 2023
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