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)…
Continue reading Yarrow & Yarrow (No 3)
Sign in free to access the full text
Details
- AGLC
- Yarrow & Yarrow (No 3) [2023] FedCFamC1A 137
- Case
- [2023] FedCFamC1A 137
- Decision Date
CaseChat Overview and Summary
In the case of Yarrow & Yarrow (No 3), the wife appealed the property settlement orders made by the primary judge on 8 February 2023, and the husband opposed the appeal. The primary judge had made orders regarding the division of property between the parties, but the Full Court found that the reasons provided were inadequate in addressing certain factors under s 75(2) of the Family Law Act 1975 (Cth). The Full Court remitted the case for further reasons and a re-exercise of the discretion under s 79 of the Act, considering factors such as the nature and effect of the property orders and the parties' contribution-based entitlements. The Full Court held that the primary judge could undertake this task without the need for additional evidence or submissions, and the wife's attempt to file further material was rejected as misconceived. However, the Full Court later clarified that while the remitter order did not forbid further evidence, attempts to reopen evidence and issues already settled in the first trial were not condoned.
The legal issues in this case primarily revolved around the adequacy of the primary judge's reasons for the property settlement orders and the appropriate scope of the remittal order issued by the Full Court. The Full Court was required to determine whether the primary judge was disqualified from re-exercising the discretion under s 79 of the Act and whether the remittal order allowed for the introduction of new evidence or submissions. The court had to balance the principles of family law practice and procedure with the need for clear and comprehensive reasons for the property settlement orders, while also considering the potential for reopening evidence and issues already settled in the first trial.
The Full Court concluded that the primary judge was not inevitably disqualified from re-exercising the discretion under s 79 of the Act, as the task involved no questions of credit or the resolution of controversial evidence. The remittal order did not forbid the introduction of new evidence or submissions, but the Full Court warned that attempts to reopen evidence and issues already settled in the first trial were not condoned. The primary judge was mistaken in rejecting the wife's attempt to file further material, as the remitter order did not explicitly forbid it. However, the Full Court emphasized that the remittal order was not intended to permit the reopening of evidence and issues already traversed in the first trial and settled by the first trial judgment.
The Full Court's decision in Yarrow & Yarrow (No 3) highlights the importance of providing clear and comprehensive reasons for property settlement orders in family law cases. The court balanced the need for adequate reasons with the principles of family law practice and procedure, ultimately concluding that the primary judge was not disqualified from re-exercising the discretion under s 79 of the Act. The Full Court also clarified the scope of the remittal order, allowing for the introduction of new evidence or submissions, but cautioned against reopening evidence and issues already settled in the first trial. The primary judge's rejection of the wife's attempt to file further material was deemed mistaken, as the remitter order did not explicitly forbid it. The Full Court's decision underscores the importance of adhering to the principles of family law practice and procedure while ensuring that property settlement orders are supported by clear and comprehensive reasons.
The legal issues in this case primarily revolved around the adequacy of the primary judge's reasons for the property settlement orders and the appropriate scope of the remittal order issued by the Full Court. The Full Court was required to determine whether the primary judge was disqualified from re-exercising the discretion under s 79 of the Act and whether the remittal order allowed for the introduction of new evidence or submissions. The court had to balance the principles of family law practice and procedure with the need for clear and comprehensive reasons for the property settlement orders, while also considering the potential for reopening evidence and issues already settled in the first trial.
The Full Court concluded that the primary judge was not inevitably disqualified from re-exercising the discretion under s 79 of the Act, as the task involved no questions of credit or the resolution of controversial evidence. The remittal order did not forbid the introduction of new evidence or submissions, but the Full Court warned that attempts to reopen evidence and issues already settled in the first trial were not condoned. The primary judge was mistaken in rejecting the wife's attempt to file further material, as the remitter order did not explicitly forbid it. However, the Full Court emphasized that the remittal order was not intended to permit the reopening of evidence and issues already traversed in the first trial and settled by the first trial judgment.
The Full Court's decision in Yarrow & Yarrow (No 3) highlights the importance of providing clear and comprehensive reasons for property settlement orders in family law cases. The court balanced the need for adequate reasons with the principles of family law practice and procedure, ultimately concluding that the primary judge was not disqualified from re-exercising the discretion under s 79 of the Act. The Full Court also clarified the scope of the remittal order, allowing for the introduction of new evidence or submissions, but cautioned against reopening evidence and issues already settled in the first trial. The primary judge's rejection of the wife's attempt to file further material was deemed mistaken, as the remitter order did not explicitly forbid it. The Full Court's decision underscores the importance of adhering to the principles of family law practice and procedure while ensuring that property settlement orders are supported by clear and comprehensive reasons.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.