Yarrow & Yarrow (No 3) - [2023] FedCFamC2F 162

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yarrow & Yarrow (No 3) [2023] FedCFamC2F 162

File number(s): HBC 188 of 2020

Judgment of: JUDGE TAGLIERI

Date of judgment: 8 February 2023

Catchwords: FAMILY LAW – procedure and practice – delivery of judgment on remittal from the Full Court on appeal – request by the respondent to delay deliver of judgment to allow time for the respondent to file further applications and evidence – application declined

Legislation: Family Law Act 1975 (Cth) s 79

Division: Division 2 Family Law

Number of paragraphs: 10

Date of hearing: 8 February 2023

Place: Hobart

The Applicant: No appearance

The Respondent: No appearance

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 ORDERS THAT:
1.The request received in Chambers by letter dated 7 February 2023 from the solicitors for the Respondent to defer or postpone the delivery of judgment in this matter is declined.

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 a pseudonym Yarrow & Yarrow (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE TAGLIERI

Before I deliver judgment in respect of this matter, it is necessary for me to make some introductory remarks due to correspondence that has been received by my chambers by email at 8.50 pm on 7 February 2023, that is yesterday. The email is from the Respondent and asks in effect that the delivery of judgment today be deferred to a later time. Accompanying the email is a letter drafted by the Respondent’s solicitors who have recently filed a Notice of Address for Service according to the letter from Taussig Cherrie Fildes dated 7 February 2023.
The letter from the solicitors for the Respondent outlines various procedural history to these matters, and in particular the Full Court’s judgment in October, that is 20 October 2022, remitting the property proceedings to me, and in particular goes on to ask as follows:
Our client respectfully requests that judgment not be delivered in this matter until she has been given an opportunity to be heard, including:
(a)as to an application for disqualification of Judge Taglieri on the basis 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 3)

Details

AGLC: Yarrow & Yarrow (No 3) [2023] FedCFamC2F 162
Case: [2023] FedCFamC2F 162
Decision Date

CaseChat Overview and Summary

The case of Yarrow & Yarrow (No 3) involves Mr Yarrow, the Applicant, and Ms Yarrow, the Respondent. The matter pertains to family law, specifically the delivery of judgment on remittal from the Full Court on appeal. The dispute revolves around the delivery of judgment in property proceedings and whether it should be deferred to allow the Respondent to file further applications and evidence. The matter was heard in the Federal Circuit and Family Court of Australia (Division 2) and the judgment was delivered by Judge Taglieri on 8 February 2023. The key legal issues before the court were whether the delivery of judgment should be deferred to allow the Respondent to file further applications and evidence, and if the Respondent's request for disqualification of Judge Taglieri based on prejudgment and apprehended bias was valid.

Judge Taglieri declined the Respondent's request to defer the delivery of judgment. The court held that the Full Court's orders remitting the matter to the judge were made on 20 October 2022, over three months prior to the request. The judge considered that the Respondent had ample opportunity to make the applications foreshadowed if it was her intention to do so. The Full Court's reasons for judgment made it clear that there had been no successful challenge to the facts found by the judge at first instance, and the court did not contemplate the reopening of the Respondent's case for the adducing of further evidence. The judge also found that the application for his disqualification was misconceived, as it ought to have been brought as an Application in a Proceeding, and the Respondent had the benefit of legal advice and experienced counsel in the appeal. The judge concluded that it was not in the interests of justice to delay the delivery of judgment, and that it was consistent with the overarching purpose of the court to not delay proceedings and not unnecessarily incur cost to the parties or waste the court's resources.

The court delivered the reasons on remittal and made orders in accordance with paragraphs 1 to 11 of the judgment that is now published. The judge also made a declaration that the orders made on 24 December 2021 in respect of proceedings under s 79 of the Family Law Act 1975 (Cth) represent a just and equitable distribution of the property of the parties.

Orders