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 prejudgment and apprehended bias as foreshadows in the submissions filed with the Full Court on behalf of [Ms Yarrow] on 16 September 2022, and referred to in the reasons delivered by the Full Court on 20 October 2022; and
(b)the filing of further evidence to enable to Court to properly give further consideration on the just and equitable division of the property of the parties under section 79 of the Act as required by the Full Court’s remitter.
The letter concludes by indicating that the Respondent opposes the delivery of judgment today and confirms that counsel for the Respondent, Dr Smith, who appeared on behalf of the Respondent on the appeal, is not available, but can appear on Thursday or Friday this week by Microsoft Teams.
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 Respondent 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 Respondent’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 Respondent’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.
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 Respondent’s case for the adducing of further evidence, nor the opportunity to the Respondent 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 Taussig Cherrie Fildes[1] is misconceived.
[1] At [2] of these reasons.
With respect to the application for my disqualification, I acknowledge that that was the subject of submissions before the Full Court, and that the Full Court did address that in the reasons it delivered on 20 October 2022. I return to observe that the Respondent already had in her mind a contention that I would prejudge this matter on remitter as early as 20 October 2022, yet more than three months have passed and no application for my recusal has been made. It is my understanding that such an application ought to have been brought as an Application in a Proceeding. The Respondent had the benefit of legal advice in the appeal; she also had the benefit of very experienced counsel in the appeal. I consider it undesirable and certainly not in the interests of justice to both parties in this case for the delivery of judgment to be delayed, and I consider that I ought to do what the Full Court instructed me to do at paragraph 6 of the reasons for judgment of 20 October 2022.
Accordingly, I intend to deliver the reasons on remittal.
I add to my reasons that this Court is governed by an overarching purpose of not delaying proceedings and not unnecessarily incurring cost to the parties or wasting the Court’s resources. The primary judgment in this matter, which was the subject of the appeal, was delivered on 24 December 2021, well over 12 months ago. I consider that it is consistent with the overarching purpose that I deliver the remittal judgment today.
The Respondent has indicated that she has attempted to file proceedings with the Court, but I observe that by her own admission that was only since 25 January 2023. I observe that that is three months after the delivery of the Full Court’s judgment remitting the matter to me. For all of those reasons, I propose to deliver judgment in this matter.
For the reasons that I now publish in writing, there will be orders in accordance with paragraphs 1 to 11 of the judgment that is now published. I will not stay to read those orders onto the record. They will be published today, and are extensively long and I need to move on to other matters that I have before me this morning. However, it is useful to observe that I have also made a declaration as follows: 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.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 17 February 2023
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