FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Qin & Donato [2023] FedCFamC1A 223
Appeal from: Qin & Donato (No 2) [2023] FedCFamC2F 1214 Appeal number(s): NAA 257 of 2023 File number(s): SYC 7664 of 2021 Judgment of: ALDRIDGE J Date of judgment: 11 December 2023 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – SPOUSE MAINTENANCE – De facto relationship – Application for Review of refusal of interim spouse maintenance rejected by primary judge – Where leave depends on the merits of the appeal – Appellant’s expenses exceeded her income but primary judge found she had been able to adequately support herself – No expenses rejected as unreasonable – Focus was on expenses rather than reasonable needs – Failure to consider the appellant’s previous standard of living – Incorrect application of subsistence level as the standard for spouse maintenance – Finding that the appellant was not fully exercising her earning capacity did not remedy the shortfall in income – Substantial injustice would flow if leave refused – Leave to appeal granted – Appeal allowed – Respondent to bear the costs of the appeal. Legislation: Family Law Act 1975 (Cth) s 90SF
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28, 67, 68
Federal Proceedings (Costs) Act 1981 (Cth) s 6
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited: Bevan and Bevan (1995) FLC 92-600; [1993] FamCA 95
Brown and Brown (2007) FLC 93-316; [2007] FamCA 151
Evans and Evan (1978) FLC 90-435; [1978] FamCA 23
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
House v The King (1936) 55 CLR 499; [1936] HCA 40
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Mitchell and Mitchell (1995) FLC 92-601; [1995] FamCA 32
Redman and Redman (1987) FLC 91-805; [1987] FamCA 2
Williamson and Williamson (1978) FLC 90-505; [1978] FamCA 57
Wilson and Wilson (1989) FLC 92-033; [1989] FamCA 34
Number of paragraphs: 45 Date of hearing: 11 December 2023 Place: Sydney Counsel for the Appellant: Mr Cohen Solicitor for the Appellant: Abu Legal Counsel for the Respondent: Mr Ahmad Solicitor for the Respondent: Australian Criminal & Family Lawyers ORDERS
NAA 257 of 2023
SYC 7664 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS QIN
Appellant
AND: MR DONATO
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
11 DECEMBER 2023
THE COURT ORDERS THAT:
1.Leave is granted for the appellant to amend the grounds of appeal contained in the Notice of Appeal filed 15 September 2023.
2.Leave to appeal is granted.
3.The appeal is allowed.
4.Order 2 of the orders dated 18 August 2023 is set aside.
5.The balance of the Application for Review is remitted for rehearing by a judge other than the primary judge.
6.The respondent is to pay the appellant’s costs of the appeal fixed in the sum of $17,000 within 28 days.
Note: The form of the order is subject…
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- Qin & Donato [2023] FedCFamC1A 223
- Case
- [2023] FedCFamC1A 223
- Decision Date
CaseChat Overview and Summary
The court granted leave to appeal, finding that there were substantial grounds for the appeal. The primary judge's focus on Ms Qin's expenses rather than her reasonable needs was deemed inappropriate. Additionally, the court held that the primary judge failed to consider Ms Qin’s previous standard of living, which should have been factored into the assessment of her maintenance needs. The court also noted an incorrect application of the subsistence level, which was too low given Ms Qin’s circumstances. The finding that Ms Qin was not fully exercising her earning capacity did not address the shortfall in her income. The court concluded that a substantial injustice would flow if leave was refused, thereby granting leave to appeal and allowing the appeal.
In summary, the court set aside the primary judge's order, remitted the balance of the application for review to be reheard by a different judge, and ordered that Mr Donato bear the costs of the appeal amounting to $17,000 within 28 days. The form of the order was subject to review and potential variation as per the applicable court rules.
Orders
Orders of the court
NAA 257 of 2023
SYC 7664 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS QIN
Appellant
AND:
MR DONATO
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
11 DECEMBER 2023
THE COURT ORDERS THAT:
1. Leave is granted for the appellant to amend the grounds of appeal contained in the Notice of Appeal filed 15 September 2023.
2. Leave to appeal is granted.
3. The appeal is allowed.
4. Order 2 of the orders dated 18 August 2023 is set aside.
5. The balance of the Application for Review is remitted for rehearing by a judge other than the primary judge.
6. The respondent is to pay the appellant’s costs of the appeal fixed in the sum of $17,000 within 28 days.
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).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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