Qin & Donato

Case [2023] FedCFamC1A 223


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 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…

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AGLC
Qin & Donato [2023] FedCFamC1A 223
Case
[2023] FedCFamC1A 223
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Qin sought leave to appeal against a decision by the primary judge to refuse her application for interim spouse maintenance in relation to her de facto relationship with Mr Donato. The primary judge had concluded that Ms Qin had been able to adequately support herself despite her expenses exceeding her income. The appeal focused on whether the primary judge erred in his assessment of Ms Qin's financial needs and capacity, particularly regarding the standard of living she had previously enjoyed, and whether the subsistence level was correctly applied as the standard for spouse maintenance. The court was also concerned with whether the primary judge’s finding that Ms Qin was not fully exercising her earning capacity remedied the shortfall in her income.

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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