Qiu & Xinyi - [2023] FedCFamC1A 62

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Qiu & Xinyi [2023] FedCFamC1A 62

Appeal from: Xinyi & Qiu [2022] FedCFamC2F 1715

Appeal number(s): NAA 2 of 2023

File number(s): PAC 519 of 2021

Judgment of: AUSTIN J

Date of judgment: 4 May 2023

Catchwords:
FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – No denial of procedural fairness – Unsupported allegations of collusion – Where the husband could not establish discretionary error – Where the appeal lacks merit – Appeal dismissed – Self-represented parties – No question of costs.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the husband applied “to extend time for abandoning the Appeal” – Where the husband confirmed he was not abandoning the appeal – Where the application could be construed as an application for an adjournment of the appeal hearing – Where the application lacks merit – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VIII, ss 102NA and 75(2)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 192

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 4.01, 4.04, 4.05

Cases cited:
Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1

DairyFarmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458; [1963] HCA 59

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Stead v State Government Insurance Office (1986) 161 CLR 141; [1986] HCA 54

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Number of paragraphs: 71

Date of hearing: 4 May 2023

Place: Sydney

The Appellant: Litigant in person

The Respondent: Litigant in person
ORDERS

NAA 2 of 2023
PAC 519 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR QIU

Appellant

AND:
MS XINYI

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

4 May 2023

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 16 March 2023 is dismissed.
2.The Response to an Application in an Appeal filed on 24 March 2023 is dismissed.
3.The appeal is dismissed.

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).
IT IS NOTED that publication of this judgment by this Court under a pseudonym Qui & Xinyi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

By a Notice of Appeal filed on 3 January 2023, the husband appeals from…

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 Qiu & Xinyi

Details

AGLC: Qiu & Xinyi [2023] FedCFamC1A 62
Case: [2023] FedCFamC1A 62
Decision Date

CaseChat Overview and Summary

In the case of Qiu & Xinyi, the husband appeals against a decision of the primary judge which related to a property settlement following the separation of the parties. The wife sought property settlement relief under Pt VIII of the Family Law Act 1975 (Cth), and the proceedings were heard in November 2022. Judgment was pronounced in December 2022. The husband subsequently filed an application in an appeal seeking an extension of time for filing documents and other orders, which was dismissed by the appeal registrar. The husband now appeals against that dismissal. The appeal raises questions concerning the availability of relief under the Family Law Rules 2004 (Cth) in circumstances where a party to the proceedings has been enjoined from cross-examining the other party due to allegations of family violence and the existence of a final family violence order in force.

The appeal hinges on the meaning and scope of r 11.16 of the Family Law Rules 2004 (Cth). This rule provides that where a party has been enjoined from cross-examining the other party due to allegations of family violence and the existence of a final family violence order in force, the court may make an order extending the time for filing documents and other relief as it considers appropriate. The husband submits that the rule is applicable to the present case and that the orders sought in the application in an appeal should be granted. The wife submits that the orders sought are inappropriate and that the appeal registrar was correct to dismiss the application in an appeal. The court must decide whether the orders sought by the husband are available under r 11.16 of the Family Law Rules 2004 (Cth).

The court finds that the orders sought by the husband are not available under r 11.16 of the Family Law Rules 2004 (Cth). The rule provides for the extension of time for filing documents and other relief as the court considers appropriate. It does not provide for the extension of time for filing documents until conditions specified by the husband are satisfied or until damages to his mental health are recovered. The orders sought by the husband are therefore outside the scope of the rule and are not available. The court finds that the appeal registrar was correct to dismiss the application in an appeal.

The appeal is dismissed. The application in an appeal is dismissed.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, the appeal is dismissed.Background The parties separated in July 2019 and in February 2021 the wife commenced proceedings seeking property settlement relief under Pt VIII of the Act. The proceedings were heard in November 2022. The primary judge rejected the wife’s proposal to conduct the hearing on an “undefended” basis due to the husband’s default in compliance with some earlier procedural orders (at [5]). The husband was cross-examined, but he was prohibited from personally cross-examining the wife by an order made under s 102NA of the Act in August 2022. However, such an order was unnecessary because the embargo on cross-examination was automatic due to the wife making allegations of family violence against the husband and there being a final family violence order in force, made by a State court against the husband for the wife’s protection. Despite the father’s consequent entitlement to legal aid funding for his legal representation at the trial, he elected not to avail of it (at [2]). Judgment was pronounced in December 2022, about a month after the trial concluded. The primary judge found neither party had any asset of significant value when they commenced cohabitation (at [24]). Contributions were found to be equal (at [31]), though an adjustment of five per cent was assessed in the wife’s favour, meaning she would receive 55 per cent of the parties’ net assets and superannuation (at [46]-[47]). To achieve the desired outcome, orders were made for four parcels of real property to be sold and the net proceeds of sale used to retire debt secured over a fifth parcel of real property (“the Suburb G property”). The wife acquired sole proprietorship of the Suburb G property. The husband was also ordered to transfer a car to the wife. Otherwise, both parties retained the assets in their respective possession and bore responsibility for their own debts.Application in an Appeal On 16 March 2023, the husband filed an Application in an Appeal, which he described as an application “to extend time for abandoning the [a]ppeal”, which description is apt to mislead because he certainly did not contemplate either the discontinuance or abandonment of the appeal. He confirmed he was not abandoning the appeal. He expressly sought orders in these terms:1.That time for filing requested documents be extended until the AVO conditions 2 and 8 against me expire or removed 2.That time for filing requested documents be extended until damages done to my mental health by the Wife’s unlawful and unethical separation conducts, being influenced and manipulated by her Lawyer, recovered (As per the original) In support of those orders, the husband relied upon his affidavit filed on 16 March 2023, in which he deposed:45.I believe that adjourning the matter until the parties can engage direct dialogue is critical and beneficial to the proceeding. …(As per the original) The application was entertained by the appeal registrar on 29 March 2023, at which time the parties were granted an extension of time within which to file their Summaries of Argument in readiness for the appeal hearing on 4 May 2023, but otherwise the application was adjourned for hearing in conjunction with the appeal. The application is dismissed because the orders it seeks are meaningless.

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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NAA 2 of 2023 PAC 519 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR QIU Appellant
AND:	MS XINYI Respondent

Appeal from:	Xinyi & Qiu [2022] FedCFamC2F 1715
Appeal number(s):	NAA 2 of 2023
File number(s):	PAC 519 of 2021
Judgment of:	AUSTIN J
Date of judgment:	4 May 2023
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – No denial of procedural fairness – Unsupported allegations of collusion – Where the husband could not establish discretionary error – Where the appeal lacks merit – Appeal dismissed – Self-represented parties – No question of costs. FAMILY LAW – APPLICATION IN AN APPEAL – Where the husband applied “to extend time for abandoning the Appeal” – Where the husband confirmed he was not abandoning the appeal – Where the application could be construed as an application for an adjournment of the appeal hearing – Where the application lacks merit – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VIII, ss 102NA and 75(2) Federal Circuit and Family Court of Australia Act 2021 (Cth) s 192 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 4.01, 4.04, 4.05
Cases cited:	Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1 DairyFarmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458; [1963] HCA 59 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Stead v State Government Insurance Office (1986) 161 CLR 141; [1986] HCA 54 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs:	71
Date of hearing:	4 May 2023
Place:	Sydney
The Appellant:	Litigant in person
The Respondent:	Litigant in person

order made by:	AUSTIN J
DATE OF ORDER:	4 May 2023