Quen & Chen

Case [2025] FedCFamC1A 39

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Quen & Chen [2025] FedCFamC1A 39  

Appeal from: Chen & Chen (No 2) [2024] FedCFamC1F 665
Appeal number(s): NAA 281 of 2024
NAA 282 of 2024
File number: MLC 5805 of 2016
Judgment of: AUSTIN, BAUMANN, SCHONELL JJ
Date of judgment: 14 March 2025
Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where leave is required to appeal from two sets of orders made by the primary judge – Where the first application seeks leave to appeal from orders permitting the respondent to provide certain documents to AUSTRAC – Where AUSTRAC is a statutory body with ostensible significant and legitimate interest in the documents – Where s 114S(1)(a) of the Family Law Act 1975 (Cth) is engaged – Where the first application is dismissed – Where the second application seeks leave to appeal from an indemnity costs order – Where the findings made by the primary judge by determination on the papers were not open and gave rise to an error of law – Where the second application for leave to appeal is allowed – Appeal allowed in part – Ordered the indemnity costs application be remitted for hearing before a judge other than the primary judge – Costs ordered to the appellant in the sum of $1500.
Legislation:

 Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)

Corporations Act 2001 (Cth) s 95A

Family Law Act 1975 (Cth) Pt XIVB ss 114Q, 114R, 114S, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 35, 36

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13

Crimes Act 1900 (NSW) ss 316, 316A

Crimes Act 1958 (Vic) ss 327, 337
Cases cited:

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615; [2023] HCA 26

CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 76

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43; [2011] NSWCA 11

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Hobart International Airport Pty Ltd v Clarence City Council (2022) 399 ALR 214; [2022] HCA 5

Kuang & Kuang [2025] FedCFamC1A 31

Littlefield & Pemble (2023) FLC 94-165; [2023] FedCFamC1A 198

Medlow & Medlow(2016) FLC 93-692; [2016] FamCAFC 34

Neil v Nott (1994) 121 ALR 148; [1994] HCA 23

Randwick City Council v Fuller (1996) 90 LGERA 380; [1996] NSWCA 444

Reese & Ralston [2021] FedCFamC1A 99

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Re W: Publication application (1997) FLC 92-756; [1997] FamCA 8

Sahadi & Savva & Anor (2016) FLC 93-704; [2016] FamCAFC 65

Stead v State GIO (1986) 161 CLR 141; [1986] HCA 54

Warren v Coombes (1979) 142 CLR 531;

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Details
AGLC
Quen & Chen [2025] FedCFamC1A 39
Case
[2025] FedCFamC1A 39
Decision Date

CaseChat Overview and Summary

In the case of Quen & Chen, the Federal Circuit and Family Court of Australia considered two applications for leave to appeal from separate sets of orders. The first application sought leave to appeal orders permitting the respondent to provide certain documents to AUSTRAC, a statutory body with a significant and legitimate interest in the documents. The second application sought leave to appeal an indemnity costs order. The court dismissed the first application, finding that the primary judge's decision to permit the respondent to provide documents to AUSTRAC was not an error of law and did not warrant leave to appeal. However, the court allowed the second application, finding that the primary judge's determination on the papers regarding the indemnity costs order was not open and gave rise to an error of law.

The court's reasoning focused on the criteria for granting leave to appeal under section 114S(1)(a) of the Family Law Act 1975 (Cth). The court held that the primary judge's decision in the first application was well within the bounds of his discretion, as AUSTRAC's interest in the documents was significant and legitimate. In contrast, the court found that the primary judge's determination on the papers regarding the indemnity costs order was flawed, as it did not properly consider the appellant's submissions and attachments. The court held that this constituted an error of law that warranted leave to appeal. The court also remitted the indemnity costs application for re-hearing by a different judge, and ordered the respondent to pay the appellant's costs in the sum of $1,500.

Orders

Orders of the court

NAA 281 of 2024

NAA 282 of 2024

MLC 5805 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS QUEN

Appellant

AND:

MR CHEN

First Respondent

MS CHEN

Second Respondent

C PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

AUSTIN, BAUMANN, SCHONELL JJ

DATE OF ORDER:

14 MARCH 2025

THE COURT ORDERS THAT:

1. In suit number NAA281/2024:

(a) The application in an appeal to adduce further evidence is dismissed.

(b) The application for leave to appeal is dismissed.

(c) There be no order as to costs.

2. In suit number NAA282/2024:

(a) The application in an appeal to adduce further evidence is granted and the affidavit of the appellant filed 17 February 2025 is admitted.

(b) The application for leave to appeal is allowed.

(c) The appeal is allowed.

(d) The orders made on 4 October 2024 are set aside.

(e) The respondent pay the appellant’s costs in the sum of $1,500 such sum to be paid within 60 days.

3. The costs application brought by the respondent against the appellant is remitted for re-hearing by a judge other than the primary judge, but not until after the following contravention and contempt applications are either discontinued or determined:

(a) the Application - Contravention filed on 29 April 2021;

(b) the Application - Contravention filed on 21 June 2021

(c) the Application - Contravention filed on 22 June 2021;

(d) the Application – Contravention filed on 3 August 2021

(e) the Application - Contravention filed on 14 September 2022;

(f) the Application – Contempt filed on 20 October 2022;

(g) the Application–- Contravention filed on 4 April 2023

(h) the Application – Contravention filed on 27 April 2023;

(i) the Application – Contravention filed on 28 April 2023; and

(j) the Application - Contravention filed on 30 May 2023

4. The primary judge is disqualified from further judicial participation in suit number MLC5805/2016.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The first (NAA281/2024) seeks leave to appeal orders made 1 October 2024 permitting the respondent to provide certain documents to AUSTRAC while the second (NAA282/2024) seeks leave to appeal an indemnity costs order made 4 October 2024.BRIEF BACKGROUND The parties to the two proposed appeals are but two of 11 parties to the extant financial proceedings that commenced in 2016. The appellant is the second respondent in the extant proceedings while the respondent to the applications for leave to appeal is the first respondent. The applicant in the extant proceedings is the respondent’s former wife while the appellant is his former de facto partner and mother of some of his children. It is unnecessary to the determination of these proposed appeals to specifically identify the other respondents other than to note that they include children of the first respondent’s marriage, two corporations, liquidators to another three corporations and receivers in relation to the three trusts. In addition to the extant proceedings there are parallel proceedings in the Supreme Court of Victoria. In circumstances where the proceedings have had their ninth anniversary, the primary judge’s observation that the proceedings have progressed at “glacial speed” is an understatement. The primary judge recorded that the proceedings came into his docket in 2020 and there had been at the time of judgment 42 appearances before the Court. At one such appearance on 5 July 2022, orders were made by consent dealing with the respondent’s application for an indemnity costs order against the appellant for a defined period and provided a timetable for the filing of affidavits and submissions. While the respondent appeared on his own at the appeal hearing, his Summary of Argument filed in NAA282/2024 was prepared by King’s Counsel. At [23] of that Summary of Argument, King’s Counsel contends that at the appearance on 5 July 2022 the primary judge indicated to the parties that his Honour would determine the question of costs on the “papers”. The order on its face does not identify how the Court intended to determine the issue of costs, but a review of the transcript makes clear that was the primary judge’s determination. As contemplated by the directions, albeit not strictly in compliance with the timetable, the parties filed their documents. Relevantly for the purposes of the second proposed appeal the appellant’s submissions open with a heading “[t]he Court is very cautious and sets a high bar in granting indemnity costs”. The submissions are 18 pages in addition to which there are numerous pages by way of attachment comprising bank statements, correspondence and schedules. The submissions are dated 25 July 2024 and respond directly to the submissions of the respondent filed on 14 July 2022. On 27 July 2022 the respondent filed submissions in reply. Notwithstanding the 5 July 2022 orders and subsequently a number of appearances before the primary judge, nothing is heard from the Court as to the fate of the indemnity costs application for over two years.

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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