Xin & Qinlang

Case [2024] FedCFamC1A 150

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Xin & Qinlang [2024] FedCFamC1A 150

Appeal from: Xin & Qinlang (No 6) [2024] FedCFamC1F 8
Appeal number: NAA 37 of 2024
File number: CAC 1782 of 2018
Judgment of: ALSTERGREN CJ, TREE & RIETHMULLER JJ
Date of judgment: 10 September 2024
Catchwords: FAMILY LAW – APPEAL – Property – Where the contributions of the spouses were equal – Where the net assets of the spouses be divided as to 60 per cent in the wife’s favour – Whether the primary judge erred in not considering the wife’s cohabitation with her partner – Where the husband was self-represented at trial – Where the husband is bound by his conduct at trial – Where there is no substantial injustice – Whether the primary judge failed to consider the effect of orders in monetary terms – Where adequate consideration was given – Appeal dismissed – Costs ordered
Legislation: Family Law Act 1975 (Cth) ss 75, 102NA
Cases cited:

Barker & Barker [2007] FamCA 153

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Candle & Falkner (2021) FLC 94-069; [2021] FedCFamC1A 102

Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2

Lovine & Connor and Anor (2012) FLC 93-515; [2012] FamCAFC 168

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Murray & Murray (2020) FLC 94-000; [2020] FamCAFC 293

Phipson & Phipson [2009] FamCAFC 28

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 31
Date of hearing: 29 May 2024
Place: Heard in Sydney, delivered in Melbourne
Counsel for the Appellant: Mr Jones SC
Solicitor for the Appellant: Longton Legal
Counsel for the First Respondent: Mr Richardson
Solicitor for the First Respondent: Dobson Davey Clifford Simpson
Solicitor for the Second Respondent: Lander & Rogers (did not appear) – Submitting Notice filed 16 May 2024
Solicitor for the Third Respondent: Lander & Rogers (did not appear) - Submitting Notice filed 16 May 2024
The Fourth Respondent: Did not participate

ORDERS

NAA 37 of 2024

CAC 1782 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR XIN

Appellant
AND:

MS QINLANG

First Respondent

MR B XIN

Second Respondent

MS WANG
Third Respondent

MR P
Fourth Respondent

ORDER MADE BY:

ALSTERGREN CJ, TREE & RIETHMULLER JJ

DATE OF ORDER:

10 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs in the sum of $18,703 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…

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AGLC
Xin & Qinlang [2024] FedCFamC1A 150
Case
[2024] FedCFamC1A 150
Decision Date

CaseChat Overview and Summary

In the case of Xin & Qinlang, the appellant, Mr Xin, appealed a decision by the primary judge concerning the division of property between himself and the first respondent, Ms Qinlang. The appeal was heard by the Federal Circuit and Family Court of Australia, which was required to determine whether the primary judge erred in not considering Ms Qinlang’s cohabitation with her partner and whether the primary judge failed to consider the effect of orders in monetary terms. The primary judge had determined that the net total pool available for division was approximately $2,857,000 and that the contributions of both parties were equal. The court subsequently divided the property in favour of Ms Qinlang by 60 per cent.

The appellant argued that the primary judge erred in not taking into account Ms Qinlang’s cohabitation with her new partner, Mr AK, under section 75(2)(m) of the Family Law Act 1975 (Cth), which mandates consideration of whether either party is cohabiting with another person and the financial circumstances of that cohabitation. The appellant contended that the primary judge failed to consider this factor, which should have led to a different property division. However, the court found that the appellant did not raise this issue before the primary judge and failed to demonstrate how this circumstance could be of significant weight. The omission of a specific reference to this factor in the judgment did not indicate that the primary judge overlooked it, as the court was satisfied that the primary judge had carefully considered the parties’ circumstances.

Additionally, the appellant argued that the primary judge failed to consider and analyse the effect of the adjustment in monetary terms. The court found that the primary judge had given adequate consideration to the effect of the orders in monetary terms and that the appellant’s argument lacked merit. Therefore, the court dismissed the appeal and ordered that the appellant pay the first respondent’s costs of the appeal, which totalled $18,703 on a party-party basis.

Orders

Orders of the court

NAA 37 of 2024

CAC 1782 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR XIN

Appellant

AND:

MS QINLANG

First Respondent

MR B XIN

Second Respondent

MS WANG

Third Respondent

MR P

Fourth Respondent

ORDER MADE BY:

ALSTERGREN CJ, TREE & RIETHMULLER JJ

DATE OF ORDER:

10 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs in the sum of $18,703 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).

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 appellant was represented for most of the proceeding, including at the time of filing affidavit evidence for the trial, however self-represented at the trial.BACKGROUND The primary judge determined the net total pool available for division between the appellant and first respondent was approximately $2,857,000, and the overall contributions of the parties to be equal, neither of which are challenged on appeal. The primary judge then turned to the considerations contained in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), determining that:(a)The first respondent has sole ongoing care of the two children of the marriage. Due to the history of the appellant’s contribution towards the children, there was “little scope for optimism that anyone other than [the first respondent]” will bear the financial burden of raising the children (at [296]). His Honour had earlier determined that post-separation, the appellant’s direct involvement with the care of the children had been “non-existent” and contributions to the “upkeep” of the children had been limited (at [292]).(b)The first respondent is university educated and has business experience which provides a degree of confidence as to her future (at [296]). The appellant is also educated and has secured employment in the public service, but unlike the first respondent, he has his employment to “fall-back” on compared to the first respondent who faces a degree of uncertainty in relying on her business prospects (at [297]). (c)The appellant was in a “significantly better position than [the first respondent] in respect of superannuation, a matter further emphasising a future differential between the parties” (at [298]). The parties’ superannuation had earlier been determined to be $9,394 for the first respondent, and $180,000 for the appellant (at [277]–[278]).(d)The income of the appellant, whilst employed in the public service, was described as “significant” (at [297]). Comparatively, the first respondent’s post-separation income was earlier described as “minimal” (at [294]). As identified at the appeal hearing these findings were based upon the evidence that the appellant’s income, after payment of tax, is about $112,000–$120,000 (per annum) and the first respondent’s annual income (inclusive of government benefits) is about $25,000 (Appeal Transcript 29 May 2024, p.7 lines 35–42). After considering the identified s 75(2) factors, the primary judge divided the property of the parties with 60 per cent in favour of the first respondent. GROUND OF APPEAL The appellant relied on one ground of appeal stating that:The learned trial judge erred in making a section 75(2) adjustment of 10% in favour of the first respondent by: (a)failing to take into account a relevant consideration, namely the financial circumstances of the first respondent’s cohabitation with her new partner pursuant to section 75(2)(m); and (b)failing to consider and analyse the effect of the adjustment in monetary terms. Whether the primary judge failed to take into account a relevant consideration (Ground (a))

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

We find no merit in this part of the appellant’s ground of appeal.CONCLUSION For these reasons we are not persuaded that the appellant has demonstrated an appealable error on the part of the primary judge and therefore the appeal must be dismissed. COSTS The first respondent sought costs in the event that the appeal was dismissed. The appellant has been entirely unsuccessful. It is appropriate that he pay the first respondent’s costs of the appeal. The first respondent filed two Schedules setting out her costs, which she says total $18,703 on a party-party basis. We accept that the costs in the Schedules represent her party-party costs and make orders accordingly.

Ratio Decidendi

Legal Principle Established

The appellant relied on one ground of appeal stating that:The learned trial judge erred in making a section 75(2) adjustment of 10% in favour of the first respondent by: (a)failing to take into account a relevant consideration, namely the financial circumstances of the first respondent’s cohabitation with her new partner pursuant to section 75(2)(m); and (b)failing to consider and analyse the effect of the adjustment in monetary terms. Whether the primary judge failed to take into account a relevant consideration (Ground (a)) The appellant argued that the primary judge fell into error by failing to take into account the financial circumstances of the first respondent’s cohabitation with her new partner (“Mr AK”) in accordance with s 75(2)(m), which provides that the matters to be taken into account includes “if either party is cohabiting with another person” and “the financial circumstances relating to the cohabitation”. The cohabitation was not expressly referred to in the reasons. The first respondent set out in her Financial Statement filed 7 November 2023 that Mr AK contributes approximately $200 per week to “share of household expenses”. She has only been in a relationship with him since mid-2020 and there is no evidence from which to assess the relative stability of this relationship. Mr AK set out that he and the first respondent “share our bills. We don’t have strict rules for who is paying for what” (Affidavit of AK filed 6 November 2023, paragraph 8). Whilst the first respondent’s Financial Statement estimates that $200 per week is paid by Mr AK to household expenses, it is apparent from his affidavit that it is his contribution to the joint expenses. The evidence of the first respondent’s cohabitation with Mr AK is, at best, of only marginal financial benefit. Indeed, it may be of no net financial benefit to the first respondent once the additional costs to the household, as a result of Mr AK’s presence, are taken into account. The trial ran for seven days and resulted in a detailed judgment of 315 paragraphs. Whilst the appellant self-represented, he had access to the Commonwealth Family Violence Cross Examination Scheme funding for legal representation, as a result of a final Family Violence Intervention Order and a consequent order pursuant to s 102NA of the Act (at [8]). However, it is apparent that he did not take up the option of being legally represented at the trial pursuant to the scheme. Significantly, the appellant did not file an Outline of Case prior to trial, did not advance an argument before the primary judge to the effect that the first respondent’s cohabitation with Mr AK should be taken into account, nor articulate how any real weight could be placed upon this circumstance. The omission of a specific reference by the primary judge to this factor does not demonstrate that his Honour overlooked the issue. It is clear that the primary judge had careful regard to the parties’ circumstances. The post-separation circumstances of the parties were discussed at [290]–[295]. Then at [296] the primary judge identified that there are matters pursuant to s 75(2) that “point to a further adjustment in favour of the [first respondent]”. We do not read this part of the judgment as intending to cover all the minutiae of the first respondent’s circumstances, rather, it was to identify the significant factors justifying an adjustment pursuant to s 75(2). It is not necessary for a judge to set out every fact and circumstance that may be relevant to a decision. Had the appellant raised this issue before the primary judge it may have been necessary to address the matter specifically in the reasons, however the issue was never raised at the trial.