Xinyi & Qiu - [2022] FedCFamC2F 1715

Federal Circuit and Family Court of Australia
(DIVISION 2)
Xinyi & Qiu [2022] FedCFamC2F 1715

File number(s): PAC 519 of 2021

Judgment of: JUDGE NEWBRUN

Date of judgment: 13 December 2022

Catchwords: FAMILY LAW – PROPERTY – Property adjustment final hearing – Just and equitable property adjustment orders made.

Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(2), 102NA

Cases cited: Lotta & Lotta [2017] FamCA 50

Division: Division 2 Family Law

Number of paragraphs: 56

Date of last submission/s: 17 November 2022

Date of hearing: 11 November 2022

Place: Parramatta

Counsel for the Applicant: Mr O’Reilly

Solicitor for the Applicant: Sharon Payne Family Lawyers

Solicitor for the Respondent: The Respondent appeared in person
ORDERS

PAC 519 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS XINYI

Applicant

AND:
MR QIU

Respondent

Ordermade by:

JUDGE NEWBRUN

DATE OF ORDER:

13 DECEMBER 2022

THE COURT ORDERS THAT:
1.In accordance with the Orders below, and by way of settlement of property pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”), the net assets (including superannuation) of the parties and either of them be divided in the proportion 55 per cent/45 per cent in favour of the Wife.
2.Within 28 days of the date of these Orders, the parties shall do all acts and things and sign all documents necessary so as to effect sale of the property situate at and known as B Street, Suburb C being the whole of the land contained in Certificate of Title, folio identifier … (“the B Street, Suburb C Property”) in the following manner:
(a)The parties shall retain D Law Firm to act as the conveyancer on the sale and shall provide all information and do all things necessary for the conveyancer to prepare a contract for sale for the B Street, Suburb C Property;
(b)The parties shall list the B Street, Suburb C Property for sale by public auction with Real Estate Agent E;
(c)The reserve price for the purpose of such auction will be such as the parties agree upon within seven (7) days of the B Street, Suburb C Property being listed for auction, or in the absence of agreement, is to be determined by the Agent;
(d)In the event the bidding at the auction does not reach the reserve price, the parties may negotiate with the highest bidder or any other interested person and effect a sale of the B Street, Suburb C Property at a price agreed by the parties, but failing agreement, the parties must accept any offer within five per cent below the reserve price and must sell the property at that price;
(e)In the event the B Street, Suburb C Property remains unsold within fourteen (14) days of the auction provided for in Order 2(b), the parties shall do all acts and things and sign all documents necessary to immediately relist the B Street, Suburb C Property for sale by public auction again, on a date nominated by the…

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 Xinyi & Qiu

Details

AGLC: Xinyi & Qiu [2022] FedCFamC2F 1715
Case: [2022] FedCFamC2F 1715
Decision Date

CaseChat Overview and Summary

In the case of Xinyi & Qiu, the Federal Circuit and Family Court of Australia (Division 2) made orders in relation to the division of the parties' property following their separation. The court considered the parties' contributions to the accumulation of their assets, both during their relationship and post-separation, as well as other relevant factors under the Family Law Act 1975 (Cth). The court ordered that the net assets of the parties, including superannuation, be divided in the proportion of 55% to the Wife and 45% to the Husband. The court also made orders for the sale of certain properties, the payment of debts and liabilities, and the transfer of certain assets to the Wife. The court found that it was just and equitable to make these orders, taking into account the Wife's primary carer role for their child, the Husband's failure to provide adequate financial disclosure, and other relevant factors.

Based on the court's orders, the Wife will receive a greater proportion of the parties' net assets due to the factors considered by the court. The court's decision demonstrates the importance of considering the contributions of both parties to the accumulation of their assets, as well as other relevant factors, in determining the division of property following a separation.

Orders