Lei and Xiao and Ors - [2020] FamCA 221

FAMILY COURT OF AUSTRALIA

LEI & XIAO AND ORS

[2020] FamCA 221

FAMILY LAW – PROPERTY – INTERIM PROPERTY – Spousal maintenance – Where the wife seeks orders for urgent periodic and lump sum spousal maintenance – Where the husband opposes the wife’s application and contends she has not disclosed all cash and financial resources available to her – Where the husband seeks orders for interim injunctions made by the Court to be varied for him to access funds held in a cash investment account – Where both parties contend the other has not provided full and frank disclosure – Whether the Court makes an order for spousal maintenance pursuant to s 77 or s 74 of the Family Law Act 1975 – Whether the wife is in immediate need of financial assistance – Orders made for the funds in the cash investments account to be released weekly to the husband and wife by way of periodic spousal maintenance – Orders made for the husband to pay lump sum payments to creditors – Orders made for the husband to pay certain periodic payments primarily related to expense in respect to the former matrimonial home.

Family Law Act 1975 (Cth) ss 72(1), 74, 75(2), 77

Acton & Burton [2015] FamCA 469
Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170
Chapman & Chapman (1979) FLC 90-671
Cutler v Wandsworth Stadium Ltd [1945] 1 All ER 103
Hall v Hall (2016) 257 CLR 490
Iphostrou & Iphostrou [2011] FamCA 20
Kelly & Kelly (No 2) (1981) FLC 91-108
Masters Home Improvement Pty Ltd v North East Solution Pty Ltd (2017) 372 ALR 440
Redman & Redman (1987) FLC 91-805
Stein v Stein (2000) FLC 93-004

APPLICANT:

Ms Lei

1st RESPONDENT:

Mr Xiao

2nd RESPONDENT:

Mr M Xiao

3rd RESPONDENT:

Ms Xiao

4th RESPONDENT:

Mr N Xiao

FILE NUMBER:

SYC

3259

2019

DATE DELIVERED:

9 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

20 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Connor

SOLICITOR FOR THE APPLICANT:

JC Legal Practice

COUNSEL FOR THE 1ST RESPONDENT:

Ms Druitt

SOLICITOR FOR THE 1ST RESPONDENT:

AMG Law Firm

COUNSEL FOR THE 2^ND, 3^RD AND 4^TH RESPONDENTS:

Ms Coulton

SOLICITOR FOR THE 2^ND, 3^RD AND 4^TH RESPONDENTS:

WB Legal

Orders

PENDING FURTHER ORDER THE COURT ORDERS THAT:

That the restraints set out in Orders 1, 2 and 3 of the Orders made on 3 July 2019 are varied to the extent that it is necessary for Mr Xiao (“the husband”) to make the payments set out in these Orders.
That the sum of $500 per week be made available to the husband from the investment income at B Bank Account Number: …04.
That the outstanding school fees of the parties’ children, X born … 2005 and Y born … 2012 (collectively referred to as “the children”), as well as the children’s ongoing school fees shall…

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.

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Details

Case: [2020] FamCA 221
Decision Date: 9 April 2020

CaseChat Overview and Summary

This matter came before McClelland DCJ concerning an application to vary interim orders made on 3 July 2019 between Ms Lei (the wife) and Mr Xiao (the husband). The dispute involved the husband's access to investment income to meet his living expenses and the payment of various child-related and household expenses, as well as spousal maintenance.

The court was required to determine whether to vary the existing restraints on the husband's access to his investment income to allow him to meet his accommodation and living expenses, given his changed circumstances of no longer residing in the former matrimonial home. Additionally, the court had to consider the husband's requests for orders regarding the payment of outstanding and ongoing school fees for the parties' children, statutory outgoings for the former matrimonial home, and various lump sum and recurring payments to creditors and for household expenses. The court also considered the wife's opposition to certain orders, particularly concerning the provision of documentation that could facilitate the obtaining of passports for the children, due to ongoing parenting disputes.

McClelland DCJ applied the principle from *Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated* (1981) 148 CLR 170, which confirms a court's power to vary its own interim orders when new facts arise that render enforcement unjust, provided these changed circumstances are established by evidence. The court found that the husband, no longer living in the former matrimonial home, required access to his income for accommodation and living expenses, and the requested $500 per week was not unreasonable. The court also acceded to the wife's lack of objection to the husband's proposed order for recurring expenditure payments. However, the court declined to make orders facilitating the husband obtaining passports for the children without addressing the parenting dispute and appropriate safeguards, given both parties' Chinese citizenship and connection to that country.

The court made orders varying the existing restraints to allow the husband access to $500 per week from his investment income. It further ordered that outstanding and ongoing school fees for the children, as well as statutory outgoings for the former matrimonial home, be paid from the same investment income. The court also ordered the husband to pay urgent spousal maintenance of $776.71 per week for six months, and to make various lump sum payments to creditors for school fees, sports expenses, a washing machine, roof maintenance, and car expenses, all to be paid from the investment income. Additionally, recurring weekly expenses for language classes, utilities, and internet/phone were to be paid monthly in arrears from the investment income upon production of payment vouchers by the wife. The wife was also ordered to provide any mail and documents received in the husband's name to his solicitors within seven days of receipt.

Orders

Orders of the court

PENDING FURTHER ORDER THE COURT ORDERS THAT:

That the restraints set out in Orders 1, 2 and 3 of the Orders made on 3 July 2019 are varied to the extent that it is necessary for Mr Xiao (“the husband”) to make the payments set out in these Orders.

That the sum of $500 per week be made available to the husband from the investment income at B Bank Account Number: …04.

That the outstanding school fees of the parties’ children, X born … 2005 and Y born … 2012 (collectively referred to as “the children”), as well as the children’s ongoing school fees shall be paid by direct debit from the investment income at B Bank Account Number: …04 upon invoices being provided from each child’s school.

That all statutory outgoings, including water and council rates, for the property at C Street, Suburb D New South Wales (“the Suburb D property”) shall be paid by direct debit from the investment income at B Bank Account Number: …04 upon invoices being provided.

That Ms Lei (“the wife”) shall provide all mails and documents received in the name of the husband within seven (7) days of the receipt of such documents to the husband’s solicitors.

PURSUANT TO SECTION 77 OF THE FAMILY LAW ACT 1975 (CTH), FOR A PERIOD OF SIX (6) MONTHS FROM THE DATE OF THESE ORDERS, THE COURT ORDERS THAT:

That the husband do all acts and things necessary, sign all necessary documents and give all such directions and authorities as may be necessary to pay or cause to be paid to the wife the sum of $776.71 per week by way of urgent spousal maintenance.

That the monies payable by the husband pursuant to Order 6 shall be paid from the B Bank Account Number: …04 into the Commonwealth Bank of Australia Account BSB: … Account Number: …19 (“the wife’s bank account”) or such other bank as the wife shall nominate in writing PROVIDED FURTHER that such payment(s) are to commence no later than close of business on Tuesday, 14 April 2020, and weekly thereafter on each Tuesday.

That the husband do all acts and things necessary, sign all necessary documents and give all such directions and authorities as may be necessary to pay or cause to be paid, from the B Bank Account Number: …04, the following lump sum amounts to the following creditors:

(a) E College (Biller Code: …Ref: …) – $5,007.00;

(b) F Primary School (Biller Code: … Ref: …) – $7,382.00;

(d) H Sports Club (BSB: … Account Number: …53) – $255.00;

(e) New washing machine for the Suburb D property to JC Legal Practice Trust Account at the Commonwealth Bank of Australia (BSB: …16 Account Number: …81) – Note: Pay on delivery to the amount of up to $1,600

(f) Roof maintenance to J Pty Ltd (BSB: … Account Number: …27) – $850.00; and

(g) Car registration and/or service to K Pty Ltd (BSB: … Account Number: …15) – $728.00.

That the husband do all acts and things necessary, sign all necessary documents and give all such directions and authorities as may be necessary to, upon production of payment vouchers by the wife to the husband, pay from the B Bank Account Number: …04 the following as recurring expenditure on a weekly basis payable monthly in arrears to be paid to the appropriate debtors/entities by direct debit:

(a) Language Classes – $28;

(b) Gas – $16;

(d) Electricity – $76.92; and

(e) Internet and phone package – $50.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

In Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 178, the majority confirmed the power of a Court to vary its own interim orders stating:A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust. Of course, the changed circumstances must be established by evidence. [Emphasis added, citations omitted] In that decision, the High Court applied Cutler v Wandsworth Stadium Ltd [1945] 1 All ER 103 in confirming that the onus rests upon the person seeking to vary the consent or interim order to establish those changed circumstances. In circumstances where the Respondent husband is no longer living in the former matrimonial home, I am satisfied that he requires access to his income in order to meet his accommodation and living expenses. Having regard to the expenses which he lists in his Financial Statement filed 24 September 2019, the amount of $500 which the Respondent husband seeks to access from those funds on a weekly basis is not unreasonable. I will, therefore, make that order sought by the Respondent husband. The Applicant wife has no objection to the Court making an order in terms of proposed order 9 sought by the Respondent husband. I will, therefore, make that order. The Applicant wife has, however, opposed the Court making the proposed order 8 as sought by the Respondent husband in circumstances where the Applicant wife states that she has not been provided with a sufficient explanation by the Respondent husband as to why he wants the documentation and in circumstances where the provision of the documentation would enable the Respondent husband to obtain passports for the children. The Applicant wife contends that, in circumstances where there is a live dispute between the parties in respect to parenting arrangements, it would not be appropriate, at this stage of the proceedings, to provide that documentation to the Respondent husband without additional orders to create safeguards to prevent either parent from removing the children from the Commonwealth of Australia without the consent of the other parent or without further order of the Court. During the course of these proceedings, I was not addressed by the parties in respect to the dispute between them relating to parenting arrangements for the children. At this point in time, it would, therefore, be inappropriate for me to make orders facilitating the Respondent husband obtaining passports for the children without being addressed by the parties in respect to safeguards that might be appropriate to prevent either party from removing the children from the Commonwealth of Australia. That concern is in circumstances where both of the parties are citizens of China and clearly retain a close connection to that country. Accordingly, for the reasons set out in this decision, I make the Orders as set out at the commencement of these reasons for judgment.

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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