Lei and Xiao and Ors

Case •

[2020] FamCA 221

•

9 April 2020

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 of 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 2ND, 3RD AND 4TH  RESPONDENTS: Ms Coulton
SOLICITOR FOR THE 2ND, 3RD AND 4TH  RESPONDENTS: WB Legal

Orders

PENDING FURTHER ORDER THE COURT ORDERS THAT:

  1. 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.

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

  3. 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.

  4. 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.

  5. 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:

  1. 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.

  2. 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.

  3. 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;

    (c)       Sports lesson re: Mr G (BSB: … Account Number: …90) – $214.00;

    (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.

  4. 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;

    (c)       Health insurances – $83;

    (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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lei & Xiao has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3259 of 2019

Ms Lei

Applicant

And

Mr Xiao

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This decision concerns an Application in a Case filed by Ms Lei (“the Applicant wife”) on 9 March 2020. The Applicant wife seeks  orders be made providing for Mr Xiao (“the Respondent husband”) to pay urgent spousal maintenance in the form of periodic and lump sum payments. Specifically, the Applicant wife proposes that the Respondent husband pay the amount of $1,000 per week, as well as other periodic payments in relation to the household expenses and lump sum payments to creditors. She proposes that the payments be made from specified investment funds.

  2. In his Response, the Respondent husband has indicated a preparedness to pay certain amounts by way of lump sum maintenance and some ongoing expenses in respect to the former matrimonial home. He otherwise opposes the Applicant wife’s Application on the basis that he contends she has access to capital and financial resources such that she is able to adequately support herself.

  3. The Respondent husband also seeks an order varying a previous injunction that has the effect of restraining him from accessing capital and interest held in an account. The account, which contains an amount of $5,000,000 together with accrued interest had originally been utilised as a bond which he was required to lodge in the context of an application under Australia’s migration laws. Specifically, he seeks the ability to withdraw from those funds a weekly amount of $500 together with the lump sum amounts and certain periodic expenses in respect to the former matrimonial home.

  4. The Respondent husband also seeks orders in respect to the production of certain documents by the Applicant wife, as well as an order, which is consented to by the wife, for her to forward to him any mail addressed to him that is received at the former matrimonial home in which the Applicant wife resides.

Background

  1. On … 1982, the Applicant wife was born in China. She is currently aged 37 years.

  2. On … 1982, the Respondent husband was born in China. He is currently aged 38 years.

  3. On … 2004, the parties married in China.

  4. On … 2005, the parties’ first child, X, was born. He is currently aged 15 years.

  5. On … 2012, the parties’ second child, Y, was born. He is currently aged 7 years.

  6. On 13 March 2015, the Respondent husband and the Applicant wife applied for a Business Innovation and Investment (Provisional) visa (subclass 188). The Respondent husband contends that he was the primary applicant and that the Applicant wife, as his spouse, was the secondary applicant. The difference between the parties in that respect is not material to this decision, save to the extent that the Respondent husband’s contention is consistent with the fact that he paid a substantial bond as part of the migration process.

  7. In May 2016, the parties purchased a property at C Street, Suburb D (“the Suburb D property” or “the former matrimonial home”) for an amount which the wife contends was $2.45 million and which the husband contends was $2.5 million. The difference between the parties’ contentions is not material to this decision. The husband contends that he borrowed the amount of the purchase price for the property from his father. The circumstances in which those funds were obtained from the father is an issue in dispute between the parties and is the subject of litigation before the Supreme Court of New South Wales.

  8. The parties both make allegations against the other that they have perpetrated acts of physical violence against the other during the course of their relationship. While I am unable to make findings of fact in interim proceedings, where there is a dispute between the parties in respect to those facts, it is accepted that, on … February 2017, the husband was charged with physically assaulting the wife and sentenced to 10 months’ imprisonment. Allegations that a party has engaged in acts of physical violence against another party to the proceedings are, of course, very serious and require detailed consideration at final hearing. It is not, however, necessary, in these interim proceedings, to make findings in respect to the allegations that the parties have made against each other.

  9. In July 2016, the parties and their two (2) children moved to live in Australia.

  10. On … February 2017, as noted, the Respondent husband was sentenced to 10 months’ imprisonment. The Applicant wife asserts that, of those 10 months, the Respondent husband served approximately two (2) months.

  11. In November 2017, the Respondent husband returned to China, he contends, in order to seek out business opportunities.

  12. The Applicant wife contends that, during the course of 2017, the Respondent husband made inappropriate payments to members of his family. Issues relating to those payments have been raised in proceedings before a Registrar of the Court. It is not necessary to further examine the circumstances of those payments, nor their appropriateness, in these proceedings save as to note that the fact that they remain unresolved issues is a matter relied upon by the Applicant wife in her current Application. The Applicant wife contends that, at this stage, it has been necessary for her to make an Application for urgent maintenance until she is in a position to better assess the available evidence in respect to those matters.

  13. In December 2018, the parties temporarily reconciled in China.

  14. In January 2019, the Applicant wife and the children returned to Australia.

  15. In February 2019, the Respondent husband returned to Australia and the parties resumed living together, as husband and wife, until 1 April 2019 at which time the Applicant wife contends that the parties separated but continued to live under the same roof. This remained the case, the Applicant wife contends, until 17 May 2019, when it is acknowledged that the Respondent husband returned to China.

  16. On 23 May 2019, the Applicant wife filed an Initiating Application in this Court.

  17. On 3 July 2019, interim Orders were made on an ex parte basis restraining the Respondent husband from accessing his Australian bank accounts. Those Orders were subsequently varied in November 2019. However, the restraint on the Respondent husband accessing his Australian bank accounts continued.

  18. On 29 August 2019, the Respondent husband’s brother-in-law lodged a caveat on the title of the former matrimonial home in respect to what the brother-in-law contends is an outstanding debt owed by the Respondent husband and guaranteed by the Applicant wife. Similar action was taken by the Respondent husband’s father in September 2019.

  19. In October 2019, the parties’ older son, X, commenced living with his aunt, the Respondent husband’s sister, in Suburb L.

  20. On 5 December 2019, a provisional Apprehended Violence Order (“AVO”) was made against the Respondent husband naming the Applicant wife and the two (2) children as protected persons.

  21. In January 2020, the Respondent husband’s father and brother-in-law commenced proceedings in the Supreme Court against the Respondent husband alleging that he is indebted to them in respect to loans advanced to him. The Applicant wife has been joined to those proceedings and it is alleged by the applicants that she is a guarantor of those loans.

  22. In February 2020, the Respondent husband moved into rental accommodation.

Factual Contentions

Contentions by the Applicant wife

  1. By way of summary, the factual contentions of the wife in support of the orders she seeks in these proceedings are as follows.

  2. Throughout the parties’ marriage, the Applicant wife has been the primary carer of the parties’ two (2) children and has not been employed since becoming pregnant with the parties’ second child. Accordingly, she claims that she and the children are wholly financially reliant on the Respondent husband.

  3. As the Applicant wife is currently residing in Australia on a student visa, her ability to obtain employment is subject to restrictions. She states that the likelihood of her obtaining employment in the near future is further diminished due to her limited English and skills. Furthermore, the Applicant wife contends that her busy schedule does not permit her time to search for and/or undertake any paid employment.

  4. The Applicant wife asserts that, of the two (2) children of the marriage, the youngest, Y, resides with her in the parties’ former matrimonial home while the eldest, X, has been living with the Respondent husband’s sister since October 2019. The Applicant wife contends that, to enable her to support herself and the parties’ second son, she is in urgent need of financial support.

  5. At paragraph 46 of her Affidavit filed 9 March 2020, the Applicant wife sets out a list of household items that she believes require urgent repair or replacement, totalling $3,543.80. She states, however, that the estimated cost of conducting maintenance on the roof, being $850, is likely to have been increased to $2,000 following the recent storms in Sydney. Furthermore, the Applicant wife, in paragraphs 48 and 49 of her Affidavit, details the costs associated with the children’s school and tuition fees, totalling $12,858, as well as regular periodic payments of $1,231.08 per month. The Applicant wife contends that the Respondent husband is well aware of these demands.

  6. The Applicant wife states that, throughout the course of the parties’ marriage and until early 2018, the Respondent husband has provided approximately $3,000 per month for the living expenses of herself and the children. Subsequently, until early 2019, this monthly contribution was reduced to $2,000 before such payments concluded in mid-May 2019. On 3 July 2019, Rees J made Orders providing for the balance of the Respondent husband’s bank account at W Bank to be transferred to the Applicant wife. Accordingly, the Applicant wife received $12,392.16. The Applicant wife attests that this sum, however, has been spent on the living expenses for her and the children.

  7. To accommodate her and Y’s living expenses, as well as her education and visa application fees, the Applicant wife states that she has borrowed $5,000 from her friend and a further $5,000 from her cousin. The Applicant wife acknowledges that she has received the equivalent of $71,000 from her father but she attests that this amount has been provided as a security deposit to support her student visa application and, as a result, it is not accessible by her.

  8. The Applicant wife asserts that she is in urgent need of spousal maintenance as she currently has a total of $39 in her account.

  9. In her Affidavit filed 9 March 2020, the Applicant wife contends that there are inconsistencies and contradictions between the disclosures made to the Court by the Respondent husband and those he has made to the Department of Home Affairs in the course of applying for a migration visa. Most relevantly, the Applicant wife states that, as of 23 March 2015, according to his visa application, the Respondent husband carried zero liabilities, and that he has not disclosed any change in those circumstances to the Department of Home Affairs. This representation, the Applicant wife contends, is directly contrary to the Respondent husband’s current assertion that he owes several millions of dollars to his father and brother-in-law.

  10. The Applicant wife further attests that, contrary to what is stated in his Financial Statement filed 24 September 2019, the Respondent husband has, “very recently”, been employed as a managing director of several companies in China and has been receiving unreported earnings. She otherwise acknowledges the income received from the Respondent husband’s investments as he attests to in his Affidavit filed 16 March 2020. These are stated to being the order of approximately $8,000 per month.

Contentions by the Respondent husband

  1. In opposition to the Application by the Applicant wife and in support of his Response, the Respondent husband, by way of summary, contends that his access to funds held for the purposes of facilitating the parties’ application for a subclass 188 visa, being an amount of $5,000,000, has been restrained pursuant to the Orders made by Rees J on 3 July 2019. This injunction further restrains the Respondent husband from withdrawing any amount from funds deposited into accounts held by the Respondent husband at W Bank and the Commonwealth Bank of Australia and by any other entity or persons from those accounts. In those circumstances, the Respondent husband contends that, in the event of the Court making an order for him to pay spousal maintenance, he is unable to do so without those restraints being modified. As previously noted, the Respondent husband also seeks an order for those restraints to be modified for the purpose of enabling him to access the amount of $500 per week to sustain his weekly expenses and also to pay certain lump sum amounts in respect to the children’s extracurricular activities and the ongoing expenses associated with the former matrimonial home.

  2. As against the Applicant wife’s Application for urgent spousal maintenance in the sum of $1,000 per week, the Respondent husband initially proposed an alternative amount of $700 to be paid to her on a weekly basis from his injuncted income. This amount was to be released to the wife in the event of the Court making orders for the Respondent husband to have sole occupancy of the former matrimonial home.

  3. In summary, the Respondent husband opposes the Applicant wife receiving any amount for a weekly sum to be paid by way of urgent or interim spousal maintenance other than in the circumstances where he succeeded in obtaining an order for sole occupancy of the former matrimonial home. While each party has sought an order for their respective occupation of the former matrimonial home, with the consent of both parties, that issue has been stood over until a later date.

  1. The Respondent husband alleges that the Applicant wife has not been truthful in respect to the financial resources available to her, namely, as she did not disclose the “source of her funds” until after the information that she provided to the Department of Home Affairs was raised in his Affidavit filed 10 January 2020.

  2. In evidence objected to by the Applicant wife, the Respondent husband contends, at paragraphs 32 to 36 of his Affidavit filed 16 March 2020, that, upon making enquiries regarding his concerns that the Applicant wife had been spending “unusual” and “significant” sums of money using his credit and debit cards between early 2017 and April 2019, he learned that the Applicant wife had been purchasing health products and re-selling those products for a profit in China via an account on a social media platform. He also asserts that the Applicant wife purchased and resold baby formula for a profit in China. The Respondent husband contends that, as of August 2019, the Applicant wife has continued her business known as “[O business]” and states, at paragraph 153 of his Affidavit filed 16 March 2020, that he “verily” believes that the Applicant wife has savings in separate accounts that have not been disclosed.

  3. The Respondent husband asserts that the Applicant wife has advised him that she had business interests in her father’s and her uncle’s businesses in China and that, throughout the parties’ relationship, the Applicant wife has received an income through those investments.

  4. The Applicant wife has objected to those aspects of the Respondent husband’s evidence as set out in his Affidavit filed 16 March 2020, in respect to her alleged business of reselling goods in China and any business interests that the Respondent husband contends the Applicant wife has in her father’s and uncle’s businesses.

  5. With respect, the Respondent husband’s contentions, as set out in paragraphs 32 through to 36 of his Affidavit filed 16 March 2020, are no more than conjecture and he has failed to produce any primary material that justifies his assertion that the Applicant wife has engaged in those alleged business activities in China. In any event, the Court is unable to make findings of fact where they are in dispute in interim proceedings. In that respect, in Iphostrou & Iphostrou [2011] FamCA 20, Cronin J said at [44], “In any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact. Findings of fact form the basis upon which orders are made within jurisdiction”.

  6. Similarly, in Acton & Burton [2015] FamCA 469, Hogan J said at [26], “The nature of the interim hearing process is such that parties are afforded a truncated process in which it is not possible to make findings about matters that are significantly in contest between them”.

  7. In relation to his own financial circumstances, the Respondent husband attests that he has been reliant on the income earned from his interest in businesses and properties in China, the latter of which he obtained with the assistance of his family.

  8. As noted, the Respondent husband acknowledges that his investment of funds originally used as a deposit for immigration purposes earns approximately $8,000 per month in interest. However, the Respondent husband has not had access to this fund as a result of the Orders dated 3 July 2019. The Respondent husband has not disclosed having the benefit of any other sources of income in his Financial Statement filed 24 September 2019 and has listed a total of approximately $12.7 million worth of liabilities owing to various members of his family.

Applications

Orders sought by the Applicant wife

  1. The Applicant wife seeks that orders be made in accordance with her ‘Minute of Orders Sought’ annexed to her case outline document filed 19 March 2020, set out as follows:

    THE COURT NOTES

    1. That on 3 July 2019 the Honourable Justice Rees inter alia made restraining orders including an order (“the 3 July 2019 restraining order”) restraining the respondent husband from reducing or withdrawing the amount of $5 million ($5,000,000) relating to the complying investment funds (“the complying investment funds”) forming a requirement of the respondent husband’s and the applicant wife’s subclass 188 (significant visa stream) visa application, including any funds deposited into any accounts held by the respondent husband at W Bank (“W Bank”), the Commonwealth Bank of Australia, and any other entity or persons, until further order.

    2. The 3 July 2019 restraining order remains undischarged and continues.

    ORDER

    3. Pending further order the respondent husband do all acts and things necessary and sign all necessary documents, give all such directions and authorities as may be necessary to pay or caused to be paid –

    3.1 to the applicant wife from the complying investment funds the sum of $1,000.00 per week by way of interim spousal maintenance such sum to be paid into the Commonwealth Bank Account No BSB … Account No …19 (“the applicant wife’s bank account”) or such other bank as the applicant wife shall nominate in writing PROVIDED FURTHER that such payment(s) are to commence no later than close of business on Tuesday 24 March 2020 (and weekly thereafter on each Tuesday); and

    3.2 to the applicant wife from the complying investment funds the following monthly periodic amounts such payments to be made on the 25th day of each month the first payment in respect of each item to commence on 25 March 2020 and to be paid into the Commonwealth Bank Account No BSB … Account No …19 (“the applicant wife’s bank account”) or such other bank as the applicant wife shall nominate in writing, namely –

A

Language Classes

$112.00 pcm

B

Gas

$64.00 pcm

C

Health Insurance

$332.00 pcm

D

Council rates

$215.40 pcm

E

Electricity

$307.68 pcm

F

Internet and telephone package

$200 pcm

Total

$1,231.08

3.3 and the following lump sum amounts to the following creditors –

A

E College – Biller Code: … Ref: …64

$5,007.00

B

F Primary School – Biller Code …14 Ref: …73

$7,382.00

C

New Washing Machine for Suburb D House up to - Account Name: JC Legal Practice Trust Account Bank: Commonwealth Bank of Australia BSB: … Acc Number: …81 - Note: Pay on delivery

$1,687.00

D

Roof Maintenance - J Pty Ltd BSB … Acct …27

$850.00

E

Optus - Biller Code … Ref: …82

$278.00

F

Car Registration and/or service when due - K Pty Ltd - BSB … Acc …15

$728.00

G

Sports Lesson re Mr G BSB … Acc …90

$214.00

H

Sports Club - H Sports Club - BSB: … Acc: …53

$255.00

Total

$16,401.08

3.4 That the applicant wife provide to the respondent husband receipts for any payments made with respect to the items in Order 3.2 and Order 3.3 within 14 days after payment is made.

3.5 That the respondent husband to facilitate the periodic and other payments referred to in the foregoing orders, forthwith do all acts and things necessary and sign all necessary documents, give all such directions and authorities as may be necessary to cause P Pty Ltd (“P Pty Ltd”) ATF Q Fund (“the Fund”) to forthwith pay from the Fund into the Commonwealth Bank Account No BSB … Account No …19 (“the applicant wife’s bank account”) the periodic and other sums referred to in the foregoing Order 1. from the accumulated interest in the Fund under the name(s) of the respondent husband (Mr Xiao), R Pty Ltd, or The Xiao Family Trust.

4. Pending further order by way of an anti-suit injunction, the respondent husband, the second respondent Mr M Xiao, the third respondent Ms Xiao and the fourth respondent Mr N Xiao be restrained pending the final determination of all proceedings in case No 3259 of 2019 in the Family Court of Australia at Sydney (including the determination of any appeal from taking any steps to commence, initiate, prosecute or settle any proceedings before the Supreme Court of New South Wales or any other court with the applicant wife and or the respondent husband as a named party to such proceedings, including but not limited to overseas court proceedings.

5. That pursuant to section 114 of the Family Law Act (1975) (Cth) the applicant wife have exclusive occupation of the former matrimonial home located at C Street, Suburb D NSW.

6. That in respect of the above restraining orders the applicant wife be granted leave to serve a copy of the restraining orders on –

6.1 The Department of Home Affairs of 26 Lee Street, Sydney NSW 2000;

6.2 P Pty Ltd; and

6.3 Any other persons or entities where the complying investment funds for the visa are held or deposited.

7. That in the event that either party refuses or neglects to execute any deeds or instrument the Registrar or Deputy Registrar of the Sydney Registry of the Court be appointed pursuant to S106A of The Family Law Act 1975 to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument upon being satisfied by affidavit of such neglect or refusal. A party shall be deemed to be in default if that party refuses or neglects to sign any document within 7 days of being requested to execute that document, such request being made in writing.

8. That the applicant wife gives the usual undertaking as to damages.

9. An undertaking as to damages is in the following form –

“I, (full name), personally (or by my solicitor) undertake to the court to abide by any order the court may make as to damages should court in the future find that the respondent(s) (or as the case may be) have sustained any damages by reason of this order for which I should accept responsibility.”

10. That the respondent husband pay the applicant wife’s costs of and incidental to this application.

Orders sought by the Respondent husband

  1. In his Response to an Application in a Case filed 16 March 2020, the Respondent husband seeks that orders be made as follows:

    1. The Respondent shall have exclusive occupation of C Street, Suburb D NSW.

    2. Subject to granting Order 1 above to the Respondent, the sum of $700 per week to be released to the Applicant Wife to fund alternative accommodation.

    3. The sum of $500 per week be made available to the Respondent Husband from the investment income at B Bank Account Number: …04.

    4. Orders 1,2,3,4,5 ,6,7 of the Applicant Wife’s Application in the case be dismissed.

    5. That the children’s outstanding school fees as well as 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.

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

    7. That the current proceedings in relation to the final property Orders in the Family Court of Australia with file No. SYC 3259/2019 shall be stayed pending the disposal of the current proceedings in the Supreme Court of New South Wales with Case Number …; and Case Number …..

    8. That within seven (7) days from the date of these Orders the Applicant Wife shall provide original copies of the following documents:

    a. Marriage Certificate belonging to the Husband;

    b. Both children’s birth certificates;

    c. Y’s original passport;

    d. Children’s photo identification documents;

    e. All financial documents including loan agreements and documents relating to the Respondent’s businesses and investments.

    9. That the Applicant Wife shall provide all mails and documents received in the name of the Respondent Husband within seven (7) days of the receipt of such documents to the Respondent Husband’s solicitors.

    10. The Applicant Wife shall pay the Respondent’s costs resulting from and incidental to these proceedings.

    Parenting

    11. The Respondent be granted leave to proceed without Section 60I Certificate.

    12. The Children, namely X DOB … 2005 and Y DOB … 2012 shall live with Respondent Husband.

    13. X and Y shall spend time with the Applicant Wife as agreed between the parties or as ordered by the Court.

    14. That an Independent Children’s Lawyer be appointed for X and Y.

Evidence

  1. The Applicant wife relied on the following documents:

    a)Case outline of the Applicant wife filed 19 March 2020;

    b)Amended Application in a Case filed 9 March 2020;

    c)Financial Statement of the Applicant wife filed 9 March 2020;

    d)Affidavit of the Applicant wife filed 9 March 2020; and

    e)Affidavit of the Applicant wife filed 9 January 2020.

  2. The Respondent husband relied on the following documents:

    a)Response to Application in a Case filed 16 March 2020;

    b)Affidavit of the Respondent husband filed 16 March 2020;

    c)Affidavit of Mr S filed 16 March 2020;

    d)Affidavit of Ms Xiao filed 10 January 2020;

    e)Material produced on subpoena by the T University dated 27 February 2020;

    f)Material produced on subpoena by the Commonwealth Bank of Australia dated 27 February 2020;

    g)Financial Statement of the Respondent husband filed 24 September 2019; and

    h)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 10 January 2020.

Consideration

Spousal maintenance

The Law

  1. The Applicant wife seeks urgent spousal maintenance, pursuant to s 77 of the Family Law Act 1975 (Cth) (“the Act”).

  2. Section 77 provides:

    Urgent spousal maintenance cases

    Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.

  3. In Hall v Hall (2016) 257 CLR 490 (“Hall”), the High Court noted that:

    Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant.

    (Footnotes omitted)

  4. In other words, unlike the requirements of the Act in respect to an application for interim spousal maintenance, an application for urgent spousal maintenance is not required to satisfy the threshold requirement set out in s 72(1) of the Act or to address the considerations set out in s 75(2) of the Act. That is not to say, however, that, depending on the facts of each particular case, those considerations may well be relevant to the Court’s exercise of discretion in considering an application pursuant to s 77 of the Act.

  5. The High Court, in Hall (supra) at [7] confirmed, however, that in considering an application for urgent spousal maintenance pursuant to s 77 of the Act, it is necessary for the Court to be satisfied of the following:

    a)“First, it must appear to the court that a party to the marriage “is in immediate need of financial assistance’.”

    b)“Secondly, it must be ‘not practicable in the circumstances to determine immediately what order, if any, should be made’.”

    c)Finally, if those criteria are satisfied, the Court must determine what “periodic sum or other sums as the court considers reasonable”.

  6. A fourth issue to consider in respect to the making of an order for urgent spousal maintenance is the duration of the order. In that respect, in Chapman & Chapman (1979) FLC 90-671(“Chapman”), it was held that the period of the order requiring a party to pay urgent spousal maintenance should be for a relatively short duration.

  7. Accordingly, I will address those four matters.

Does the Applicant wife have an immediate need for financial assistance?

  1. In her Financial Statement filed 9 March 2020, the Applicant wife states that she has no weekly income and incurs expenditure in respect to both herself and her son totalling $1,496.76 per week. She further attests to having property to the value of $2,050 and liabilities in the sum of $60,000.

  2. In Stein v Stein (2000) FLC 93-004, the Full Court found that the reasonable needs of the applicant for interim maintenance are to be assessed according to the amount that they require for their own support, as opposed to what they require in order to support a child. In determining whether the Applicant wife has an immediate need for financial assistance, I apply that criteria. That is, in assessing whether the Applicant wife has such an immediate need, I have had regard to only those expenses which, in her Financial Statement, she attributes to herself rather than either or both of the parties’ children. The needs of the children are, of course, relevant to assessing a claim for child support in respect to the children. That is an outstanding issue between the parties.

  3. The Applicant wife’s needs are identified at paragraph 60 of her Financial Statement as follows:

Food

$

150.00

Household supplies

$

5.00

House repairs

$

Gas

$

NIL

Electricity

$

30.00

Heating fuel

$

NIL

Telephone

$

43.75

Motor vehicle

$

petrol

$

63.75

maintenance

$

50.00

Fares/ car parking

$

20.00

Clothing and shoes

$

50.00

Children's activities

$

NIL

Child minding

$

NIL

Medical, dental and optical (not including health Insurance premiums)

$

10.00

Entertainment/ hobbies

$

50.00

Holidays

$

NIL

Education expenses, including fees and levies

$

NIL

Chemist/ pharmaceutical

$

NIL

Gardening/ lawn mowing

$

40.00

Cleaning (house/ pool)

$

50.00

Repairs – furnishings and appliances

$

NIL

Dry cleaning

$

20.00

Books and magazines

$

NIL

Gifts

$

NIL

Hairdressing, toiletries

$

10.00

Other necessary commitments (specify)

$

TOTAL

$

592.20

  1. In addition, at paragraph 26 of her Financial Statement, the Applicant wife attests to incurring an amount of $88.75 per week in respect to medical insurance and $95.76 per week in respect to car insurance. In combination with the expenses set out in Part N of the Financial Statement, this totals the amount of $776.71.

  2. In assessing an application for urgent spousal maintenance, it is not possible to make a precise determination in respect to each of the amounts which, in this case, the Applicant wife attests represents, in combination, her weekly expenditure. The evidentiary requirements in respect to interim applications for spousal maintenance were considered by the Full Court in Redman & Redman (1987) FLC 91-805. In that case, at 76,081, the Full Court said that it was appropriate to maintain some flexibility in approach. Such an approach is also appropriate in respect to determining the question of whether an order should be made for urgent spousal maintenance. This is subject, of course, to that evidence being sufficient to satisfy the Court that the applicant for such an order for urgent spousal maintenance is in immediate need of financial assistance.

  3. While not conceding the reasonableness of the Applicant wife’s claim for urgent spousal maintenance in the sum of $776.71, the primary focus of the Respondent husband’s contention that the Applicant wife is not in immediate need of financial assistance is the Applicant wife’s ability to access additional funds and financial resources.

  4. Firstly, by reference to documents produced pursuant to a subpoena addressed to the T University, the Respondent husband contends that the Court would not be satisfied that the Applicant wife has been honest in stating, at paragraph 37 of her Financial Statement, that she only has cash savings of $50. In that respect, the Respondent husband refers to documents produced by the University which show that the Applicant wife has stated two different dates of birth – the first being a birthday on … July 1982 and the second reference is to her birthday being in June 1982.

  1. The Respondent husband contends that inconsistency in her stated birth dates corroborates what he asserts is a failure, on the Applicant wife’s part, to disclose additional bank accounts which he contends she has in China. Counsel for the Applicant wife, on the other hand, contended that the Respondent husband is well aware that one date represents the Applicant wife’s birthday according to the Chinese lunar calendar and the other birthday represents the Applicant wife’s birthday according to the Western Gregorian calendar. Irrespective of whether the explanation provided by counsel for the Applicant wife is or is not correct, the evidence of the Applicant wife stating two different birth dates is not such that I can reasonably draw an inference that she therefore has separate bank accounts under separate identities represented by separate birthdays.

  2. The correct approach as to when it is appropriate to draw an inference is set out by the Supreme Court of Victoria Court of Appeal in Masters Home Improvement Pty Ltd v North East Solution Pty Ltd (2017) 372 ALR 440, where the Court said:

    The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be ‘the more probable inference’ from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference. Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation. Rather, the Court considers the totality of those facts together, giving effect to their united and combined force.

    (Footnotes omitted)

  3. The evidence presented by the Respondent husband is not such that the Court is in a position to draw the inference, as contended by counsel for the Respondent husband, that the Applicant wife likely has additional non-disclosed bank accounts.

  4. The Respondent husband further contends, by reference to those same documents produced by the University, that the Applicant wife has access to funds totalling $131,257.62. This is the amount that was specified in the document titled “Generic GTE Financial Capacity Matrix” (“the Financial Capacity Matrix document”), which was signed by the Applicant wife on 17 June 2019. The amount was said to be made up of deposits, including one held by the Applicant wife in a Commonwealth Bank account ending …19 of $34,927.87. In addition, reference was made to an additional amount held in the V Bank by her brother in the sum of $96,379.75.

  5. Further to those references to funds held in bank accounts, counsel for the Respondent husband made reference to a financial sponsor identified by the Applicant wife in the Financial Capacity Matrix document. The person identified by the Applicant wife in that document was stated to have an income of $55,000 per annum.

  6. I will separately deal with the amount of $34,927.87 declared by the Applicant wife to be funds held by her in a Commonwealth Bank account as at 17 June 2019.

  7. In Hall (supra) at [54] to [55], the High Court described, with reference to Kelly & Kelly (No 2) (1981) FLC 91-108, the task of considering whether an applicant for spousal maintenance has access to a financial resource in the following terms:

    The reference to “financial resources” in the context of s 75(2)(b) has long been correctly interpreted by the Family Court to refer to “a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency”. The requirement that the financial resource be that “of” a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support. Thus, it has long correctly been recognised that a nominated beneficiary of a discretionary trust, who has no control over the trustee but who has a reasonable expectation that the trustee's discretion will be exercised in his or her favour, has a financial resource to the extent of that expectation.

    (Footnotes omitted)

  8. In this matter, the Court is without evidence as to the nature of the obligation of the Applicant wife’s brother, if any, to support the Applicant wife. Similarly, the Court is without evidence as to the nature of the obligation, if any, on the person identified as the Applicant wife’s “financial sponsor” in the Financial Capacity Matrix document, to support the Applicant wife.

  9. In those circumstances, I am unable to determine whether the Applicant wife has the ability to control the asserted financial support that the Respondent husband contends is available from the Applicant wife’s brother and or the person the Applicant wife identifies as her financial sponsor. I cannot, therefore, determine whether they are a financial resource for the Applicant wife and the husband has failed to discharge the onus that he carries in respect to that issue.

  10. The Respondent husband contends that the Applicant wife’s assertion in the Financial Capacity Matrix document that she had funds in a Commonwealth Bank account totalling $34,927.82 is consistent with records produced by the Commonwealth Bank of Australia pursuant to a subpoena issued by the Respondent husband which indicate that, as at 23 May 2019, the Applicant wife had the sum of $33,519.24 in a bank account.

  11. The reference to that information was used for two (2) purposes. The first purpose was to challenge the Applicant wife’s credit by noting that, in an Affidavit, filed on 23 May 2019 by the Applicant wife for the purpose of family law proceedings, which was included in the bundle of documents produced by the University, the Applicant wife asserted, at paragraph 38, that she had “only $10,000 savings in [her] account”. The challenge to the Applicant wife’s credibility is made in the context of, firstly, the amount recorded in the Commonwealth Bank statement to which I have referred and the fact that the Applicant wife declared, in the Financial Capacity Matrix document, to which I have referred, that she had funds available of $34,927.

  12. The second aspect of the challenge to the Applicant wife’s credibility relates to the fact that she stated, in her sworn Affidavit filed 23 May 2019, that she had only $10,000 in the Commonwealth Bank account which, according to the bank statements to which I have referred, was inaccurate.

  13. While the inconsistency in those documents will, at final hearing, require an explanation on the part of the Applicant wife, I am not prepared to infer, at this point in the proceedings, that the Applicant wife has deliberately and falsely stated, in her sworn Affidavit filed 23 May 2019, which has not been read in these proceedings, that she only had the amount of $10,000 in the bank.

  14. However, for the purpose of assessing whether the Applicant wife is in immediate need of financial assistance, I will draw the inference against her. That is, I will assume the accuracy of the representation she has made that, as at 17 June 2019, she had funds in a Commonwealth Bank account ending 5119 in the sum of $34,927.87.

  15. The primary issue before the Court is, however, to determine whether, as at the date of the hearing, the Applicant wife is in need of immediate financial assistance. Her Financial Statement declares, at paragraph 60, that, in addition to her own expenses, she has also incurred expenses in respect to the children, which, together, amounts to a weekly expenditure of $1,312.25. In addition, as previously noted, she has incurred additional expenses of approximately $88 per week in respect to health insurance and approximately $95 per week in respect to car insurance, making a total of approximately $1,495 per week in day-to-day living expenses being incurred for herself and her children. When the amount of $34,927.87 is divided by that amount it totals about 24 weeks’ worth of expenditure.

  16. In other words, it is reasonable to assume that, between 17 June 2019 and the date of proceedings before me, the amount of $34,927.87 identified by the Applicant wife in the Financial Capacity Matrix document has now been exhausted. This is the case even if the amount paid to the Applicant wife pursuant to the Orders made on 3 July 2019 in the sum of $12,858 is included in the calculation. The inclusion of that sum would be equivalent to an additional 8.6 weeks bringing the total number of weeks to approximately 32.6 weeks after 17 June 2019. This is in circumstances where it is noted that there were 38 weeks between 17 June 2019 and the date that the Applicant wife filed her Financial Statement on 9 March 2020.

  17. Accordingly, I am satisfied that the weekly expenses, as attested to by the Applicant wife in her sworn Financial Statement, reasonably reflect her weekly needs. I am further satisfied, on the basis of the evidence provided, that it is likely the Applicant wife has exhausted funds that were in her bank accounts in May and June 2019 and supplemented by the Orders made on 3 July 2019. I am, therefore, satisfied that the Applicant wife is in immediate need of financial assistance in terms of s 77 of the Act.

  18. During the course of the proceedings, the Respondent husband made a concession that he would agree to pay the following lump sum amounts claimed by the Applicant wife:

    ·School fees payable to E College – $5,007;

    ·School fees payable to F Primary School – $7,382;

    ·Sport lessons re Mr G – $214; and

    ·H Sports Club registration – $255.

  19. As noted, in his own Application, the Respondent husband also sought an order permitting him to pay, by way of direct debit from the income earned on the investment in the B Bank cash investment account ending …04, “all statutory outgoings including water and council rates” for the former matrimonial home.

  20. On 13 November 2019, the parties agreed to consent Orders which included the following:

    3. Pending disposal of the Application in a Case filed by the Wife on 12 November 2019 or while the Husband resides at C Street, Suburb D:

    3A. That the parties do all things and sign all documents so as to cause the payment of the following sums from the accumulated income in the R Pty Ltd Q Fund:

    E College and F Primary school for arrears $4,447

    Language Class fees  $560

    Health Insurance   $1,159

    New Washing Machine for Suburb D House up to          $1,600

    Roof Maintenance  $800

    Car Registration and/or service when due            to be advised

    Council Rates  $2,800

    Upon production of payment vouchers by the wife to the husband.

    Together with the following as recurring expenditure on a weekly basis payable monthly in arrears to be paid to the appropriate debtors/entities by direct debit:

    Language Classes  $28

    Gas  $16

    Health insurances  $83

    Council Rates  $53.85

    Electricity  $76.92

    Internet and phone package  $50.00

    Noting always that the payment of the expenses both as to accumulated debts and the recurrent payments shall have priority and be paid first.

    In the event that there are difficulties implementing these Orders with B Bank, then the parties are at liberty to approach the Chambers jointly and by consent to ensure implementation of these Orders as B Bank may require.

  21. By way of letter dated 10 February 2020, the Respondent husband’s solicitors advised the solicitors for the Applicant wife as follows:

    1. Our client will no longer agree to the release of any funds apart of the funds relating to the children’s school, children’s language classes, as well as the Health Insurance Fund.

    2. We draw your attention to Order 3 [of the Orders dated 13 November 2019] which states the following:

    “Pending disposal of the Application in a Case filed by the Wife on 12 November 2019 or while the Husband resides at C Street, Suburb D.”

    3. Due to an Apprehended Violence Order application made by your client, our client is no longer living at the Suburb D property.

    4. Our client has been experiencing financial difficulties as he has not been able to find alternate accommodation due to lack of sufficient funds currently available to him. We are instructed that your client has access to financial support from her parents.

    5. Please amend the joint letter of instructions to include payments to the children’s school and classes only.

  22. It is to be noted that there were two conditions to payments being made under Order 3 of the Orders made on 13 November 2019. Those preconditions were expressed in the alternative, rather than the conjunctive. In other words, it is clear, on the face of the Order, that the payments were to be made if one or other of those preconditions existed. It is accepted that, as at 10 February 2020, the Respondent husband was not living at the Suburb D property. However, it is quite clear that, as at that date, the Applicant wife’s Application in a Case filed 12 November 2019 had not been disposed of.

  23. The Respondent husband’s failure to make payments as required by those Orders is an additional factor that I have considered in determining that the Applicant wife is in immediate need of financial assistance in order to pay the amounts as identified in Order 3 of the Orders made on 13 November 2019.

  24. In summary on this issue, I am satisfied that the Applicant wife is in immediate need of financial assistance in order to make those payments identified in Order 3 of the Orders made on 13 November 2019 together with the additional amounts conceded by the Respondent husband being the children’s school fees, the language classes and the sports club registration.

Is it is practicable to determine immediately what order should be made for interim spousal maintenance pursuant to s 74 of the Act?

  1. The Applicant wife contends that she is unable, at this stage, to bring an application for interim spousal maintenance as a result of her inability to provide sufficient evidence to satisfy the Court in respect to relevant matters that the Court is required to consider pursuant to s 75(2) of the Act.

  2. In that respect, the Applicant wife contends that she is unable to identify, with a sufficient degree of accuracy, the income, property and financial resources of the Respondent husband as required by s 75(2)(b) because the Respondent husband, as she contends at paragraph 36 of her Affidavit filed 9 January 2020, has provided inadequate disclosure. This includes, according to the Applicant wife, failure to provide details of loans which the Respondent husband contends are re-payable. The Applicant wife attests that the Orders made on 2 August 2019 required the Respondent husband to provide that information. The Applicant wife further contends that the Respondent husband has failed to disclose the assets that he has in China and the purpose of withdrawal of an amount of $1 million during the course of the parties’ relationship. The Applicant wife contends that the Respondent husband was required to make that disclosure by Orders made on 23 September 2019.

  3. The Applicant wife further contends that her understanding of the Respondent husband’s property has been impacted by the fact that he now alleges that he is indebted to his father and brother-in-law. According to the Applicant wife, at paragraph 35 of her Affidavit filed 9 March 2020, this is despite the fact that, at the time of his visa application on 23 March 2015, the Respondent husband disclosed to the Department of Home Affairs that he had zero liabilities. In that same context, the Applicant wife contends, at paragraph 36 of her Affidavit, that the Respondent husband has failed to comply with what she contends is the Respondent husband’s ongoing obligation of disclosure to the Department of Home Affairs regarding any change in his financial circumstances.

  4. In addition, the Applicant wife contends, at paragraph 29 of her Affidavit filed 9 March 2020, that the documentation produced in respect to the Supreme Court proceedings commenced by the Respondent husband’s father and brother-in-law disclose a bank account in the Respondent husband’s name equivalent to approximately A$5.4 million.

  5. The Applicant wife further contends that the Respondent husband has failed to disclose full details of his income in circumstances where she contends he provided information to the Department of Home Affairs that “he has been the … manager of a … company” in China and, in that role, in the period from 2008 until 2015, received income equivalent to A$12.3 million.

  6. At paragraph 31 of her Affidavit filed 9 March 2020, the Applicant wife further indicates that the Respondent husband has failed to properly disclose shareholdings in two (2) companies based in China.

  7. The Applicant wife further contends, at paragraph 87 of her Affidavit filed 9 March 2020, that the Respondent husband has failed to disclose certain bank accounts which he holds in China.

  8. The Applicant wife contends, at paragraph 13 of her Financial Statement filed 9 March 2020, that the Respondent husband is failing to pay ongoing child support and, until that issue is resolved, she is not in a position to identify the extent of her ongoing responsibilities to support the parties’ younger child who continues to live with her. This is a relevant consideration pursuant to s 75(2)(e). This is also relevant, the Applicant wife contends, in respect to her ability to provide information required pursuant to s 75(2)(na) of the Act.

  9. While I am not in a position, in these interim proceedings, to determine the extent to which either party has or has not complied with their important obligations of disclosure, I am satisfied that the uncertainty concerning the issue of disclosure is such that it is not practicable for the Applicant wife, at the present time, to adequately present a case in support of an application for ongoing interim spousal maintenance. I am also satisfied that the uncertainty as to whether the Respondent husband will pay ongoing child support presents the Applicant wife with difficulty in placing evidence before the Court in respect to costs she will incur from the responsibility she has to support the parties’ youngest son. I am, therefore, satisfied that it is not practicable, in the circumstances that I have outlined, to determine immediately what order, if any, should be made for interim spousal maintenance pursuant to s 74 of the Act.

What periodic sum or other sums as the court considers reasonable?

  1. As previously noted, in Hall (supra), the Court confirmed that, in determining whether to make an order for urgent spousal maintenance, it is necessary to determine what periodic or other sums the Court determines to be reasonable.

  2. In considering the reasonableness of the Applicant wife’s claim in this matter, I note that the amount she has claimed, in respect to weekly periodic expenses, is considerably less than the weekly expenditure identified by the Respondent husband in his Financial Statement. In that respect, at paragraph 60 of his Financial Statement filed 24 September 2019, the Respondent husband attests to spending a weekly amount of $1,259.26 on items similar to those identified by the Applicant wife at paragraph 60 of her Financial Statement. In addition, the Respondent husband attests in part G of his Financial Statement to incurring expenses which, leaving aside taxation and mortgage payments, includes:

    ·Hospital insurance for the family – $88.32;

    ·Third-party insurance for motor vehicle – $12.80;

    ·Comprehensive insurance for motor vehicle – $71.20;

    ·Registration for motor vehicle – $10.28; and

    ·Credit card repayments – $500.

  1. Accordingly, having regard to those stated items of expenditure of the Respondent husband and the amounts specified by the Applicant wife in respect to those items, I am satisfied that the Applicant wife’s claim that she incurs weekly expenditure in the sum of $776.71 is reasonable. There is, however, no evidence before me that satisfies me that the Applicant wife’s weekly expenditure is, as claimed by her in her Application, the amount of $1,000 per week.

  2. In determining whether it is reasonable to require the Respondent husband to make payments to the Applicant wife by way of urgent spousal maintenance to satisfy her need for immediate financial assistance, it is both necessary and appropriate to consider the Respondent husband’s capacity to make the payments.

  3. It is not disputed that there is currently an amount of approximately $5 million plus interest held in a complying investment fund forming a requirement of the parties’ Business Innovation and Investment (Provisional) visa (subclass 188) application. That fund, together with accounts held by the Respondent husband at W Bank and the Commonwealth Bank of Australia, were the subject of the restraints made by Rees J on 3 July 2019.

  4. At paragraph 10 of his Financial Statement filed 24 September 2019, the Respondent husband attests that the “[r]eturn on the $5 million investment, calculated based on statements showing gross return to the Trust”, total approximately $2,206 per week. As noted, however, in that paragraph, the Respondent husband has not been able to receive that income as a result of the restraints made on 3 July 2019.

  5. Accordingly, it was not in dispute between the parties that, as at the date of the hearing, the Respondent husband lacked the capacity to make the payments sought by the Applicant wife unless and until the restraints made on 3 July 2019 were amended to permit such payments to be made. I propose making such a variation to those restraints. As a result, the Respondent husband will have the capacity to make those payments. This was not disputed during the course of the proceedings.

  6. For reasons which I have set out, I am satisfied that the payment to the Applicant wife by way of urgent spousal maintenance of a weekly periodic sum of $776.71 is reasonable.

  7. Further, for reasons which I have set out, I am also satisfied that it is reasonable for the following lump sum amounts to be paid by way of urgent spousal maintenance:

    ·E College – $5,007;

    ·F Primary School – $7,382;

    ·Sports lessons – $214;

    ·Sports club registration – $255;

    ·New washing machine for the property at the Suburb D property – up to $1,600;

    ·Roof maintenance – $800;

    ·Car registration and/or service when due – to be advised;

    ·Health insurances – $83; and

    ·In respect to the Suburb D property, the following as recurring expenditure on a weekly basis payable monthly in arrears to be paid to the appropriate debtors/entities by direct debit:

    §Gas – $16;

    §Electricity – $76.92; and

    §Internet and phone package – $50.

  8. In addition to those orders, the Applicant wife consented to the Court making an order in terms of that sought by the Respondent husband in proposed order 6 of his Minute of Order which, as noted, was as follows:

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

The period of the order for urgent spousal maintenance

  1. As noted, in Chapman (supra), it was held that the period of the order requiring a party to pay urgent spousal maintenance should be for a relatively short duration.

  2. That determination should be made in the context of the facts of each particular case. The reasons I have outlined as to why I have determined that it is impractical for the Applicant wife to proceed, at this stage, with an application for interim spousal maintenance are quite complex. The determination of those issues require the parties to provide further and better disclosure and also to clarify the extent to which the Respondent husband will be paying child support, at least in respect to the child who is living with the Applicant wife.

  3. In my view, it is likely that those issues will not be resolved within a short period. I, therefore, intend to make the duration of the order for the Respondent husband to pay urgent spousal maintenance to the Applicant wife to be for a period of six (6) months.

  4. Proposed order 6, sought by the Respondent husband in his Minute of Order, is not time-limited and the Respondent husband’s obligations pursuant to that order will continue until further order of the Court.

The Respondent husband’s proposed orders

  1. In his proposed order 3, the Respondent husband seeks an order varying the restraints made on 3 July 2019 to enable him to withdraw the amount of $500 per week from his B Bank account for his weekly sustenance.

  2. The question becomes, therefore, whether it is appropriate for the Court to make the variation, as sought by the Respondent husband, to facilitate that occurring.

  3. 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]

  4. 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.

  5. 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.

  6. I will, therefore, make that order sought by the Respondent husband.

  7. 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.

  8. 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.

  9. 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.

Orders

  1. Accordingly, for the reasons set out in this decision, I make the Orders as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 9 April 2020.

Associate:   

Date:  9 April 2020

Key Legal Topics

Areas of Law

  • Family Law

  • Civil Procedure

Legal Concepts

  • Appeal

  • Costs

  • Injunction

  • Jurisdiction

  • Procedural Fairness

  • Remedies

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Iphostrou & Iphostrou and Ors [2011] FamCA 20
Acton & Burton [2015] FamCA 469
Hall v Hall [2016] HCA 23