Lei and Xiao and Ors

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.