Hayne J
Court or Tribunal: High Court of Australia
Catchwords: Family Trust, Wills & Probate
Judges: French CJGummow CJHayne JHeydon JKiefel J
Background: This involved a senior Melbourne QC. Before he was married he had set up a trust, and he was the trustee and was entitled to vary the terms of the trust. The beneficiaries were himself, his siblings, their children and their spouses. By two amendments, both the husband and the wife were excluded from the list of beneficiaries. The last amendment was effected at a time when the marriage was in trouble. The husband as trustee subsequently moved several million dollars from the trust to their children and to trusts for the children.
[Legal Issue]The existence of a family trust has caused difficulties in Family Law property disputes, because if, say, the husband is a beneficiary under a trust, he does not actually own anything until a distribution is decided upon. The Family Court's power is to deal with "property", and so there were real doubts about the court's ability to make orders about a possible entitlement under a trust.
[Court Orders]The legal ramifications with family trusts as a result of Kennon and Spry suggests that a family trust is not intended to be used to disadvantage a spouse following a marriage breakdown. The use of s.106B, s.85A are powerful weapons and when you weave in submissions concerning the right of due administration and due consideration these make it very difficult to exclude a spouse from some entitlement under a trust.
However we may not have heard the end of the case as questions of enforcement
Catchwords: Family Trust, Wills & Probate
Judges: French CJGummow CJHayne JHeydon JKiefel J
Background: This involved a senior Melbourne QC. Before he was married he had set up a trust, and he was the trustee and was entitled to vary the terms of the trust. The beneficiaries were himself, his siblings, their children and their spouses. By two amendments, both the husband and the wife were excluded from the list of beneficiaries. The last amendment was effected at a time when the marriage was in trouble. The husband as trustee subsequently moved several million dollars from the trust to their children and to trusts for the children.
[Legal Issue]The existence of a family trust has caused difficulties in Family Law property disputes, because if, say, the husband is a beneficiary under a trust, he does not actually own anything until a distribution is decided upon. The Family Court's power is to deal with "property", and so there were real doubts about the court's ability to make orders about a possible entitlement under a trust.
[Court Orders]The legal ramifications with family trusts as a result of Kennon and Spry suggests that a family trust is not intended to be used to disadvantage a spouse following a marriage breakdown. The use of s.106B, s.85A are powerful weapons and when you weave in submissions concerning the right of due administration and due consideration these make it very difficult to exclude a spouse from some entitlement under a trust.
However we may not have heard the end of the case as questions of enforcement
Court or Tribunal: High Court of Australia
Catchwords: Appeal, Proceedings to Alter Property Interests, Property, Property Settlement
Judges: Bell JFrench CJHayne JHeydon J
Background: The husband and wife married in 1971. In December 2008, the wife suffered a stroke and moved into full time residential care. She was later diagnosed with dementia. The husband continued to provide for her care and set aside money in a bank account to meet the costs of her medical needs or requirements. He continued to live in the matrimonial home. In 2009, the wife (by one of her daughters as case guardian) applied to the Family Court for orders altering interests in the marital property between the wife and her husband. Under the Family Law Act 1975 (Cth), a court can make a property settlement order if it is "just and equitable" to do so. At first instance, a magistrate ordered that the husband pay his wife $612,931, which represented the amount assessed as her contribution to the ma
[Legal Issue]The wife (on behalf of one of her daughters as case guardians), sought to have the family home sold, and half the proceedings to go to the daughters. The legal pretext to this action was the albeit involuntary physical separation of the couple. The husband was still residing in the family home, while the wife was moved into full time residential care because of a stroke and dementia.
The husband argued that the bare fact of physical separation, when involuntary, does not on its own make it just and equitable to make a property settlement order.
[Court Orders]The Court held that there was no basis to conclude that it would have been just and equitable to make a property settlement order had the wife been alive. She had not expressed a wish to divide the property, a property settlement order would require the husband to sell the matrimonial home, in which he still lived, and the Full Court had found, on the material before the magistrate, that her needs were being met or could be met by a maintenance order. The bare fact of physical separation, when i
Catchwords: Appeal, Proceedings to Alter Property Interests, Property, Property Settlement
Judges: Bell JFrench CJHayne JHeydon J
Background: The husband and wife married in 1971. In December 2008, the wife suffered a stroke and moved into full time residential care. She was later diagnosed with dementia. The husband continued to provide for her care and set aside money in a bank account to meet the costs of her medical needs or requirements. He continued to live in the matrimonial home. In 2009, the wife (by one of her daughters as case guardian) applied to the Family Court for orders altering interests in the marital property between the wife and her husband. Under the Family Law Act 1975 (Cth), a court can make a property settlement order if it is "just and equitable" to do so. At first instance, a magistrate ordered that the husband pay his wife $612,931, which represented the amount assessed as her contribution to the ma
[Legal Issue]The wife (on behalf of one of her daughters as case guardians), sought to have the family home sold, and half the proceedings to go to the daughters. The legal pretext to this action was the albeit involuntary physical separation of the couple. The husband was still residing in the family home, while the wife was moved into full time residential care because of a stroke and dementia.
The husband argued that the bare fact of physical separation, when involuntary, does not on its own make it just and equitable to make a property settlement order.
[Court Orders]The Court held that there was no basis to conclude that it would have been just and equitable to make a property settlement order had the wife been alive. She had not expressed a wish to divide the property, a property settlement order would require the husband to sell the matrimonial home, in which he still lived, and the Full Court had found, on the material before the magistrate, that her needs were being met or could be met by a maintenance order. The bare fact of physical separation, when i
Court or Tribunal: High Court of Australia
Catchwords: Appeal, Equal Parenting Time, Reasonable Practicality, Shared Parenting
Judges: Bell JFrench CJGummow JHayne JKiefel J
Background:
[Legal Issue]
[Court Orders]
Catchwords: Appeal, Equal Parenting Time, Reasonable Practicality, Shared Parenting
Judges: Bell JFrench CJGummow JHayne JKiefel J
Background:
[Legal Issue]
[Court Orders]
Court or Tribunal: High Court of Australia
Catchwords: Appeal, Paternity Fraud
Judges: Crennan JGleeson JGummow CJHayne JHeydon JKirby J
Background: Ms Magill had made false representations in the course of the marriage concerning the paternity of children born during the marriage. DNA testing after the marriage ended revealed two children of the marriage were not the biological children of the Mr Magill.
[Legal Issue]At issue in these proceedings was the notion of paternity fraud, and whether the tort of deceit can be applied in a marital context in relation to false representations of paternity.
Once finding out that he was not the father of his two youngest children, and his ex-wife aware that he was likely not the father, he sued, launching a case for deceit in the Victorian County Court, claiming damages for personal injury in the form of anxiety and depression resulting from fraudulent misrepresentations.
He also claimed financial loss, including loss of earning capacity by reason of his psychiatric problems and expenditure on the children under the mistaken belief he was their father, plus exemplary damages.
The County Court awarded him $70,000 from his ex-wife, including $30,000 for gen
[Court Orders]The judges unanimously ruled that the case for paternity fraud brought by Liam Neale Magill failed.
Three judges held that no action for deceit could lie in representations about paternity made between spouses.
Three other judges held that there could be circumstances in which such an action might succeed but they were exceptional and did not cover Mr Magill's situation.
However, the court also rejected an argument put by Mr Magill's former wife Meredith that the Family Law Act ruled ou
Catchwords: Appeal, Paternity Fraud
Judges: Crennan JGleeson JGummow CJHayne JHeydon JKirby J
Background: Ms Magill had made false representations in the course of the marriage concerning the paternity of children born during the marriage. DNA testing after the marriage ended revealed two children of the marriage were not the biological children of the Mr Magill.
[Legal Issue]At issue in these proceedings was the notion of paternity fraud, and whether the tort of deceit can be applied in a marital context in relation to false representations of paternity.
Once finding out that he was not the father of his two youngest children, and his ex-wife aware that he was likely not the father, he sued, launching a case for deceit in the Victorian County Court, claiming damages for personal injury in the form of anxiety and depression resulting from fraudulent misrepresentations.
He also claimed financial loss, including loss of earning capacity by reason of his psychiatric problems and expenditure on the children under the mistaken belief he was their father, plus exemplary damages.
The County Court awarded him $70,000 from his ex-wife, including $30,000 for gen
[Court Orders]The judges unanimously ruled that the case for paternity fraud brought by Liam Neale Magill failed.
Three judges held that no action for deceit could lie in representations about paternity made between spouses.
Three other judges held that there could be circumstances in which such an action might succeed but they were exceptional and did not cover Mr Magill's situation.
However, the court also rejected an argument put by Mr Magill's former wife Meredith that the Family Law Act ruled ou