1: Bernard & Bernard [2019] FamCA 421 | September 11, 2020

Court or Tribunal: Family Court of Australia
Catchwords: Contributions from Parents, Estate Planning, Family Trust, Family Trust, Inheritance, Inheritance, Matrimonial Property, Proceedings to Alter Property Interests, Property, Property Settlement, Rights of Executors and Administrators, Testamentary trust, Wills, Wills & Probate
Judges:  Henderson J


Background: The husband’s father died in 2012 and by his will established a testamentary trust for each of the husband and the husband’s sister. The husband was the primary beneficiary, and the class of other beneficiaries included his spouse, children, grandchildren and great-grandchildren. Despite being named as the primary beneficiary, the husband’s sister was the sole trustee of the trust. The husband was not given a power of trustee appointment and he had no other legal title to the assets of the fund other than being a beneficiary. The sister’s trust mirrored that of the husband’s in that the husband was the sole trustee of her trust. The two trusts operated a partnership which ran the family business of which the husband was the manager. The trusts also owned a commercial prop 
 
  [Legal Issue]In this case the divorcing husband and his sister both had testamentary trusts established under the Will of their father. Both were the trustee of the other’s trust. Neither was a beneficiary of the other’s testamentary trust. The Court considered whether assets held in the husband’s testamentary trust formed part of the matrimonial property pool available for distribution between the husband and the wife after divorce.   [Court Orders]The Court rejected the wife’s claims and held that whilst the assets of the husband’s trust were a financial resource it was not matrimonial property on the basis that: -the husband had no control over his sister as the trustee; -the husband could not direct the assets or income of the trust to any person; -the trustee could apply the income of the trust for the benefit of other beneficiaries of the trust, and not just the husband; -the mere fact that the husband’s trust was identica     


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2: Thorne v Kennedy [2017] HCA 49 | November 8, 2017

Court or Tribunal: High Court of Australia
Catchwords: Appeal, Binding Financial Agreement, Binding Financial Agreement, Post-Nuptial Agreement, Pre-Nuptial Agreement, Pre-Nuptial Agreement
Judges:  Bell JEdelman JGageler JGordon JKeane JKiefel CJNettle J


Background: He was a multi-millionaire property developer, she was his much younger Eastern European bride who spoke little English. The couple met online in 2006 on a “website for potential brides” when the husband was 67 and she was 36. The husband, known as Mr Kennedy, had assets of at least $18 million. He was divorced from his first wife and had three adult children. Soon after he met the wife online, he told her that if they married, “you will have to sign paper. My money is for my children.” The agreement said the wife was to receive a total payment of $50,000 adjusted for inflation in the event of separation after at least three years of marriage. It also provided for the wife to receive a penthouse worth up to $1.5m, a Mercedes and continuing income, in the event the husband die 
 
  [Legal Issue]The Federal Circuit Court initially set aside the agreements, finding that they were signed “under duress born of inequality of bargaining power where there was no outcome to her that was fair and reasonable”. However, the Full Family Court ruled the agreements were binding, and said there had not been duress, undue influence or unconscionable conduct on the husband’s part. The High Court disagreed. It said the primary judge’s conclusion of undue influence was open on the evidence and it was unnecessary to decide whether the agreements could have also been set aside for duress. The case will now be sent back for the Federal Circuit Court to decide how the property pool should be divided between the two. Ms Thorne is seeking orders for a further $1.1 million plus a lump    [Court Orders]1.Appeal allowed. 2.Set aside the orders of the Full Court of the Family Court of Australia made on 26 September 2016 and, in their place, order that the appeal to that Court be dismissed with costs. 3.The respondent pay the appellant's costs of the appeal to this Court.     


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3: Toh v Su [2017] NSWLC 10 | August 28, 2017

Court or Tribunal: Local Courts of NSW
Catchwords: Contributions, Property
Judges:  Rodney Brender LCM


Background: Edwin Shien Bing Toh and Winnie Chu Ling Su met through a mutual friend in 2015. By October of that that year Toh had proposed to Su, and they soon opened joint bank accounts and visited a jewellery store to buy a $15,500 engagement ring and two wedding bands totalling $1300. Later, the couple left Australia on a trip to China and Toh gave his fiancée Su both wedding bands “so that she could show them to her parents”. But the course of their relationship ended abruptly on March 5, 2016, when Mr Toh called off the engagement after three months. At a meeting attended by his former fiancée and a friend, Mr Toh said “everything that belongs to each party will be returned to each party”, and Ms Su agreed. Ms Su demanded back all the gifts she had given him, including the s 
 
  [Legal Issue]By section 111A(1) of the Marriage Act 1961 (Cth), the Parliament abolished the right to recover damages for breach of promise to marry. Subsection 2 provides that the section does not affect an action for the recovery of any gifts given in contemplation of marriage which could have been brought if the section had not been enacted. Thus, whilst the action of breach of promise to marry was abolished, it was contemplated that there might still be recovery of conditional gifts. I find however that there was no intention to contract. It was a domestic, emotional setting. The plaintiff suggested they should both give back things belonging to the other. The defendant said “ok”. It was not intended to affect legal rights to retain completed gifts if a party wished to do that.   [Court Orders]The plaintiff had a part victory, in which he was not able to get the engagement ring returned. However the defendant was required to deliver to the plaintiff the two wedding bands and pay the plaintiff $1,000     


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4: Calvin & McTier [2017] FamCAFC 125 | July 12, 2017

Court or Tribunal: Full Court of the Family Court of Australia
Catchwords: Divorce, Inheritance, Inheritance, Property, Property
Judges:  Aldridge JBryant CJRyan J


Background: The Full Court of the Family Court of Australia in Western Australia heard an Appeal by a husband who argued that an inheritance received 4 years after separation should not be included in the property to be divided between him and his ex-wife. The parties were married for 8 years and were divorced in 2011.They had one child who was 5 years old at the time of separation. In 2014 the husband received an inheritance from his father’s estate. The wife commenced proceedings more than 3 years after separation and was granted the Court’s leave under Section 44 (3) of the Family Law Act to pursue a property settlement claim. 
 
  [Legal Issue]The central issue on appeal was whether the trial Judge erred by including the husband’s post separation inheritance within the parties’ property pool available for division. The husband argued that his inheritance should not be included in the pool because of the degree of “connection” or more to the point, the lack of connection, between the inheritance and the parties’ matrimonial relationship. The husband was unsuccessful in taking that position and his appeal was dismissed. The Justices of the Full Court of the Family Court of Australia, Chief Justice Bryant, Justice Ryan and Justice Aldridge concluded that the Court retained a discretion as to how to approach the treatment of property acquired after separation. Conversely in the case of Holland & Holland [2017] FamC   [Court Orders](1) The appeal against the orders made by Magistrate Calverley on 17 November 2016 is dismissed. (2) The appellant pay the respondent’s costs of the appeal as agreed or in default of agreement as assessed. The husband was unsuccessful in excluding his post-separation inheritance from the asset pool. The trial judge assessed contributions as 65%/35% in the husband’s favour, which included a 10% adjustment to the wife for future needs. No appealable error established – Appeal dismissed      


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5: Omari v Yassine (Civil Dispute) [2016] ACAT 112 | November 13, 2016

Court or Tribunal: ACT Civil and Administrative Tribunal
Catchwords: Breach of Promise, Jurisdiction, Property
Judges:  G Lunney SC


Background: A Canberra man launched legal action against his former fiancee in a bid to recoup the money he’d spent on her engagement ring after their relationship broke down. The man had first contacted the Melbourne woman and her parents with a view to marriage in late 2014 and they got engaged the following year. But the pair’s relationship soured, partly due to tensions over where they would live, and ended last October. The man had asked his former fiancee to give back her engagement ring, as well as gifts from his parents, but he claimed the items were never returned. He took the case to the ACT Civil and Administrative Tribunal, seeking to recover the cost of the ring and gifts. 
 
  [Legal Issue]Under the Marriage Act, a person can no longer sue for damages linked to social or economic loss arising out of a breach of a promise to marry. But the law doesn’t apply to gifts given in anticipation of a marriage, meaning a person can try to recover an engagement ring, or its monetary value, if the recipient has broken off the engagement. The man's application hinged on whether there had been a breach of the pair’s agreement to marry, and whether that breach had taken place in the ACT. This would bring into play section 22 of the ACT Civil and Administrative Tribunal Act 2009 (ACAT Act). He found there had not been a “unilateral withdrawal by one party in breach of a prior promise”, rather a recognition by two people that their relationship had reached a tipping point an   [Court Orders]Mr Lunney dismissed the man’s application. The parties were ordered to bear their own legal costs.     


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6: Kennedy & Thorne [2016] FamCAFC 189 | September 26, 2016

Court or Tribunal: Full Court of the Family Court of Australia
Catchwords: Binding Financial Agreement, Binding Financial Agreement, Post-Nuptial Agreement, Pre-Nuptial Agreement, Pre-Nuptial Agreement
Judges:  Aldridge JCronin JStrickland J


Background: The parties met over the internet in early to mid-2006. She was a 36 year old, born and living overseas with limited English skills. She was previously divorced, had no children and no assets of substance. He was a 67 year old, was a property developer and worth approximately $18 to $24 million. He was divorced from his first wife, with whom he had three children, now all in adulthood. Having met on a dating website in early to mid-2006, the parties then commenced speaking with each other on the telephone. They spoke in English and in (language omitted). The applicant agreed that the deceased said to her: “I will come to (country omitted) and we will see if we like each other. If I like you I will marry you but you will have to sign paper. My money is for my children.”  
 
  [Legal Issue]The Federal Circuit Court initially set aside the agreements, finding that they were signed “under duress born of inequality of bargaining power where there was no outcome to her that was fair and reasonable”. However, the Full Family Court ruled the agreements were binding, and said there had not been duress, undue influence or unconscionable conduct on the husband’s part.   [Court Orders]The appeal be allowed.     


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7: Huffman & Gorman [2015] FamCA 317 | April 29, 2015

Court or Tribunal: Family Court of Australia
Catchwords: Allegations of Child Abuse, Emotional Abuse, Entrenched Parental Conflict, False Allegations of Child Abuse, Meaningful Relationship, Parental Disorders, Property, Psychological Disorders, Recorded conversations, Risk of Psychological Harm, Unacceptable Risk, Unsubstantiated Allegations, With whom a child lives with
Judges:  Hannam J


Background: The mother is 42 and the father is 43 years old. The parties commenced a relationship in 1999 when they were in their late twenties. The case involves competing claims of domestic violence and property dispute. In relation to parenting matters there are three significant factual disputes. First, the father contends that he was the victim of serious systematic violence perpetrated by the mother for most the relationship. The mother contends that it was the father who was violent towards her and that if she also engaged in violence, it was in response to the father’s antagonism. Second, the mother contends that the father and his (second) wife Mrs H abused the children after separation, which is denied by the father. Finally, it is central to the father and the ICL’s ca 
 
  [Legal Issue]No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests. The ICL’s proposal is based to a large extent upon the recommendations of Dr K. In his report Dr K was of the view that the children should live with their father and he should have sole parental responsibility for them. He then said: After a significant period of time to allow the children to develop security and connection in their father’s home, it would be ideal for the children to maintain some time spent with the m   [Court Orders]The children shall live with their father, Mr Huffman (“the father” or “the husband”). The father shall have sole parental responsibility for the children. The children shall spend no time with their mother, Ms Gorman (“the mother” or “the wife”), for a period of 12 months from the date of these orders. Thereafter, the children shall spend supervised time with their mother each second month, at a supervised contact centre. The father shall do all acts and things neces     


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8: Kristoff & Emerson [2015] FCCA 13 | January 13, 2015

Court or Tribunal: Federal Circuit Court of Australia
Catchwords: Briginshaw test, Contributions, De Facto Relationship, De Facto Relationships, Meaningful Relationship, Proceedings to Alter Property Interests, Property, Substantial Relationship
Judges:  Judge Brewster


Background: The case involved a sex worker who made a claim for a property order against a former client turned partner of 8 years. The applicant alleged that she lived in a de facto relationship with the respondent from 2003 until 2011. The parties met in 1999 when the applicant “was employed as a sex worker and the respondent was one of her clients”, their relationship evolving to a point where the “applicant began to involve the respondent with her family” and from “2000 onwards the sexual relationship between the parties ceased to be a commercial one” 
 
  [Legal Issue]The Court ultimately found that whilst the parties did have a relationship that exceeded “friendship”, it was not enough to constitute a de-facto relationship. There was no financial interdependence or children of the relationship and the applicant did not give up sex work for the respondent. In any event, the Court held that on the facts, it would not be just and equitable to make orders altering the party’s property interests. Parties to a supposed de-facto relationship must evidence more than a mere sexual relationship. The Court will consider the totality of the relationship including amongst others, living arrangements and financial interdependence to establish the existence of a de-facto relationship.   [Court Orders]The Court found that the couple were not in a de facto relationship and as such the claim for property fails.      


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9: Wallace & Stelzer and Anor [2013] FamCAFC 199 | December 11, 2013

Court or Tribunal: Full Court of the Family Court of Australia
Catchwords: Appeal, Binding Financial Agreement, Binding Financial Agreement, Pre-Nuptial Agreement
Judges:  Finn JRyan JStrickland J


Background: A couple, known by the court as Mr Wallace and Ms Stelzer, met in 1998 at the Sydney club where Ms Stelzer worked soon after Mr Wallace split from his first wife. At the time, he was 51 and she was 38. They married seven years later and entered into a prenuptial agreement that Mr Wallace would pay Ms Stelzer $3.25m if the relationship failed within four years. It failed within two.  
 
  [Legal Issue]Mr Wallace tried to renege on their pre-nuptial (binding financial) agreement, arguing that the relevant legislation was unconstitutional because it was retrospective. He argued that his pre-nuptial agreement was signed before the 2010 amendments and so his agreement should be deemed invalid. Mr Wallace also fought to have the pre-nuptial agreement deemed invalid, claiming that Ms Stelzer behaved fraudulently by making "false promises of love and desire for children". He also said his lawyers did not give him adequate legal advice and make clear the pros and cons of the pre-nuptial agreement. He said that his lawyers had taken only minutes to sign it.    [Court Orders]The Full Court of the Family Court ruled the pre-nuptial agreement was binding and that the amended legislation "can have a retrospective operation which is constitutionally valid". The woman who previously worked as a pole dancer is set to receive $3.25 million from her ex-husband after the Family Court ruled against his bid to have their pre-nuptial agreement overturned because of her "false promises". The ruling means that there is much more certainty about the validity of pre-nuptial a     


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10: Schacht v Bruce Lockhart Thompson and Dennis Michael Staunton (trading as Staunton and Thompson Lawyers) (No. 3) [2013] NSWSC 316 | April 10, 2013

Court or Tribunal: Supreme Court of NSW
Catchwords: Binding Financial Agreement, Binding Financial Agreement, Breach of Duty, Contract, Lawyer Complaints, Pre-Nuptial Agreement, Professional Negligence, Property
Judges:  Johnson J


Background:  
 
  [Legal Issue]   [Court Orders]Father of two to be awarded up to $800,000 in damages from his lawyers for professional negligence in preparing a defective binding financial agreement (pre-nuptial agreement).     


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