Family Court of Australia emblem
1: Bernard & Bernard [2019] FamCA 421 | September 11, 2020
Court or Tribunal: 
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     


[  ] Download Decision

Full Court of the Family Court of Australia emblem
2: Calvin & McTier [2017] FamCAFC 125 | July 12, 2017
Court or Tribunal: 
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      


[  ] Download Decision

Federal Circuit Court of Australia emblem
3: Kristoff & Emerson [2015] FCCA 13 | January 13, 2015
Court or Tribunal: 
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.      


[  ] Download Decision

High Court of Australia
4: Stanford v Stanford [2012] HCA 52 | November 15, 2012
Court or Tribunal: 
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     


[  ] Download Decision

Federal Magistrates Court emblem
6: Maddock & Maddock & Anor (No.2) [2011] FMCAfam 1340 | December 13, 2011
Court or Tribunal: 
Catchwords: Contributions from Parents, Loan, Proceedings to Alter Property Interests, Property Settlement
Judges:  Burchardt FM


Background: The husband’s father had given the parties $240,000 towards the cost of buying acreage and building a house on the land. After the parties’ separation the father intervened in the proceedings and sought repayment of what he argued had been a loan. The husband agreed but the wife denied any loan, alleging that the payment had been a gift. 
 
  [Legal Issue]In one sense, the informal nature of these arrangements denies legal analysis. However, I do not think the contribution by the father was a gift. If someone gives you over a quarter of a million dollars, you tell the world about it. It is clear the wife never told her own parents or anyone else. Likewise, she never wrote a note of thanks, which an outright and clearly expressed gift would have been highly likely to have engendered. To the contrary effect, however, I do not think that the arrangements can properly be described as a loan in the ordinary sense. Loans, if nothing else, have terms as to repayment. ‘Loan’ is defined by the Butterworth’s Australian Legal Dictionary as: ‘The temporary transfer of an asset, usually funds, from a lender who controls the funds to a borr   [Court Orders]Money from husband’s father held to be neither gift nor compellably repayable loan but a contribution on husband’s behalf. As such the Federal Magistrate concluded that the $240,000 is not repayable.     


[  ] Download Decision