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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     


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High Court of Australia
2: 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     


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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.     


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