This is a case note of a family law matter involving a family trusts and property. Kennon v Spry; Spry v Kennon [] HCA 56 (“Spry”) is a particularly noteworthy. The case is Kennon and Spry. In it, the husband sets up a series of trusts for the benefit of the children of the marriage. It was the ability of the Family Court to. The decision of the High Court in Kennon v Spry () CLR ; ALR ; 83 ALJR ;. 40 Fam LR 1; [] FLC ; [] HCA 56 is one of.

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Their interests are vested, but vested only in interest, not possession. In those assets she had no property. Dr Spry created the Trust. Indeed, he never returned to the subject in any significant fashion.

So characterised for the purposes of the Family Law Act it had an attribute in spfy with the legal estate he had in the assets as trustee. As mentioned above His Honour considered she had a right to due consideration as to the application of income and capital and administration that whilst difficult to value is not beyond the realms sprh possibility.

On 30 October he and his wife separated. There is simply no basis on which the children can complain about the effect of the orders that I propose.

It may be suggested that the absurdity can be overcome by postulating that the Court, properly exercising its discretion, would never do so if its order was adverse to the interests of objects knenon than the husband and the wife. In its simplest terms, the primary submission of the sprry was as follows. These contentions were supplemented by arguments about the amplitude of the orders that may be made under s The learned primary judge made extensive findings of fact and law.

It is convenient to adopt the abbreviations there employed.

Family Law & Family Trusts – Case note for Kennon v Spry; Spry v Kennon [2008] HCA 56

Those submissions should be accepted. The question of a trust involving a combination of purposes and family and extraneous assets does not arise. It was made 10 years before the husband married. In December the wife filed her divorce application in the Federal Magistrates Court of Australia. How would you summarise the legal position with family trusts after the decision in Kennon and Spry?


But a right to require trustees to consider whether they will pay you something does not enable you to claim anything. This would not be so if there was a discretion to be exercised in relation to these facts, and the primary judge had not had an opportunity of exercising that discretion.

It was submitted for the husband that it kennn not intended that the Court should make orders that would operate to the detriment of third parties.

Kennon v Spry; Spry v Kennon [2008] HCA 56

The Report of the Joint Select Committee on the Family Law Act, which predated the amendment, discussed the need for powers to be given to the Court with respect to family trust or company arrangements.

It is always necessary to pay close attention to any statutory context in which the term is used. The Trust was not created in More recent English legislation introduced a reference to contributions by the parties to the welfare of the family as relevant to property proceedings.

It may kdnnon in common eknnon such settlements a disposition of property for the purposes of regulating the enjoyment of the settled property and it may provide for succession. The end result was disastrous for the husband given the extra interest payments and costs he will have to pay and that he was ordered to pay a sum certain in a falling market of real estate and investments generally. It is intended to apply to settlements whether they occur before or during marriage.

So far as these applications rest on a desire to invoke s 79, they are futile in view of the conclusion reached above that the assets of the Trust were not property in which the husband or the wife had interests. Her Honour held that once it was accepted that the effect spey the Deed could be reversed, the case became one like any other where assets were held in a discretionary trust and the husband had control of them as trustee and was capable of having the capital and income distributed to him as a beneficiary.

It is sufficient to indicate that the appeals should be allowed, the applications to amend the notices of contention should be dismissed, and the applications for special leave to cross-appeal should be dismissed.


Kennon v Spry; Spry v Kennon [] HCA 56 | Family Law Express Decisions

It was only a power to appoint among a class of objects to which he belonged, not anyone in the world. It thereby acquired the nuptial element. Farwell J held that it did not, because until the appointment was made, s;ry son had no interest in the fund other than a vested interest in default of appointment:.

Beyond these characteristics, no definition of a settlement is possible.

My orders though will not permit the husband to apply the assets slry he assigned to the children because he himself successfully argued that the discretion to set aside that disposition should not be exercised where the husband has the ability to otherwise meet the order. What were the grounds of appeal and cross-appeal to the High Court?

A mennon cancellation by the parties to the Deed could not alter the effectiveness of the release. His Honour found that the Trust was maintained to allow the parties to accumulate assets for the benefit of the family in the most taxeffective way. Her honour said that s.

Family Law and Family Trusts

The assets of the Trust need to be actually in the asset pool for division to allow the wife to receive her entitlement as the figures will kennnon indicate. That is because the purpose of the definition is to enable the parts of the Act to which it relates to function.

His position, by reason of being both trustee and object, was not that of a mennon entitled in possession or reversion. The phrase means that the entitlement to the property may be either in possession or reversion, ie the phrase is descriptive of the sprg and not of the property and it removes any fetter upon the court in dealing with property under this Act by limiting the nature of the entitlement thereto to entitlement in possession.