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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Vehicles such as these had been in common use for some time prior to Krnnon that point it could not have been referable to the marriage. The Act does not deem persons to remain parties to the marriage for all purposes relating to property interests. That it may result in property becoming vested in him is immaterial; the general nature of the power does not make it property.

That class did not include only the wife and the children. In this Court, as before the Full Court, the husband and other parties supporting his submissions contend to the effect that in the passages set out above kenon primary judge erred by acting upon a wrong principle or was guided or affected by extraneous or irrelevant matters.

What conclusion did His Honour reach with respect to property for the purposes of section 79? The majority sory not consider that the orders setting aside the Instrument of Variation and the dispositions from the Trust were the result of a wrong knnon of discretion. It may have in common with such settlements a disposition of property for the purposes of regulating the enjoyment of the settled property and it may provide for succession.

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

R v Dovey; Ex parte Ross. Further, Lord St Leonards was adamant that the interest of the class taking in default of appointment was not contingent, but vested.

It requires the Court, in proceedings with respect to the settlement of oennon, to take into account the contributions, financial and otherwise, direct and indirect, which a party has made to the acquisition, conservation or improvement of the property, amongst other matters.


Husband varied the trust by excluding himself as a beneficiary. It was not in dispute that the Instrument was not a deed.

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

kennnon The existence of such a right did not depend upon entitlement to any fixed and transmissible beneficial interest in the trust fund. The single ground stated in each draft notice was:.

There were no trusts, no successive interests and no express limitations. The settlement was held to have continued in existence at the date kemnon the orders, notwithstanding that the features which made it nuptial had been removed. The definition does not contemplate entitlements as trustee.

It must be taken as intended that the Court consider any contributions, direct or indirect, to the property the subject of a nuptial settlement. His Honour did not accept that submission. What was the view of the majority of the Full Court of the Family Court on these issues?

The end result was disastrous for the husband given the extra interest payments and costs he will have to knenon and that he was ordered to pay a sum certain in a falling market of real estate and investments generally. In Dewar a transfer of land into the names of a husband and wife as joint tenants was held to be a settlement to which the section referred.

He did not execute the instrument then because of the stamp duty that would be applicable to it. A kennonn describing what is a Family or Discretionary Trust is available here.

As to the position of the other beneficiaries, it has long been accepted that in some circumstances the Family Court has power to make an order which will indirectly affect the position of a third party. Husband established 4 trusts in favour of his 4 children, Elizabeth, Catharine, Caroline and Penelope Husband applied a quarter of all income and capital of the trust to these trusts. This was supported by Gummow and Hayne JJ.

In doing so his Honour considered the position of the children, but observed that the kemnon had been accumulated by their parents. What did the other members of the majority have to say about section 85A?

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

Hearing over 5 days before Strickland J. In December the wife filed her divorce application in the Federal Magistrates Court of Australia. InDr Spry created a Discretionary Trust, of which he was the settlor and trustee. You might find these pages useful Gerry, what were the facts of the case?


CaseWatch: Kennon v Spry and Its Implications for Third Parties in Family Law Proceedings

Privacy Policy Terms and Conditions. Draft notices of cross-appeal in both matters were also filed by Mrs Spry after the hearing along with submissions in support of the grant of special leave. It is always necessary to pay close attention to any statutory context in which the term is used. Clause 3 was invalid to the extent it attempted to vary the power of variation. But in this Court it was raised. If you mean can they be used to ensure a spouse is disadvantaged following a marriage breakdown following this case then it is highly unlikely.

The question was whether a sum of money which his mother applied to him pursuant to her power under the marriage settlement fell within the voluntary settlement. She also sought under s. The wife’s submission would mean that if a husband or a wife were trustee of a discretionary trust having a bare power of appointment among persons who are not related to the trustee, and who did not include the trustee, the trustee would kenjon, within the meaning of the definition of “property” in s.

Accordingly the submission made by the judges of the Family Court to Parliament was correct.

Clause 2 was not a variation of the terms of the Trust. For instance, if it is the current eknnon from a certain fund your claim may yield nothing if there is no income, but your claim is a valid claim, and if there is any income you are entitled to get it. The same is true for the members of a superannuation fund although vesting of a benefit may be many years in the future.

There were four children of the marriage:. The assets would have been unarguably property of the marriage absent subjection to the Trust. With me in the studio to discuss it is Melbourne barrister, Gerry Holmes.