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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One of her children, a son, executed a voluntary settlement whereby he assigned to trustees:. It is surprising that the court should even have to consider the exercise of discretion in those circumstances.

Farwell J held that it did not, because until the appointment was made, the son had no interest in the fund other than a vested interest in default of appointment:. A policy question was said to be raised. The definition does not contemplate entitlements as trustee.

Family Law and Family Trusts

The wife has not attempted to have it set aside at any stage. The appeals should be dismissed. The question of a trust involving a combination of purposes and family and extraneous assets does not arise. These are not propositions which the wife did or could contest. Husband further varied the trust by excluding himself and wife as capital beneficiaries kennnon in trouble at this time.

In that case it was asserted in an estate duty context. As the courts below found, it was created inwhen the husband prepared the document recording the terms of the Trust which he did not sign until The application relevant to these proceedings was a second amended version of that application. The wife’s submissions would enable a trustee who is not in law entitled to any personal enjoyment of the trust property, and who could never by his or her own act become entitled to any personal enjoyment of it, to be treated as though b or she were so entitled.


Counsel then said he wanted to put the matter on two levels or in two ways. In other words he took a very strict legal approach to the terms of the trust. There should be no order for costs in favour of the other respondents.

It has always been a powerful weapon to stop recalcitrant spouses from diminishing the srpy pool. Under Appeal Suppression Order Other.

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

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

Husband born — now aged Further, just as s. 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.

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. His Honour had found that the Trust was at all times subject to the control of the husband.

It is convenient to adopt the abbreviations there employed. The Trust assets constitute property, much of which was obtained by way of the parties’ contributions to the marriage.

On his death, he was to be succeeded by a person or persons specified in his will and, absent such specification, by Helen Spry. The husband used them initially in his attempt to remove assets from the reach of the wife and the Family Court, and for that the children cannot be criticised, but it is sad that the children have chosen to thereafter become involved in what is essentially a dispute between their parents.

Control of the Trust was not sufficient for that purpose. The nuptial element can readily be seen by the contribution made by the parties to the marriage to the Trust and the holding of that property for their benefit. How wide and powerful is this provision? It is intended to apply to settlements whether they occur before or during marriage. A preferable approach is one which gives effect to the purposes of the section.


The approach which his Honour took, in determining to make the order for the payment of the monies to the wife, was to leave it to the husband to determine how to find the payment of the net amount, although his Honour clearly had in mind that the husband controlled the Trust.

There was no order for a settlement in the conveyancing sense of a disposition by deed vesting property in trustees to be held for a succession of interests. This proposition was only true for the pre period, for after the Instrument which was not set aside below and which the wife never asked to be set aside the husband was no longer an object of the power of appointment.

A court cannot make an order under this section in respect of matters that are included in a financial agreement. Their interests are vested, but vested only in interest, not possession. At the date of distribution the fund was to be divided amongst such of the beneficiaries as the trustee thought fit — a class which included the wife — and, in default, amongst the male beneficiaries other than the husband: The settlement was held to have continued in existence at the date of the orders, notwithstanding that the features which made it nuptial had been removed.

Husband varied the trust by excluding himself as a beneficiary.

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

None of these characteristics are shared by the object of a bare power of appointment. The relevant settlement must be made in relation to the marriage, not simply in relation to marriage. They married in Mr Jackson cited these statements.

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