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.

Author: Mezizuru Taukree
Country: Chad
Language: English (Spanish)
Genre: Education
Published (Last): 10 April 2008
Pages: 90
PDF File Size: 15.56 Mb
ePub File Size: 2.92 Mb
ISBN: 475-9-11824-804-8
Downloads: 4085
Price: Free* [*Free Regsitration Required]
Uploader: Voodoogor

That is, it must have been made in contemplation of the particular marriage in relation to which s 85A is invoked. 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. In other words he took a very strict legal approach to the terms of the trust.

He assumed the power to appoint and remove further trustees.

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

In its simplest terms, the primary submission of the wife was as follows. The wife accepted the applicability to the Trust of what Lords Reid kennoon Wilberforce said. My orders though will not permit the husband to apply the assets that 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.

The position of a residuary beneficiary of an unadministered estate compared.

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

In each of these cases the statute provided the court with the power to deal with property the subject of kennnon nuptial settlement. Privacy Policy Terms and Conditions.


Justice Heydon dissented in a powerful judgment. This contraction of the class to exclude himself and his wife followed upon the Deed and the Instrument which are discussed below. 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.

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.

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

It must be taken as intended that the Court consider any contributions, direct or indirect, to the property the subject of a nuptial settlement. This point, incidentally, reinforces the view that the principles stated in Suttor v Gundowda Pty Ltd do not permit s 85A issues to be considered at this stage. The courts below did not examine this line of thought. What were the grounds of appeal and cross-appeal to the High Court? The settlement in this case may also be regarded as having the requisite nuptial element.

It is to be read widely and conformably with the purpose of the Family Law Act see p This policy, which facilitates a distribution and settlement of property, was not present in the Act or in the English legislation. It cannot ignore the interests of third parties nor the existence of conditions or covenants limiting the rights of the party who owns the property.

But it may not prevent some legal effects flowing from the dissolution of the marriage. 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 other than the husband and the wife.


To proceed on the basis propounded by the husband would confine attention to what was his property. Where that will come from though is entirely up to the husband.

Each of the beneficiaries had the right to compel the trustee to consider whether or not to make a distribution to him or her and a right to the proper administration of the Trust.

There is simply no kennkn on which the children can complain about the effect of the orders that I propose.

Family Law and Family Trusts

Clause 2 was not a variation of the terms of the Trust. It will be necessary to make further reference to these instruments later zpry these reasons. In the present case the Trust was used to hold property for the benefit of the parties to the marriage upon the terms of the Trust.

On that basis the Family Court had the power to make the order it did. The Trust property represents contributions of the parties and is held on terms of a settlement. Alternatively the timing of orders may have been a matter left to the parties. For instance, if it is the current income 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.

By the trust deed he appointed himself as trustee.