Family Law Property Alert #3: Discretionary Trusts and the Court’s Third Party Powers
David Gawthorne is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law
Can Family Law Courts require a third party trustee of a discretionary trust to cause the trust to vest, and make trust property available to husband and wife beneficiaries for their property settlement?
The appeals division of the Family Court considered that question in AC and Ors & VC and Anor [2013] FamCAFC 60 (11 April 2013), answering ‘yes and no.’
The wife commenced proceedings for property settlement against the husband, and sought orders affecting the interests of third parties who included the husband’s mother, due to her control of a discretionary trust. The discretionary trust was established by a deed of settlement dated June 1985, with a vesting date in 2064. The husband was the original guardian and appointor of the trust. The specified beneficiaries were the husband, the wife and their three adult children. The original trustee was the husband’s father, but by a deed of appointment made in August 1985 the husband substituted a corporate trustee. The husband and his father each held one of the two issued shares in, and were directors of, the corporate trustee. Read the rest of this entry »
A Father’s Promise to Son – The Sequel
David Gawthorne is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law
We previously outlined the Family Law case of Hampton & Farley, in which the Family Court made good on a farmer’s promise to his son that “the farm” would be the son’s “one day”. There has since been another reported Family Court case of Daymond & Daymond, in which the wife sought a Family Law property settlement and claimed upon the husband’s share of a business, co-owned by his brother. The son of the husband and wife claimed that the husband and the son’s uncle held the business in trust for the son, due to assurances given years earlier that the son would take over the business after a period of working for them. Read the rest of this entry »
Deeds & Contracts – What’s the Difference?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
Deeds and contracts often look the same to the lay person but there is at least one potentially critical difference between them. For a contract to be binding there must be “consideration”. That does not apply to a Deed, which is binding once signed.
This issue was one of several considered in a recent case relating to a creditor’s Statutory Demand: Samkev Investments Pty Limited [2012] NSWSC 527. In simple terms, an insurer had provided a guarantee for payments to be made by Samkev under a commercial agreement. The insurer paid out on the guarantee and then pursued Samkev for reimbursement. Historically, Samkev had entered into Deeds with other insurers for this very purpose but, in circumstances too complex to set out in this article, while a Deed had been drafted, Samkev had not actually signed it. Read the rest of this entry »
When is a Contract Ambiguous?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
In 2006 a company developed a business plan under which it would acquire various medical practices and operate them as a single business, with a view to ultimately selling the business or listing on the stock exchange. In general terms, the ‘deal’ involved individual medical practitioners selling their practices, but taking shares in a new corporate business. They also entered contracts to provide continuing medical services to the business. A number of documents were executed to put the business model into place.
The plan was delayed because of the GFC. A further suite of documents was executed, during 2009, to defer the intended sale. These documents amended, but did not entirely replace, the 2006 documents. Read the rest of this entry »
Family Law Fee Increases
David Gawthorne is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law
Most people who separate from a spouse or de facto partner do not need to commence a case in a Family Law Court, as they are able to negotiate a settlement of their parenting or property issues with the assistance of Family Lawyers, Family Dispute Resolution Practitioners and other professionals working in the Family Law system.
This means that, when someone does commence a Family Law case, that person is probably having trouble getting a reasonable response from the other party towards settlement, including due to attempts to keep them under financial pressure, perhaps forcing them to accept less property or maintenance, or where children are being placed at risk of abuse or exposure to family violence. Read the rest of this entry »
When is a Child “a Child”?
Ashleigh John is a Senior Solicitor at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
This question was recently considered by the Family Court in Brisbane in the matter of Talbot & Norman.
In the course of a short relationship between the parents, the mother fell pregnant. Upon hearing that the mother intended to have an abortion the father brought an application to the Family Court seeking to prevent the mother from terminating the pregnancy and as a consequence force the mother to carry the child to term. At the time of the hearing the mother was 13 weeks pregnant. Read the rest of this entry »