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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The position of an object of a bare power. The conclusion that a power of this kind exists, even if, as the wife submitted, the court would not as a matter of discretion exercise it adversely to third parties, is surprising.

Subsequently she applied to dissolve the marriage. The notices of appeal raised the same issues. The question of nexus is dependent upon statutory kemnon. If it be correct, the provisions of the Act, which do not postpone the making of a divorce order to the resolution of property claims, may have a consequence with respect to some rights.

Her Honour relied on the provisions of section 85A. Their interests are vested, but vested only in interest, not possession. The right of the wife with respect to the due administration of the Trust was included in her property for the purposes of the Act. Dr Spry created the Trust. The Court is not to make an order altering the interests of the kenhon in their property unless satisfied that it is just and equitable to do so. But in this Court it was raised. 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 Spty instrument and dispositions were made with the intention of defeating an anticipated order and should not be allowed to stand.

These words may require a less direct connection between a settlement and the marriage. The first issue the Court had spr consider was whether the trust assets kenbon the deed were property of the parties to the marriage within section 79 of the Act.


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

Husband further varied the trust by excluding himself and wife as capital beneficiaries marriage in trouble at this time. Carter J made orders granting leave for the children to intervene and be parties to the proceedings. 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. It is intended to apply to settlements whether they occur before or during marriage.

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. The case is Kennon and Spry. The wife accepted the applicability to the Trust of what Lords Reid and Wilberforce said. The purpose of s.

The wife has not attempted to have it set aside spty any stage. That is true in the sense that if a general power is exercised sspry favour of the donee, the donee becomes owner. It will be necessary to make further reference to these instruments later in these reasons. The applications for special leave to crossappeal should be dismissed but with no order as to costs.

It may imply some kind of continuing provision for them. 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.

The same is true for the members of a superannuation fund although vesting of a benefit may be many years in the future. 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.

However, the case is not to be decided merely in accordance with the tactical manoeuvrings of the parties, or their agreement on particular legal kenmon.

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

Earlier authorities in the Family Court, relied upon by the trial judge, involved a spouse who also had some capacity to benefit from the trust. Directions were given to allow amended notices of contention to spy filed and served together with applications for special leave to cross-appeal.


It has been said that it is sufficient for the establishment of a trust that property is impressed with a trust obligation. It does not require that a settlement made prior to marriage be directed to the particular marriage at the point it is made.

Family Law and Family Trusts

By the trust deed he appointed himself as trustee. It would follow that neither the husband psry the wife could receive any benefit from the Trust.

These contentions were supplemented by arguments about the amplitude of the orders that may be made under s There were four children of the marriage:. She also sought under s. In view of the fact that this judgment dissents from the orders proposed by the other members of the Court, it will be brief in dealing with the other difficulties. The single ground stated in each draft notice was:.

Nor was there any mandatory order of the nature considered in Ascot Investments Pty Ltd v Harper which extinguished the rights or enlarged the obligations of third parties. It cannot involve an absolute interest in property, given that the statutory provisions referred to give the courts power to vary it.

In Januaryfollowing their separation, the Trust was split into four different trusts, each for the benefit of the four Spry daughters, with Dr Spry and his friend, Mr Kennon, as joint trustees.

It limits the alienation and transferability of the property. That is because the purpose of the definition is to enable the parts of the Act to which it relates to function.

The Trust assets constitute property, much of which was obtained by way of the parties’ contributions to the marriage. The form that a settlement takes has not been regarded as of importance; rather it is necessary ,ennon it provide for the financial benefit of one or other of the spouses.