April 20, 2020   |   by admin

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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It is sufficient to refer to the terms of the Elizabeth Spry Trust. The purpose of s.

This subsequently became the matrimonial home. The essential requirement of the section is that there be a sufficient association between the property the subject of a settlement and the marriage the subject of proceedings.

It is “property dealt with by The wife sought leave to amend her notices of contention. Further, as shall become clear, on each occasion that property was transferred to the Trust, the parties “dealt with” their property, and effected settlements within the meaning of 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.

There should be no order for the costs of the other respondents. It is so surprising that there must be a flaw in the reasoning that led to it.

The question sought to be raised is one which kennln not depend upon the establishment of further facts. The definition does not contemplate entitlements as trustee.

Further, Lord St Leonards was adamant that the interest of the class taking in default of appointment was not contingent, but vested. Alternatively the timing of orders may have been a matter left to the parties.


There is a difference between transferring an asset to the husband as trustee of the Trust, and transferring an asset to the husband as trustee, to be held on a separate trust having the same terms as the Trust.

Very lengthy case from initial issuing to final High Court judgment major confrontation between classic trust law and Family Law Kebnon with the Family Law Act considered paramount.

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. He was not a beneficiary but received kennn from the trust. Wrongly attributing its value to the husband is irrelevant to the ultimate orders made.

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

It is sufficient to indicate that the appeals should be allowed, the applications to amend the notices of contention should be dismissed, and the applications for special leave to cross-appeal should be dismissed. Hearing over 5 days before Strickland J. Husband further varied the trust by excluding himself and wife as capital beneficiaries. In particular it is, of course, necessary to have regard to the subject matter, scope and purpose of the relevant statute. There are other difficulties with these applications.

It may be suggested that the absurdity kennin 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.

On his death, he was to be succeeded by a person or persons specified in his will and, absent such specification, by Helen Spry.

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

If it be correct, the sprry 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. At least this will be so where the Court is unable sory to deal with property because the interests of a party to the marriage, or their ability to benefit from it, depend upon their status as a party to the marriage.


The instrument was said to be irrevocable. That case concerned the validity of an order in favour of a wife made by the Family Court requiring directors of a company not completely controlled by the husband to register a transfer of shares into her name. 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.

In Kelly No 2 the Full Court of the Family Court did not think the word wide enough to cover the assets of a trust in which the relevant party to the marriage was neither settlor nor appointor nor beneficiary and over which he or she had no control. In arriving at that view, her Honour expressed agreement with the submission that, because a divorce order had been made, the wife no longer qualified as a beneficiary.

At that point it could not have been referable to the marriage. He could appoint any other person as an additional trustee and could remove any such person as he saw fit. Further, just as s. The Trust Deed went through several variations, which somewhat reflected the state of his relationship with Mrs Spry.