Gummow CJ
Court or Tribunal: High Court of Australia
Catchwords: Family Trust, Wills & Probate
Judges: French CJGummow CJHayne JHeydon JKiefel J
Background: This involved a senior Melbourne QC. Before he was married he had set up a trust, and he was the trustee and was entitled to vary the terms of the trust. The beneficiaries were himself, his siblings, their children and their spouses. By two amendments, both the husband and the wife were excluded from the list of beneficiaries. The last amendment was effected at a time when the marriage was in trouble. The husband as trustee subsequently moved several million dollars from the trust to their children and to trusts for the children.
[Legal Issue]The existence of a family trust has caused difficulties in Family Law property disputes, because if, say, the husband is a beneficiary under a trust, he does not actually own anything until a distribution is decided upon. The Family Court's power is to deal with "property", and so there were real doubts about the court's ability to make orders about a possible entitlement under a trust.
[Court Orders]The legal ramifications with family trusts as a result of Kennon and Spry suggests that a family trust is not intended to be used to disadvantage a spouse following a marriage breakdown. The use of s.106B, s.85A are powerful weapons and when you weave in submissions concerning the right of due administration and due consideration these make it very difficult to exclude a spouse from some entitlement under a trust.
However we may not have heard the end of the case as questions of enforcement
Catchwords: Family Trust, Wills & Probate
Judges: French CJGummow CJHayne JHeydon JKiefel J
Background: This involved a senior Melbourne QC. Before he was married he had set up a trust, and he was the trustee and was entitled to vary the terms of the trust. The beneficiaries were himself, his siblings, their children and their spouses. By two amendments, both the husband and the wife were excluded from the list of beneficiaries. The last amendment was effected at a time when the marriage was in trouble. The husband as trustee subsequently moved several million dollars from the trust to their children and to trusts for the children.
[Legal Issue]The existence of a family trust has caused difficulties in Family Law property disputes, because if, say, the husband is a beneficiary under a trust, he does not actually own anything until a distribution is decided upon. The Family Court's power is to deal with "property", and so there were real doubts about the court's ability to make orders about a possible entitlement under a trust.
[Court Orders]The legal ramifications with family trusts as a result of Kennon and Spry suggests that a family trust is not intended to be used to disadvantage a spouse following a marriage breakdown. The use of s.106B, s.85A are powerful weapons and when you weave in submissions concerning the right of due administration and due consideration these make it very difficult to exclude a spouse from some entitlement under a trust.
However we may not have heard the end of the case as questions of enforcement
Court or Tribunal: High Court of Australia
Catchwords: Appeal, Paternity Fraud
Judges: Crennan JGleeson JGummow CJHayne JHeydon JKirby J
Background: Ms Magill had made false representations in the course of the marriage concerning the paternity of children born during the marriage. DNA testing after the marriage ended revealed two children of the marriage were not the biological children of the Mr Magill.
[Legal Issue]At issue in these proceedings was the notion of paternity fraud, and whether the tort of deceit can be applied in a marital context in relation to false representations of paternity.
Once finding out that he was not the father of his two youngest children, and his ex-wife aware that he was likely not the father, he sued, launching a case for deceit in the Victorian County Court, claiming damages for personal injury in the form of anxiety and depression resulting from fraudulent misrepresentations.
He also claimed financial loss, including loss of earning capacity by reason of his psychiatric problems and expenditure on the children under the mistaken belief he was their father, plus exemplary damages.
The County Court awarded him $70,000 from his ex-wife, including $30,000 for gen
[Court Orders]The judges unanimously ruled that the case for paternity fraud brought by Liam Neale Magill failed.
Three judges held that no action for deceit could lie in representations about paternity made between spouses.
Three other judges held that there could be circumstances in which such an action might succeed but they were exceptional and did not cover Mr Magill's situation.
However, the court also rejected an argument put by Mr Magill's former wife Meredith that the Family Law Act ruled ou
Catchwords: Appeal, Paternity Fraud
Judges: Crennan JGleeson JGummow CJHayne JHeydon JKirby J
Background: Ms Magill had made false representations in the course of the marriage concerning the paternity of children born during the marriage. DNA testing after the marriage ended revealed two children of the marriage were not the biological children of the Mr Magill.
[Legal Issue]At issue in these proceedings was the notion of paternity fraud, and whether the tort of deceit can be applied in a marital context in relation to false representations of paternity.
Once finding out that he was not the father of his two youngest children, and his ex-wife aware that he was likely not the father, he sued, launching a case for deceit in the Victorian County Court, claiming damages for personal injury in the form of anxiety and depression resulting from fraudulent misrepresentations.
He also claimed financial loss, including loss of earning capacity by reason of his psychiatric problems and expenditure on the children under the mistaken belief he was their father, plus exemplary damages.
The County Court awarded him $70,000 from his ex-wife, including $30,000 for gen
[Court Orders]The judges unanimously ruled that the case for paternity fraud brought by Liam Neale Magill failed.
Three judges held that no action for deceit could lie in representations about paternity made between spouses.
Three other judges held that there could be circumstances in which such an action might succeed but they were exceptional and did not cover Mr Magill's situation.
However, the court also rejected an argument put by Mr Magill's former wife Meredith that the Family Law Act ruled ou