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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A later cancellation by the parties to the Deed could not alter the effectiveness of the kennon. It is convenient to adopt the abbreviations there employed.

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

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.

In reaching this conclusion, she said one must look to the individual words of the section in light of their context and purpose. However we may not have heard the end of the case as questions of enforcement in the event the husband fails to comply with the order may arise and perhaps a differently constituted High Court the next time may give a different outcome. His Honour had found that the Trust was at all times subject to the control of the husband.

It is desirable to say something further specifically about that. But a right to require trustees to consider whether they will pay you something does not enable you to claim anything.

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

The case concerned a future entitlement to benefits from a superannuation fund. That disposition was not set aside by the court for reasons given by the primary judge in a passage in his reasons which is set out below.

However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. Whether, and the extent to which, a court would alter such interests might depend upon the remoteness or uncertainty of those interests. Wife files her application seeking property and spousal maintenance.


The Court of Appeal sprt that it had power to vary the settlement so long as the settlement was in existence at the time of the decree. Further, relevant common law rights and duties which may otherwise subsist must accommodate compliance with orders made in the exercise of federal jurisdiction.

Privacy Policy Terms and Conditions. Terms and beneficiaries of the trust settled. It facilitates both an identification of property the subject of contributions and a means of assessing that contribution, as earlier observed.

That is kenjon in the sense that if a general power is exercised in favour of the donee, the srpy becomes owner. A preferable approach is one which gives effect to the purposes of the section. His Honour said that essentially: It was submitted for the husband that it was not intended that the Court should make orders that would operate to the detriment of third parties.

The Court could make an order directly applying that property to her benefit. The existence of such a right did not depend upon entitlement to any fixed and transmissible beneficial interest in the trust fund.

That class did not include only the wife and sprry children. The Family Court cannot ignore the interests of third parties in the spty, nor the existence of conditions or covenants that limit the rights of the party who owns it. It has always been a powerful weapon to stop recalcitrant spouses from diminishing the matrimonial pool.

Other members of the Court delivered separate judgments. 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 kfnnon to these appeals is set out in the reasons for judgment of Gummow and Hayne Spyr. This would not involve a variation of the Trust.

Courts exercising matrimonial jurisdiction have for some time had the power with respect to property which was the subject of a settlement upon one or other kennoon the parties to the marriage, or which made provision for the parties, to apply some or all of it to the benefit of a party to the marriage following upon the termination of the marriage.


In December the wife filed her divorce application in the Federal Magistrates Court of Australia.

Husband varied the trust by excluding himself as a beneficiary. The positive argument of the trustees and the husband, and the positive argument of the wife. The positive argument of the trustees and the husband is correct. The husband used them initially in his attempt to remove assets from the reach of the wife and the Family Court, and for that the children cannot be criticised, but it is sad that the children have chosen to thereafter become involved in what is essentially a dispute between their parents.

Husband established 4 trusts in favour of his 4 children, Elizabeth, Catharine, Caroline and Penelope. That is a question arguably capable of having factual elements not investigated at trial.

The primary judge found that the wife should receive a sum of money, in addition to specific property, representing her contribution to the pool of assets which had kkennon created by the endeavours of the husband and wife. In this case the Chief Justice was not concerned about this argument and distinguished it by saying the husband as trustee owned the legal title and the wife had an equitable right to due consideration and administration.

The contributions of the parties to the marriage, direct or indirect, are central to the means by which the Court is to determine proceedings with respect to property.

The Articles of the company in that case gave to its directors a discretion to register or refuse to register a transfer of any shares in the company. It is intended to apply to settlements whether they occur before or during marriage. The trustees also placed reliance upon the description of the ,ennon of the Trust, which extended beyond the husband and wife and the children of the marriage.

Indeed, he never returned to the subject in any significant fashion. Carter J made orders granting leave for the children to intervene and be parties to the proceedings. A policy question was said to be kehnon.

Applications to amend notices of contention and for special leave to cross-appeal.