Bass and Bass

[2013] FamCA 185

FAMILY COURT OF AUSTRALIA

BASS & BASS [2013] FamCA 185

FAMILY LAW – JURISDICTION – Application for transfer to Supreme Court – Discussion of accrued jurisdiction and consideration of relevant authorities – Where wife’s application for transfer to the Supreme Court is dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Application for husband to be removed or suspended as trustee of the Trust – Whether husband’s commencement and prosecution of the proceedings places him in conflict with his obligation as a trustee – Where wife’s application for husband to be removed or suspended as trustee of the Trust is dismissed.

Family Law Act 1975 (Cth) ss: 13; 34; 66G; 74
Child Support (Assessment) Act 1989(Cth) ss: 99(1); 124; 129
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ss: 4(1); 5(5)
Trustee Act 1925 (NSW) s 81

Allsop Wilkinson  v Neary [1995] 1 All ER 431 at 434
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
Chapman and Jansen (1990) 13 Fam LR 853
Fay v Moramba Services Pty Limited [2009] NSWSC 1428
Fencott v Muller-Brown (1983) 152 CLR 570
In the marriage of Warby (2001) 28 Fam LR 443
Kenda & Johnson 15 Fam LR 369
Phillip Morris Inc v Adam P Brown Male Fashions Pty Limited (1981) 148 CLR 457
Queensland Mines Limited v Hudson (1978) 18 ALR 1
Valceski and Valceski [2007] NSWSC 440
Welker v Rinehart (No 10) [2012] NSWSC 1330

APPLICANT: Mr Bass

RESPONDENT: Ms Bass

FILE NUMBER: PAC 5029 of 2012

DATE DELIVERED: 27 March 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 25 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Laughton

SOLICITOR FOR THE APPLICANT: McLarens Lawyers

COUNSEL FOR THE RESPONDENT: Mr Henry

SOLICITOR FOR THE RESPONDENT: Broun Abrahams

Orders

1. That the application for the removal or suspension of the applicant as trustee of the B Trust be dismissed.

2. That the application for transfer of these proceedings to the Supreme Court of New South Wales be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bass & Bass has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5029 of 2012

Mr Bass

Applicant

And

Ms Bass

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. In his Initiating Application filed 9 November 2012 Mr Bass (“the applicant”) sought an order that orders made by this Court on 17 July 2008 (“the 2008 orders”) pursuant to s 129(1) of the Child Support (Assessment) Act 1989 (“the CSAA”) be discharged and for other related orders.

2. Ms Bass (“the respondent”) has brought an interim application seeking orders (as ultimately set out in her counsel’s Outline of Submissions dated 22 February 2013) that the application be transferred to the Supreme Court of New South Wales, that the applicant be removed or suspended as a Trustee of the Trust created by the 2008 orders and that orders be made for provision by the applicant of security for costs.  The last matter was dealt with by agreement of the parties at the hearing.

3. The orders sought in the Initiating Application are:

   1.An Order pursuant to s 129(1) of the Child Support (Assessment) Act that Orders 16 to 24 of Orders made by the court on 17^th July 2008 (the Orders) be discharged.

   2.An Order consequent upon Order 1 that the funds standing to the credit of the National Australia Bank Limited account in the joint names of the parties and styled [B Trust] be paid to the Applicant Father.

   3.An Order that the issue of child support for the child [B] born … August 1997 (“the child”) be determined by the Child Support Agency by way of administrative assessment pursuant to the Act.

   4.In the alternative to Orders 1 to 3 above, a Declaration that the Trust established pursuant to the Orders has failed and there be a reduction in the Corpus of the Trust to the sum of $30,000.00 and the surplus funds standing to the credit of the Account be paid to the Applicant Father.

   5.An Order that the Respondent Mother pay the Applicant Father’s costs of and incidental to the proceedings.

4. The respondent consents to orders 1 and 3 as sought by the applicant but that does not dispose of the issues between the parties because the applicant contends that if order 1 as sought by him is made the B Trust created by those orders is itself discharged whereas the respondent contends that if the orders are discharged the Trust created by them continues in existence. The respondent further contends that given the discharge of Orders 16 to 24 of the Consent Orders made by this Court on 17 July 2008 as sought by the applicant and consented to by the respondent then this Court no longer has jurisdiction to make orders in relation to the Trust. 

5. The relevant orders made by the court in 2008 referred to above are:

   Departure Orders made pursuant to the Child Support Act

   16.Pursuant to section 124 of the Child Support Act the Husband shall provide child support to the Wife for the child as follows:

   16.1by way of payment as and when the fall due, all tuition fees until the end of [the child’s] primary school education at [Y School], or such other school as the parties may agree in writing;

   16.2by way of payment of, as and when they fall due, all tuition fees for the whole of [the child’s] secondary school education (ie, up to and including year 12 unless the school recommends otherwise or the parties agree otherwise in writing) for such of the schools selected under the provisions of Order 12.2;

   16.3by way of payment of, as and when they fall due, all applicable tuition fees and/or course fees to enable [the child] to undertake a life skills course or similar if [the child] does not complete his secondary education (up to and including Year 12) at one of the schools provided by Order 12.2;

   16.4by way of payment of, as and when they fall due, all other educational expenses that are included on the school account for [the child] including school books, the provision of a teacher’s school aide, if recommended by the school, extra curricular activities (provided if the extra curricular expenses exceeds $200, it must be agreed by the parties in writing, such agreement not to unreasonably withheld);

   16.5by way of payment of, as and when they fall due, all fees applicable to [the child’s] comprehension tutoring (currently undertaken by [Ms EE]) in accordance with Order 11.2;

   16.6by way of payment of, as and when they fall due, all fees applicable to maths tutoring for [the child] in accordance with Order 11.3;

   16.7by way of payment of, as and when they fall due, all music lessons for [the child] arranged in accordance with Order 11.4;

   16.8by way of payment of, as and when they fall due, all costs incurred in relation to [the child’s] school uniforms and sports equipment;

   16.9by way of payment of, as and when they fall due, one half of all medical, hospital, orthodontic, dental, therapy and other expenses arising in relation to [the child’s] well being and health that are not covered by [the child’s] entitlement under the private health insurance policy maintained by the Wife in respect of [the child] and the Wife shall continue to maintain the current level of private health insurance until a child support terminating event occurs in relation to [the child]; and, notwithstanding any contrary provision of these Orders the payments referred to as being payable by the husband and the payments referred to as being payable by the wife in this Order 16.9 are not to be paid by [B Trust], but by the parties respectively; and

   16.10by way of payment of, as and when they fall due, such other educational expenses as may be agreed by the parties in writing.

   17.The child support order to be paid by the Husband in accordance with Order 16 herein is to reduce the amount payable by him under any Assessment of child support.  For the period from the date of these Orders until a child support terminating event occurs in relation to [the child] the Husband’s payments in accordance with Order 15 herein are to reduce the annual rate of child support payable by him by 100 per cent to nil.

   18.      Except as provided by Order 16, the parties shall otherwise bear sole responsibility for all costs in relation to [the child] whilst he is in their respective care.

   19. Pursuant to section 124 of the Child Support Act the Wife shall provide child support to the Husband for [the child] by way of payment of all costs in relation to the child whilst the child is in the care of the Wife.

   20.      The child support order to be paid by the Wife in accordance with Order 19 herein is to reduce the amount payable by her under any Assessment of child support.  For the period from the date of these Orders until a child support terminating event occurs in relation to [the child] the Wife’s payments in accordance with Order 19 herein are to reduce the annual rate of child support payable by her to 100 per cent to nil.

   21. Pursuant to section 117 of the Child Support Act there be a departure from the administrative assessment of child support payable by the Husband for the child such that for the period from the commencement of the Husband’s child support liability in respect of [the child] to the date of these Orders the total amount of child support be set equal to the monies already paid for that period, including the value of any non-agency payment credited for the same period, with the effect that no arrears remain payable and no overpayment is created.

   22.Forthwith upon the making of these Orders the Husband and Wife shall do all things and sign all documents necessary to establish [B Trust] for the purpose of this Order:

   22.1the Husband shall cause to be paid to a National Australia Bank account in the name of [B Trust] the sum of $350,000 by way of payment of $5,000 within 7 days of the date of the making of these orders and a further $345,000 within 60 days of the making of these orders;

   22.2the Husband and Wife shall instruct [FF Legal] to prepare the trust deed and any other documentation necessary to establish [B Trust], the costs of and incidental to such preparation to be paid by the trustees out of the capital of the B Trust;

   22.3the Husband and Wife shall be the trustees of the said trust

   22.4the terms of [B Trust] must include the following terms:

   22.4.1until [B Trust] is wound up, its capital must be applied to meet the obligations referred to in Order 16.

   22.4.2the trustee shall pay education or tutoring expenses additional to those specified in Order 16 as agreed between the parties in writing.

   22.4.3the trustees shall cause [B Trust] to be wound up on 31 December 2015, unless the parties agree in writing to extend the date for the winding up of the trust

   22.4.4upon the winding up of the trust, the trustee shall hold any residual corpus in [B Trust] for [the child] absolutely.

   22.4.5all income of [B Trust] is to be paid to the Husband as and when it is received, on the basis that the Husband is solely responsible for:

   22.4.5.1     all costs associated with the administration of the B Trust (except the costs referred to in Order 22.2); and

   22.4.5.2     all tax arising on income received by [B Trust].

   23.     That the Husband’s child support liability pursuant to Order 16 herein shall be reduced by such amount and to the extent that any or all of the liability of the Husband subject to Order 16 is met by means of payments from [B Trust] provided that in the event that any payments from [B Trust] (whether by way of income and/or capital) are insufficient to meet the liability of the Husband pursuant to Order 16 then the Husband shall be and remain liable for such payment pursuant to Order 16.

   24.     The child support ordered to be provided by the Husband is intended by the parties to represent 100 per cent of any liability of the Husband for child support for all of the children of the marriage, including any claim for arrears of child support.   To that end, each of the parties shall, forthwith upon the making of these Orders, do all acts and things necessary to:

   24.1.withdraw any outstanding applications for review in relation to child support;

   24.2.acknowledge that any arrears of child support are waived; and

   24.3.cause to be registered the present Agreement with the Child Support Agency.  

6. The critical order is Order 22 which requires the Applicant and the Respondent to do all things and to sign all documents necessary to establish the Trust, as defined in those orders, and sets out a number of terms of the Trust.

7. No trust deed or other documentation required to establish the Trust, as referred to in Order 22.2, was ever created.

8. The applicant contends that the court can derive from the terms of the orders themselves and from the evidence he proposes calling at a final hearing that the intention of the orders was to provide for the payment of a private school education for the child.  This is because the Trust, unusually, was structured so that the income received from the corpus was to be paid to the applicant and the corpus itself used to be paid for the school fees.  The applicant contends that the amount agreed between the parties to be paid into the Trust was calculated on the basis that the funds in the Trust would be sufficient to pay the private school fees for the child until he ceased school.

9. As events have turned out, the child did not go to a private school but rather to public schools.  That means, according to the husband, contrary to the expectations when the Trust was set up, instead of there being little by way of corpus remaining in the Trust there is some $300,000.00 remaining.  Pursuant to clauses 22.4.3 and 22.4.4 the Trust will be wound up on 31 December 2015 and upon this winding up the corpus shall be held by the Trustee for the child absolutely.

10. At the hearing the applicant will contend for a finding that the purpose of the Trust was to pay for the child’s private school education and as that purpose has failed in that he did not have such an education the applicant should, not to put a too fine a point on it, get his money back, the purpose for which it had been paid having failed.

11. The applicant contends that the Trust was created pursuant to orders made under s 124 of the CSAA (being an order for the provision of child support otherwise than a periodic amount), that the Trust so created has no independent existence other than for the orders and that discharge of the orders will discharge the Trust. Thus the trustees will have in their hands the funds of the former Trust and that this Court has jurisdiction to make orders in relation to them.

12. Conversely, the respondent contends that to the extent that order 4 as sought in the Initiating Application filed 9 November 2012 relies on general equitable relief this Court has no jurisdiction to deal with it under its accrued jurisdiction.

13. The respondent contends that once created by the orders the Trust acquired an independent existence which will be unaffected by the discharge of the orders leading to its creation and that if the court makes orders 1 and 3 as sought by the applicant in the Initiating Application its jurisdiction will be spent and it cannot proceed to determine the balance of the application. In those circumstances it is submitted that it would be preferable for the entire matter to be transferred to the Supreme Court as it has the requisite jurisdiction to deal with what might be described as the general trust or equitable issues and that court would also be able to exercise the Family Court’s jurisdiction under the CSAA pursuant to s 4(1) of the Jurisdiction of Court (Cross-Vesting) Act 1987 (Cth). 

14. Pursuant to s 129 of the CSAA the court may discharge or vary an order made under s 124 subject, of course, to the satisfaction of the conditions for the exercise of that power set out in the balance of s 129.

The transfer application

1. Section 5(5) of the Jurisdiction of Courts (Cross-vesting) Act1987 (Cth) provides:

   Where:

   (a) a proceeding (in this subsection referred to as the “relevant proceeding”) is pending in the Federal Court or the Family Court

   (in this subsection referred to as the “first court”), and

   (b) it appears to the first court that:

   (i)       the relevant proceeding arises out of, or is related to,

   another proceeding pending in the other of the courts referred to in paragraph (a)  and it is more appropriate that the relevant proceeding be determined by the other of the courts referred to in paragraph (a);

   (ii)it is otherwise in the interests of justice that the relevant proceeding be determined by the other of the courts referred to in (a),

   the first court shall transfer the relevant proceeding to that other court.

2. In this case I am concerned with s 5(5) (b) (ii). Therefore I must transfer these proceedings if I find it is in the interests of justice that the proceeding be determined by the Supreme Court of New South Wales.

3. In Bankinvest AG v Seabrook (1988) 14 NSWLR 711 it was held that the court in hearing an application under this section must determine which court, in the interests of justice, is the more appropriate court to hear and determine the dispute.

4. In Chapman and Jansen (1990) 13 Fam LR 853 Fogarty J said at 868:

   (1)Where a proceeding instituted in the Family Court is confined to claims which, but for the cross-vesting legislation, are outside the jurisdiction of this court, that proceeding, should, other than in special circumstances, be transferred to the appropriate state court:  Re Staples and McCall, supra, and see also Broman and Clarke (1990) 13 Fam LR 676; [1990] FLC 92-115;

   (2)Where the proceeding when instituted was composed partly of Family Court and partly of cross-vested claims, but which, at the time of the hearing of the application to transfer, had only cross-vested claims, ordinarily, but subject to the individual facts of the case, the proceeding should be transferred to the appropriate state court for determination.

   (3)Where at the time of the application or transfer the proceedings composed partly of Family Court and partly of cross-vested claims, the question of whether that proceeding should be transferred to the state court or should proceed to determination in the Family Court is a matter of justice and balance in each particular case.  It is a question of determining which is the “natural forum” and which court has the “most real and substantial connection”:  see Bankinvest at 728 and the cases therein referred to; Berry v Wakley and Black (1988) 12 Fam LR 451; [1988] FLC 91-972 is a good example of this.

   This passage was quoted with approval by the Full Court in Kenda & Johnson 15 Fam LR 369 at 373 with their Honours adding that the expression “interests of justice” is not one to be narrowly confined.

5. In determining whether or not it is in the interests of justice that these proceedings should be determined by the Supreme Court of New South Wales I bear in mind that I should not determine any of the issues raised in the proceedings because this is an interlocutory application and one from which there is no appeal (see section 13 of the Act).

6. It is accepted by the respondent that this Court has jurisdiction to make orders 1 and 3 sought by the applicant. This must be so given that these orders can only be made under s 129 of the CSAA and s 99 (1) of that Act confers jurisdiction under that Act only on the Family Court, the Federal Magistrates’ Court, the Supreme Court of the Northern Territory and the Family Court of a state.

Accrued Jurisdiction

1. Despite some early controversy it is without doubt that this Court has an accrued jurisdiction by which, in circumstances, it has jurisdiction to hear and determine non-federal issues. See generally In the marriage of Warby (2001) 28 Fam LR 443; (2001) FLC 93-091; Valceski and Valceski (2007) 210 FLR 387; (2007) 36 Fam LR 620; (2007) FLC 93-312; [2007] NSWSC 440. In Phillip Morris Inc v Adam P Brown Male Fashions Pty Limited (1981) 148 CLR 457 at 475 Barwick CJ said:

   It is settled doctrine in Australia that when a court can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter.  This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has in the first place attracted federal jurisdiction.  It extends, in my opinion, to the resolution of the whole matter between the parties.  This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution.  For this purpose the court exercising federal jurisdiction may enforce rights which derive from a non-federal source.  The exercise of this jurisdiction, which for want of a better term I shall call “accrued” jurisdiction, is discretionary and not mandatory, though it will be obligatory to exercise the Federal jurisdiction which has been attracted in relation to the matter.

1. In Fencott v Muller-Brown (1983) 152 CLR 570 (at page 608), members of the High Court said:

   What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships.  The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.  But, in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.

2. In Valceski, Brereton J said in paragraph 39:

   Thus, when a federal court is invested with federal jurisdiction, it is also invested with the power to determine non-federal aspects of a justiciable controversy which involves the exercise of its federal jurisdiction, provided that the non-federal aspects of the controversy form an integral part of the same controversy.  The scope of the “matter” in respect of which a federal court has jurisdiction is described by the ambit of the justiciable controversy.  There is but a single matter, and the non-federal claims are within the accrued jurisdiction, where the different claims arise out of “common transactions and facts” or “a common substratum of facts”, notwithstanding that the facts upon which the claims depend “do not wholly coincide” or where different claims are so related that the determination of one is essential to the determination of the other or where, if the proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings.  However, it must always be borne in mind that the ultimate question is not the existence of each of the several suggested indicia, but whether there is in substance a single justiciable controversy. [original references to authority omitted].

3. Whilst the issue of whether or not the discharge of the orders also has the effect of discharging the trust is not raised in expressed terms in either the Initiating Application or the Response it seems to me that it is raised clearly by the claims in orders 2 and 4 of the orders sought by the applicant. This is because that issue would need to be resolved before the making of either of those orders could be considered.  The effect of the discharge of Orders 16 to 24 of 17 July 2008 is an integral part of the controversy between the parties.

4. Counsel for the applicant asserted that there were three jurisdictional bases for the orders sought in order 4 of his Initiating Application. The first was what was described as the general maintenance power. The Family Court is a statutory court. It has a specific power under s 74 of the Family Law Act 1975 to make an order for spousal maintenance; it has power to make an order under s 66G for child maintenance and has jurisdiction to make child support orders under the CSAA. The exercise of power in relation to each of those sections depends of course on the satisfaction of the jurisdictional requirements of each section. I am therefore doubtful that there is a general maintenance power but if there is one, it must derive from the Family Law Act. 

5. The second basis for order 4 as sought by the applicant was that it was said to be a consequential order following upon the discharge of Orders 16 to 24 of 17 July 2008. 

6. The third basis was reliance upon s 129(1)(f) of the CSAA.

7. In my opinion the issues raised by orders 2 and 4 as sought by the applicant are part of the one justiciable controversy before the court which is whether the present child support orders should be discharged, the effect of their discharge and if discharged the fate of the funds that were the subject of the order.  The application for discharge is itself an application made under an act pursuant to which express jurisdiction is given to this Court. The orders were made by this Court.  The effect of those orders (that is whether the Trust is merely a function of those orders or has a separate existence) is so intertwined with the issue of whether or not they should be set aside renders them one justiciable controversy or one matter. 

8. The respondent argues that if the court accepts her position that after discharge of the orders the Trust continues to exist any application to change the constitution or management of that trust is then a separate issue so different in kind that it ceases to be the same matter. In my opinion this is taking too narrow a view of the word “matter”. The real controversy between the parties is whether the orders and Trust should remain in their present terms so that upon determination of the Trust in December 2015 the child receives then the corpus of the Trust or whether there should be some variation to those terms so that the funds are returned to the applicant. Central to that consideration is an examination of interests of the child and the purpose of the orders and the Trust. The determination whether or not there is a power under the general law to terminate this Trust because its purpose has failed and return the money to the applicant and if so, how that power should be exercised is part of that one issue. That determination would be made in the context of the appropriateness of and the effect of setting aside the orders which were made for child support under the CSAA.

9. The facts and circumstances giving rise to the considerations in both are similar if not identical. The one further matter to be determined, if it arises, is the power under the general law to deal with a trust where the purpose has failed.

10. I am satisfied that all of the orders sought by the applicant are within the scope of one controversy and accordingly are within the express jurisdiction of this Court or its accrued jurisdiction.

Transfer of the Proceedings

1. I have already accepted that the Supreme Court of New South Wales has jurisdiction in these proceedings.  The respondent submitted that the only basis upon which order 4 as sought by the applicant could be brought was s 81 of the Trustee Act1925 (NSW) which authorises the Supreme Court to authorise trustees to carry out acts which, without the authorisation, would be a breach of trust.

2. The applicant does not rely on that provision. It is not at all certain that section 81 would entitle a court to make the orders sought by the applicant. I place little weight on the need for the applicant to rely on this section.

3. These proceedings are intimately associated with orders of this Court made under an Act under which it has jurisdiction and the Supreme Court does not.  The more natural forum for the determination of discharge of these orders is this Court because they were made by it, it has the express power to discharge them or not and such determinations are part of its general work.  A significant part of that determination will be a determination of the purpose of those orders and the welfare of the child.  That consideration is best done, in my opinion, by a court that regularly does so in the course of its general business.

4. In saying this, I do not say that the Supreme Court is less capable than this Court in making such a determination but merely that issues relating to child support departure orders are within the general day-to-day business of this Court and not the Supreme Court of New South Wales. 

5. I am satisfied that the matters complained are not likely to fall within the exclusive jurisdiction of the Supreme Court.  I am not satisfied that it is in the interests of justice that the proceedings be transferred to the Supreme Court of New South Wales and that part of the wife’s interim application is refused.

Removal of Trustee

1. The two trustees of the Trust are presently the applicant and the respondent.  The applicant seeks to in effect determine the Trust.  The respondent contends that the commencement and prosecution of these proceedings by the applicant places him in conflict with his obligations as a trustee.  This is because it is not appropriate for a trustee having a personal interest conflicting with the interests of the beneficiaries, whom he is bound to protect:  Queensland Mines Limited v Hudson (1978) 18 ALR 1 (at page 3). It was also asserted that these proceedings are in breach of his obligation as trustee to protect and preserve the trust funds for the beneficiaries. Allsop Wilkinson v Neary [1995] 1 All ER 431 at 434. See also generally on the removal of trustees: Fay v Moramba Services Pty Limited [2009] NSWSC 1428 at [20] – [25] and Welker v Rinehart (No 10) [2012] NSWSC 1330.

2. There was no suggestion made by the respondent that there was any present threat to the assets of the Trust. I do not propose to order the removal of the applicant as a trustee. It is a serious step to remove a trustee and such an order should not be made on an interlocutory basis. There is no present threat to the assets and actions of the trustee. However, I accept the propositions of law put forward by the respondent that the obligation of a trustee is to protect and uphold the interests of the beneficiaries. It seems to me, however, that in the present case that the respondent’s submission assumes the correctness of the respondent’s position that the Trust has an independent life separate from the orders that gave rise to it. If that is the position the submissions of the respondent have considerable force. If the position is the contrary then the applicant is exercising an entitlement under s 129 of the CSAA.  In an application under that Act it does not seem to be essential that the applicant should resign as trustee of the Trust, or be removed, simply because he is bringing an application that would bring those orders to an end and may itself bring the Trust to an end. 

3. There is no suggestion of any improper dealings in relation to the Trust.  If there were, appropriate orders could readily be made to protect the position of the Trust. 

4. In the alternative the respondent sought the suspension of the applicant as a trustee. The power to do that was said to be s 34 of the Family Law Act, the court’s implied or inherent power to prevent such a process to be used to bring about injustice or s 129(1)(d) of the CSAA.  As to the last there has not been a consideration of and a finding that the necessary matters that need to be established to the exercise of power under that section have in fact been established. 

5. As to the other two sources of power assuming that they provide the source of power to make that order the same considerations apply that lead me to refuse the removal of the applicant as trustee.

6. In summary, the applications for transfer of these proceedings to the Supreme Court of New South Wales and for the removal or suspension of the trustee as an interim order are refused.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 27 March 2013.

Associate: 

Date:  26 March 2013