Bass & Bass and Anor

FAMILY COURT OF AUSTRALIA

BASS & BASS AND ANOR [2014] FamCA 1000

FAMILY LAW – PROPERTY – TRUST – Whether a trust has been established – Whether the trust established by the parties was limited in its use – Where a trust is established for the benefit of a child – Whether the trust was for the payment of child support – Whether the trust is capable of being modified – Whether the husband is entitled to the trust surplus as a result of an alleged failed trust – Where the wife seeks to remove the husband as trustee of the trust – Where the wife seeks payment of periodic child support – Where it is found that the trust was not limited in its application as suggested by the husband – Where it is found that it would not be just and equitable to return the corpus of the trust to the husband – Where the husband and wife are removed as trustees.

Family Law Act 1979 (Cth) ss 79A(1A), 117(4), (5) (6), (7), (7A, (8)

Child Support (Assessment) Act 1989 (Cth) ss 122, 123A, 124, 125, 129(2), 141(1), 151, 151B, 151C

Kautr v Hilton (1953) 90 CLR 86
Byrnes v Kendle (2011) 243 CLR 253
Morgan v 45 Flers Avenue Pty Limited (1987) 11 NSWLR 573
Abela and Abela (1995) FLC 92-568
Christian & Donald [2004] FamCA 1171
Miller v Cameron (1936) 54 CLR 572

APPLICANT:  Mr Bass

RESPONDENT:  Ms Bass

CASE GUARDIAN:  Ms Shaw

FILE NUMBER: PAC 5029 of 2012

DATE DELIVERED: 11 September 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 1 & 2 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Laughton SC

SOLICITOR FOR THE APPLICANT: Tilley Family Law & Mediation

COUNSEL FOR THE RESPONDENT: Mr Kearney SC

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

COUNSEL FOR THE CASE GUARDIAN: Mr Meek SC

SOLICITOR FOR THE CASE GUARDIAN: Abrams Turner Whelan

Orders

1. That this matter is stood over before me at 9.30 am on Friday 26 September 2014 and I direct the parties to attend on that occasion with short minutes of order to give effect to this judgment.

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

And

Ms Shaw

Case Guardian

REASONS FOR JUDGMENT

1. P Bass (“the child”) is 17 years old.  On 17 July 2008, the court, by consent, ordered Mr Bass (“the husband”) to pay $350,000 into a bank account to be held by a trust to be set up and used to support the child P, primarily by providing education at private schools, if possible (“the Trust”).

2. The orders, it is said, were made pursuant to the Child Support (Assessment) Act 1989 (Cth) (“CSAA”).

3. The child…