Bass & Bass and Anor - [2016] FamCAFC 64

FAMILY COURT OF AUSTRALIA

BASS & BASS AND ANOR

[2016] FamCAFC 64

FAMILY LAW – APPEAL – CHILD SUPPORT – Where the appellant seeks to appeal against orders made pursuant to the Child Support (Assessment) Act 1989 (Cth) (the “CSAA”) – where a child support trust was established as part of consent orders made on 17 July 2008 – where the appellant contends that the trial judge erred in failing to find that the balance of the funds held in the child support trust were to be held on a resulting trust for the appellant – where the appellant contends that the trial judge erred in the exercise of his discretion in not ordering the return to the appellant of the balance funds held in the trust pursuant to the CSAA.

FAMILY LAW – APPEAL – terms of a child support trust and the circumstances of its creation – whether settlor disposed of his beneficial interest in the funds settled upon in the trust – purpose or purposes of the child support trust – determined that on the proper construction of the terms of the child support trust in the circumstances of its creation the settlor disposed of his beneficial interest absolutely – no basis for a resulting trust.

FAMILY LAW – APPEAL – DISCRETION to make orders under the CSAA – no error demonstrated in the trial judge’s exercise of discretion – challenge to the trial judge’s costs orders fails.

FAMILY LAW – LEAVE TO APPEAL – consideration of discretion to grant leave to appeal pursuant to the CSAA.

Child Support (Assessment) Act 1989 (Cth)

Family Law Act 1975 (Cth)

Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Anor (1981) 148 CLR 170
Byrnes v Kendle (2011) 243 CLR 253
Jess and Ors & Jess and Ors (2014) FLC 93-620
Medlow & Medlow (2016) FLC 93-692
Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573
Re Andrew’s Trust. Carter v Andrew. [1905] 2 Ch. 48
Re The Trusts of the Abbott Fund. Smith v. Abbott. [1900] 2 Ch. 326
Re Australian Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia and Ors (1991) 30 FCR 491
Suttor v Gundowda Proprietary Limited (1950) 81 CLR 418
Water Board v Moustakas (1988) 180 CLR 491

APPELLANT:

Mr Bass

FIRST RESPONDENT:

Ms Bass

SECOND RESPONDENT:

Case Guardian

FILE NUMBER:

PAC

5029

2012

APPEAL NUMBER:

172

2014

DATE DELIVERED::

29 April 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Murphy and Kent JJ

HEARING DATE:

6 April 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:	2 December 2014
LOWER COURT MNC:	[2014] FamCA 1062

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Wilson SC

SOLICITOR FOR THE APPELLANT:

Tilley Family Law & Mediation

COUNSEL FOR THE FIRST RESPONDENT:

Mr Kearney SC

SOLICITOR FOR THE FIRST

RESPONDENT:

Broun Abrahams Burreket

COUNSEL FOR THE SECOND

RESPONDENT:

Mr Meek SC

SOLICITOR FOR THE SECOND

RESPONDENT:

Abrams Turner Whelan

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FamCAFC 64
Decision Date: 6 April 2016

CaseChat Overview and Summary

In the matter of Bass & Bass and Anor, the appellant husband appealed against the orders made by Aldridge J in the Family Court of Australia on 2 December 2014. The central issue in the appeal was the interpretation and application of the terms of a child support trust, as well as the trial judge's discretion in ordering the return of funds held in the trust under the Child Support (Assessment) Act 1989 (Cth). The trust was established as part of consent orders made on 17 July 2008, and the appellant contended that the trial judge erred in not finding that the balance of the funds in the trust should be held on a resulting trust for the appellant. The appellant also argued that the trial judge erred in the exercise of his discretion in not ordering the return of the balance of the funds held in the trust.

The court examined the terms of the child support trust and the circumstances of its creation to determine whether the settlor had disposed of his beneficial interest in the funds settled upon in the trust. The court found that the settlor had disposed of his beneficial interest absolutely, and there was no basis for a resulting trust. In relation to the trial judge's exercise of discretion under the Child Support (Assessment) Act 1989 (Cth), the court found no demonstrated error in the trial judge's decision. Additionally, the challenge to the trial judge's costs orders failed.

The court granted the appellant leave to appeal the orders made by Aldridge J on 2 December 2014 but dismissed the appeal. The appellant was ordered to pay the first respondent's costs of and incidental to the appeal on a party/party basis in the amount agreed or, failing agreement, to be assessed. The appellant was also ordered to pay the second respondent's costs of and incidental to the appeal on an indemnity basis in the amount agreed or, failing agreement, to be assessed.

Orders

Orders of the court

1. The appellant husband have leave to appeal the orders made by Aldridge J on 2 December 2014.

2. The appeal against the orders made by Aldridge J on 2 December 2014 be dismissed.

3. The appellant husband pay the first respondent wife’s costs of and incidental to the appeal on a party/party basis in the amount agreed or, failing agreement, to be assessed.

4. The appellant husband pay the second respondent Case Guardian’s costs of and incidental to the appeal on an indemnity basis in the amount agreed or, failing agreement, to be assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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