Bernard and Bernard - [2019] FamCA 421

FAMILY COURT OF AUSTRALIA

BERNARD & BERNARD

[2019] FamCA 421

FAMILY LAW – PROPERTY – What constitutes matrimonial property? – Whether the assets in a trust of which the husband is a primary beneficiary should form part of the matrimonial pool for division – wife’s application to include the assets of the Mr Bernard Family Will Trust as part of the matrimonial pool for pool for division dismissed.

Family Law Act 1975 (Cth) s 79.
Partnership Act 1892

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Ashton and Ashton (1986) FLC 91-777
Davidson and Davidson (1991) FLC 92-197
Goodwin and Goodwin Alpe (1991) FLC 92-192
Harris & Dewell [2018] FamCAFC 94
Harris and Harris (1991) FLC 92-254
In the Marriage of Hauff [1986] FamCA 16
JEL and DDF (2001) FLC 93-075
Kelly and Kelly (1981) FLC 91-108
Kennon & Spry (2008) 238 CLR 366
Spry’s case: Exploring the limits of discretionary trusts (2010) 84 ALJ 177
Stein and Stein (1986) FLC 92-804
Stephens & Stephens (2007) FLC 91-779

APPLICANT:

Mr Bernard

RESPONDENT:

Ms Bernard

INTERVENOR:

Ms C Bernard

FILE NUMBER:

WOC

930

2016

DATE DELIVERED:

5 July 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

26 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson SC

SOLICITOR FOR THE APPLICANT:

Maguire & McInerney Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr McInerney SC

SOLICITOR FOR THE FIRST RESPONDENT:

Acorn Lawyers

COUNSEL FOR THE SECOND RESPONDENT:

Ms Power

SOLICITOR FOR THE SECOND RESPONDENT:

Rossi Simicic Lawyers

Orders

The wife’s Application in a Case filed 1 November 2018 is dismissed.
The Orders of Justice Loughnan made 26 March 2018 be stayed.
The application for orders filed by the wife on 6 November 2018 against the second respondent be dismissed.
The second respondent be released as a party to these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 930 of 2016

Mr Bernard

Applicant

And

Ms Bernard

First Respondent

And

Ms C Bernard

Second Respondent

REASONS FOR JUDGMENT

The matter of Bernard is a discrete application arising from section 79[1] proceedings. The application concerns the wife’s claim, that the husband’s interests in the Mr Bernard Family Will Trust, henceforth known as the Mr Bernard Trust, forms part of the matrimonial pool. The husband contends this trust does form part of the matrimonial pool for division and is only a financial resource and is…

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.

Continue reading Bernard and Bernard

Details

AGLC: Bernard and Bernard [2019] FamCA 421
Case: [2019] FamCA 421
Decision Date: 5 July 2019

CaseChat Overview and Summary

In the matter of *Bernard and Bernard*, Henderson J considered applications brought by the wife concerning proceedings initiated by the husband. The wife sought to challenge certain orders and to join a second respondent to the proceedings.

The primary legal issues before the court were whether the wife's applications were validly made and whether the second respondent should be released from the proceedings. The court was required to determine the appropriate course of action regarding the wife's challenges to existing orders and her attempts to introduce a new party.

Henderson J dismissed the wife's application filed on 1 November 2018, which sought to vary or set aside previous orders. The court also ordered a stay of the orders made by Justice Loughnan on 26 March 2018. Furthermore, the wife's application filed on 6 November 2018, seeking orders against the second respondent, was dismissed, and the second respondent was released as a party to the proceedings.

Orders

Orders of the court

The wife’s Application in a Case filed 1 November 2018 is dismissed.

The Orders of Justice Loughnan made 26 March 2018 be stayed.

The application for orders filed by the wife on 6 November 2018 against the second respondent be dismissed.

The second respondent be released as a party to these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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