FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Caldwell & Caldwell [2025] FedCFamC1F 506
File number: BRC 2242 of 2024 Judgment of: CAREW J Date of judgment: 30 July 2025 Catchwords: FAMILY LAW – PROPERTY – TRUSTS – PROPER PURPOSE RULE – Declaration sought – Whether declaration necessary – Where a determination is sought that trusts and/or trust assets are property of the marriage or either of them within the meaning of the Family Law Act 1975 (Cth) – Where it is determined that the trusts are not a sham or alter ego of the husband – Where the wife is an excluded beneficiary of the trusts – Where the assets of the trusts do not represent labours or contributions of either party –Where the husband and wife have accumulated significant wealth outside the trusts from which a just and equitable settlement may be achieved – Where it is conceded that the trusts’ assets are a financial resource of the husband for the purposes of s 79 – Where it is decided that the trusts and/or trust assets are not property within the meaning of s 79. Legislation: Corporations Act 2001 (Cth) ss 224, 229, 232
Family Law Act 1975 (Cth) ss 4, 78, 79, 90AE, 106B, 114
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 9, 25(1), 44, 141
Federal Court of Australia Act 1976 (Cth) s 23
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 10.10, 10.11
Cases cited: Accurate Financial v Koko Black (2008) 66 ACSR 325
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Ashton and Ashton (1986) FLC 91-777
B Pty Ltd v K (2008) FLC 93-380
Baba v Sheehan [2021] NSWCA 58
Barrett & Winnie (2022) FLC 94-093
Bevan & Bevan (2103) FLC 93-545
Bonnici & Bonnici (1992) FLC 92-272
Davidson v Davidson (1991) 8 Leg Rep SL 1
Davidson and Davidson (No 2) (1991) FLC 92-197
Dovgan & Dovgan [2021] FamCA 306
Duff and Duff (1977) FLC 90-217
Eclairs Group Ltd v JKX & Gas Plc [2015] UKSC 71
Essex & Essex (2009) FLC 93-423
Goldsmith & Stinson (2019) FLC 93-930
Goodwin & Goodwin (1991) FLC 92-192
Harris & Caladine (1991) FLC 92-217
Harris & Dewell (2018) FLC 93-839
Harris & Harris (1991) FLC 92-254
Hickey & Hickey (2003) FLC 93-143
Ho v Grigor (2006) 151 FCR 236
JEL v DDF (2001) FLC 93-075
Kelly & Kelly (No 2) (1981) FLC 91-108
Kennon & Spry (2008) 238 CLR 366
Mantel & Mantel [2020] FamCA 157
Martin & Newton (2011) FLC 93-490
Milankov & Milankov (2002) FLC 93-095
Mills v Mills (1938) 60 CLR 150
Montevento Holdings Pty Ltd v Scaffidi (2012) 246 CLR 325
Ogden & Ogden (2010) 245 FLR 1
Owies v JJE Nominees Pty Ltd [2022] VSCA 142
Pittman & Pittman (2010) FLC 93-430
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- AGLC
- Caldwell & Caldwell [2025] FedCFamC1F 506
- Case
- [2025] FedCFamC1F 506
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the trusts and/or trust assets were property of the marriage or either party within the meaning of the Family Law Act. This involved examining whether the trusts were a sham or an alter ego of the husband, the wife's status as an excluded beneficiary, the contribution of the parties' labours or assets to the trusts, and the existence of significant wealth outside the trusts. The court also had to consider whether the assets of the trusts were a financial resource of the husband for the purposes of section 79.
After considering the evidence and arguments, the court decided that the trusts and/or trust assets were not property within the meaning of section 79 of the Family Law Act. The court dismissed the wife's application for a declaration, and reserved the question of the parties' costs for a later determination. The matter was listed for a case management hearing. The court also allowed all parties and practitioners to appear at the hearing via Microsoft Teams video.
Orders
Orders of the court
1. Paragraph 2A of the Further Amended Initiating Application filed on 28 October 2024 is dismissed.
2. The question of the parties’ costs of and incidental to an Application in a Proceeding filed on 4 April 2025 and the appearance on 20 November 2024 are reserved to the trial judge.
3. The matter is listed for a case management hearing before Judicial Registrar Brooks on 5 August 2025 at 11.00 am.
4. All parties and practitioners have leave to appear at the case management hearing before Judicial Registrar Brooks via Microsoft Teams video.
NOTATIONS:
A. There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
B. The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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