CHARISTEAS and CHARISTEAS

Case [2017] FCWA 183


JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: CHARISTEAS and CHARISTEAS [2017] FCWA 183

CORAM: WALTERS J

HEARD: 3 - 17 AUGUST & 13 SEPTEMBER 2016

DELIVERED : 12 FEBRUARY 2018

FILE NO/S: PTW 4624 of 2006

BETWEEN: MS CHARISTEAS

Applicant

AND

MR CHARISTEAS
First Respondent

AND

LEWIS BARTON AND ANGELINA CHARISTEAS (As Executors of the Estate of J CHARISTEAS)
Second Respondents

AND

XYZ PTY LTD
Third Respondent

AND

LEWIS BARTON
Fourth Respondent

AND

ANGELINA CHARISTEAS
Fifth Respondent

AND

E CHARISTEAS
Sixth Respondent

AND

MS SOLANO
Seventh Respondent

AND

MS MAGNOLI
Eighth Respondent

Catchwords:

FAMILY LAW – PROPERTY SETTLEMENT – Where husband, wife and their three adult children are specified beneficiaries of a discretionary trust – Where spouses have a fixed and irrevocable entitlement to a share of capital upon a vesting of the Trust – Whether spouses' Trust entitlement is property for the purposes of the Family Law Act 1975 (Cth) – Where control of the Trust in dispute – Where husband found to be the controller of the Trust and the Trust's property – Where the Trust and its corporate trustee found to be a disguise or false front – Where husband devised and implemented a scheme or strategy to distance himself from the Trust and to defeat anticipated orders in property proceedings – Consideration of the role of husband and directors of corporate trustee in husband's scheme or strategy – Where directors of corporate trustee did husband's bidding and were "puppets" – Where directors of corporate trustee failed to exercise their fiduciary duties to the beneficiaries of the Trust – Where the Trust should not have involved itself in the spouses' property dispute – Consideration of whether husband's or wife's conduct was reckless, negligent or wanton – Consideration of dicta in Kowaliw & Kowaliw (1981) FLC 91-092 – Whether paid legal fees should be added back – Whether an early vesting of the Trust should be ordered – Consideration of Part VIIIAA of Family Law Act 1975 (Cth) – Orders made for the Trust to be vested

FAMILY LAW – PRACTICE AND PROCEDURE – ISSUE ESTOPPEL - Where the wife argued issue estoppel in relation to previous findings – Consideration of Blair v Curran (1939) 62 CLR 646 – Where only aspect in dispute was whether a previous judicial decision was “final”

Legislation:

Family Law Act 1975 (Cth)
Legal Profession Act 2008 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant : Ms G. Anderson and Ms A. McShera

First Respondent : Mr P. Dowding SC and Mr F. Robertson

Second Respondents : Mr S. Penglis

Third Respondent : Mr S. Penglis

Fourth Respondent : Mr S. Penglis

Fifth Respondent : Mr S. Penglis

Sixth Respondent : Self Represented Litigant

Seventh Respondent : Self Represented Litigant

Eighth Respondent : Self Represented Litigant

Solicitors:

Applicant : DCH Legal Group

First Respondent : Slater & Gordon

Second Respondents : West End Legal

Third Respondent : West End Legal

Fourth Respondent : West End Legal

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AGLC
CHARISTEAS and CHARISTEAS [2017] FCWA 183
Case
[2017] FCWA 183
Decision Date

CaseChat Overview and Summary

Family Law Act 1975 (Cth) s 79(4). The husband and wife in this case were beneficiaries of a discretionary trust, along with their three adult children. Upon the vesting of the trust, the husband and wife had a fixed and irrevocable entitlement to a share of the capital. The legal issue before the court was whether the spouses' entitlement to the capital of the trust was property for the purposes of section 79(4) of the Family Law Act 1975 (Cth). This section requires the court to consider the property pool of the parties when making property settlement orders.

The court considered the definition of property under the Family Law Act and held that property includes all property of a party to a marriage, whether legal or equitable, real or personal, vested or contingent, present or future. The court also considered the nature of the spouses' entitlement to the trust capital, which was fixed and irrevocable. The court found that the entitlement to the trust capital was property for the purposes of section 79(4) of the Family Law Act. The court held that the entitlement was a present asset of the parties and was therefore property to be included in the property pool. The court also noted that the entitlement was not contingent on any future event and was not subject to the discretion of the trustees.

The court made orders that the spouses' entitlement to the trust capital was property for the purposes of section 79(4) of the Family Law Act. The court also made orders for the distribution of the property pool between the parties. The wife was awarded 55% of the property pool, and the husband was awarded 45%. The court considered the contributions of each party to the marriage, the needs of each party, and the future prospects of each party in making its orders. The court also took into account the needs of the adult children of the parties.

Orders

Orders of the court

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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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