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

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 CHARISTEAS and CHARISTEAS

Details

AGLC: CHARISTEAS and CHARISTEAS [2017] FCWA 183
Case: [2017] FCWA 183
Decision Date: 12 FEBRUARY 2018

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