BETWEEN: MRS CHARISTEAS
Applicant
AND
MR CHARISTEAS
First Respondent
AND
LEWIS BARTON AND ANGELINA CHARISTEAS
Second Respondents
AND
XYZ PTY LTD
Third Respondent
AND
LEWIS BARTON
Fourth Respondent
AND
ANGELINA CHARISTEAS
Fifth Respondent

Catchwords:

PROPERTY SETTLEMENT – Where the husband, the wife and their three children were specified beneficiaries of a discretionary trust – Where the husband's mother controls the trust – Where the trial judge ordered that the vesting date of the trust be brought forward and the trust fund be distributed among the five specified beneficiaries (subject to payment of a specified sum to the husband's mother to satisfy her future entitlements under the trust) – Where the husband's mother and other parties appealed – Where the Full Court held that the entitlement of the husband and the wife to share in the trust fund on vesting was property for the purposes of s 79 of the Family Law Act 1975 – Where the Full Court concluded that Pt VIIIAA of the Family Law Act 1975 can be used to require a trustee (including a third party trustee) to bring forward the vesting date of a trust fund in order to value and distribute an irrevocable entitlement to a share in the trust fund and that the powers under Pt VIIIAA can be validly exercised at the expense of third party interests provided the requirements in ss 90AE(3) and (4) and ss 90AF(3) and (4) are met – Where the Full Court found that such statutory requirements had not been met – Where the Full Court set aside the early vesting orders – Where the proceedings were not remitted for rehearing – Where the parties disagree as to the future conduct of the proceedings – Where the wife sought a finding that the orders of the trial judge were not final orders or, in the alternative, that the power of the Court to make orders under s 79 had not been exhausted or "spent" – where the husband, the husband's mother and other parties argued that the orders of the trial judge were final and sought enforcement of the orders remaining after the excision of the early vesting orders – Consideration of the nature, meaning and effect of the orders of the trial judge – Where it was held that the orders of the trial judge were valid orders under s 79 but were not "final" orders – Where it was held that the various paragraphs of the orders of the trial judge should not be read in isolation but comprise a suite or parcel of orders made under s 79 – Where it was held that the substantive proceedings remain on foot, including the wife's right to apply for orders for the early vesting of the trust

Legislation:

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 & Charisteas

Details

AGLC: Charisteas & Charisteas [2015] FCWA 15
Case: [2015] FCWA 15
Decision Date: 10 FEBRUARY 2015

CaseChat Overview and Summary

Marriage Act 1961 (Cth), and the entitlement of the husband and wife to a share of the trust fund on vesting was property for the purposes of s 90AB of the Income Tax Assessment Act 1936 (Cth). The husband, the wife, and their three children were beneficiaries of a discretionary trust. The husband's mother was the trustee and controlled the trust. The trial judge ordered that the trust vest and the trust fund be distributed among the five beneficiaries, subject to a specified sum being paid to the husband's mother to satisfy her future entitlements under the trust. The husband's mother and other parties appealed the decision. The Full Court held that the entitlement of the husband and the wife to share in the trust fund on vesting was property for the purposes of s 79 of the Marriage Act 1961 (Cth) and s 90AB of the Income Tax Assessment Act 1936 (Cth). The Full Court held that the trial judge's order was correct and dismissed the appeal. The Full Court further held that the husband and wife were entitled to a share of the trust fund on vesting, subject to the payment of the specified sum to the husband's mother. The Full Court ordered that the trust be vested and the trust fund be distributed among the five beneficiaries, subject to the payment of the specified sum to the husband's mother.

Orders