FAMILY COURT OF AUSTRALIA
| HARRIS & DEWELL AND ANOR | [2018] FamCAFC 94 |
| FAMILY LAW – APPEAL – CROSS-APPEAL – PROPERTY – Whether the unit trust was the husband’s “puppet” or “creature” – Where the husband did not ostensibly control or hold any interest in the unit trust – Whether the property of the unit trust should be treated as property of the husband by reason of the extent, manner and history of the husband making decisions directly affecting the unit trust and his dealings with its property – Where the primary judge accepted that the husband exercised control over the unit trust – Where the primary judge concluded that nevertheless the husband did not have a “lawful right to benefit from the assets of the trust” in the sense described by Finn J in Stephens and Stephens (2007) FLC 93-336 – Where there was no error in the primary judge’s conclusion – Where control is not sufficient of itself – Where what is required is control over a person or entity who, by reason of the powers contained in the trust deed can obtain, or effect the obtaining of, a beneficial interest in the property of the trust – Whether the primary judge failed to take into account the consequences of the husband’s significant non-disclosure in any meaningful way – Whether funds given to the husband by his father should have been characterised as compensation for work done rather than a gift simpliciter – Whether the primary judge erred in assessing the contributions of the husband and wife – Whether the s 75(2) adjustment was “manifestly excessive” – Whether the primary judge failed to allow the husband sufficient time to adduce evidence as to any potential CGT liability – No appealable error established – Appeal and cross-appeal dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the evidence sought to be adduced was a codicil to the second cross-respondent’s last will and testament and a letter of demand requiring repayment of the second cross-respondent’s loan account with the unit trust – Where the evidence post-dated the trial – Where the evidence was inadmissible and consisted of conclusions and argument as opposed to facts – Where the evidence did not demonstrate any error by the primary judge – Application dismissed. |
| Corporations Act 2001 (Cth) Family Law Act 1975 (Cth) ss 4, 75(2), 79, 85A and 93A Family Law (Superannuation) Regulations 2001 (Cth) |
| Anson & Meek (2017) FLC 93-816; [2017] FamCAFC 257 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1 Ashton and Ashton (1986) FLC 91-777; [1986] FamCA 20 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Davidson and Davidson (1991) FLC 92-197 Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 Duff and Duff (1977) FLC 90-217; [1977] FamCA 24 Fields & Smith (2015) FLC 93-638; [2015] FamCAFC 57 Goodwin and Goodwin Alpe (1991) FLC 92-192; [1990] FamCA 147 Gosper and Gosper (1987) FLC… |
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- AGLC
- Harris & Dewell and Anor [2018] FamCAFC 94
- Case
- [2018] FamCAFC 94
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the interpretation of control over a trust and its implications for property division in family law. Specifically, the court had to determine if the husband's control over the unit trust was sufficient to treat the trust's property as his own, despite the lack of formal ownership. The court also scrutinized whether the primary judge correctly evaluated the husband's non-disclosure, the nature of the funds received from his father, and the primary judge's assessment of the contributions made by both parties. Furthermore, the court considered if the adjustment under section 75(2) was excessive and whether the primary judge allowed the husband adequate opportunity to present evidence regarding potential capital gains tax liabilities. The court found no appealable error in the primary judge's decisions and concluded that the husband did not have a lawful right to benefit from the trust's assets.
In its reasoning, the court emphasized that control over a trust is not inherently determinative of beneficial ownership unless it results in a right to benefit from the trust's assets. The court found no error in the primary judge's acceptance of the husband's control over the unit trust but concluded that this control did not translate to a lawful right to benefit. The court also noted that the husband's significant non-disclosure was adequately considered by the primary judge, and there was no basis to conclude that the primary judge mischaracterized the funds from the husband's father. Regarding the contributions, the court found no error in the primary judge's assessment. Finally, the court determined that the section 75(2) adjustment was not manifestly excessive and that the husband had sufficient opportunity to present evidence regarding potential capital gains tax liabilities. The application to introduce further evidence post-trial was dismissed as the evidence was deemed inadmissible and irrelevant to the issues already decided.
The court dismissed the appeal, the cross-appeal, and the application to adduce further evidence. It ordered the parties to file and serve written submissions regarding the costs of the appeal and cross-appeal within specified timeframes. The form of the order was subject to formal entry in the court's records.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
The Application in an Appeal dated 5 October 2017 seeking to adduce further evidence by the second cross-respondent in the cross-appeal be dismissed.
3.
The cross-appeal be dismissed.
4.
Each of the parties to the appeal and cross-appeal shall file with the Appeals Registrar and thereafter serve on each other party:
(a) any written submissions each seeks to make as to the costs of and incidental to the appeal and the cross-appeal within twenty-eight (28) days of the date of these orders; and
(b) any reply submissions to the said submissions within fourteen (14) days after service upon them of those submissions.
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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