Kawada & Kawada

In this family law matter before O’Reilly J, the parties were Ms Kawada (the wife) and Mr Kawada (the husband), and the dispute concerned the beneficial ownership of real property, a sum of cash, and a motor vehicle. The wife sought to have these assets declared as property of the marriage, while the husband contended they were held on a resulting trust for his father and/or parents. The central issue was whether the presumption of advancement, which typically applies to property purchased by a husband in a wife's or child's name, was rebutted in favour of a resulting trust for the husband's parents.

The court was required to determine the beneficial ownership of the real property, the cash sum, and the motor vehicle. Specifically, it needed to ascertain whether these assets belonged to the matrimonial pool or were held by the husband on a resulting trust for his parents, thereby rebutting the presumption of advancement. The court also considered the relevance of pooling superannuation interests and the application of section 75(2) factors of the *Family Law Act 1975* (Cth) for any adjustment to the wife.

O’Reilly J applied established legal principles regarding resulting trusts and the presumption of advancement. The court referred to *Russell v Scott* and *Charles Marshall Pty Ltd v Grimsley*, which affirmed that while a purchase in a child's or wife's name is presumed to be an advancement, this presumption can be rebutted by surrounding circumstances indicating a trust was intended. The court found, on the evidence presented, that a resulting trust applied to each of the disputed items, and the presumption of advancement was rebutted. The court also noted that a splitting order for superannuation was sought after trial without notice to the trustee, which was inconsistent with section 90MZD of the Act, and therefore stood the matter over to allow for procedural fairness to the trustee.

The court declared that the real property, the AUD190,000 cash sum, and the motor vehicle were held by the husband by way of a resulting trust beneficially for T Kawada and M Kawada. The wife was ordered to remove a caveat lodged against the property, with a Registrar appointed to effect removal if necessary. The applications for a section 79 order were stood over pending the wife's solicitors providing procedural fairness to the husband's superannuation trustee and filing evidence of the trustee's response. The matter was relisted for a section 79 order to be made in accordance with the judgment.