FAMILY COURT OF AUSTRALIA
| KEACH & KEACH AND ORS | [2011] FamCA 192 |
| FAMILY LAW - PROPERTY – Trust– where the husband is a potential beneficiary of a trust – whether the assets of the trust should be included in the asset pool – whether the trust is a “sham” and the husband is the true owner of the assets of the trust FAMILY LAW - PROPERTY – assets and liabilities to be included in the pool – add backs FAMILY LAW - PROPERTY SETTLEMENT – alteration of property interests – contributions – where the contributions of the husband and wife overall were equal – where an adjustment of 30 per cent in favour of the wife on account of s 75(2) factors is appropriate – net asset pool to be divided 80 per cent/20 per cent in favour of the wife – just and equitable – where the value of the assets that the wife would receive exceeds the value of the asset pool FAMILY LAW - SPOUSAL MAINTENANCE – application for spousal maintenance by the wife – where the wife has the capacity to obtain appropriate gainful employment but has chosen not to do so – where the husband cannot reasonably afford the amount sought by the wife FAMILY LAW - CHILD SUPPORT – where the wife seeks a departure order from an administrative assessment of child support and an order pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth) that the husband pay all of the costs of the children’s education – where no ground is established for a departure order – where there is no basis for an order to be made pursuant to s 124 |
| Family Law Act 1975 (Cth) ss 72, 74, 75 & 79 Child Support (Assessment) Act 1989 (Cth) s 117 & s 124 |
| A v A [2007] EWHC 99 (Fam) Ascot Investments v Harper (1991) 148 CLR 337 Baldwin & Baldwin [2010] FamCAFC 227 Chorn and Hopkins (2004) FLC 93-204 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 Essex & Essex (2009) FLC 93-243 Gollings and Scott (2007) FLC 93-319 Gould and Gould; Swire Investments Ltd (1993) FLC 92-434, In re Esteem Settlement [2003] JLR 188 JEL and DDF (2001) FLC 93-075 Marac Finance Ltd v Virtue [1981] 1 NZLR 586 Marker and Marker [1998] FamCA 42 Midland Bank PLC v Wyatt [1995] 1 FLR 696 Milankov and Milankov (2002) FLC 93-095 Official Assignee in Bankruptcy in the Property of Reynolds v Wilson and Harvey and Anor [2008] NZCA 122 Omacini and Omacini (2005) FLC 93-218 Phillips and Phillips (2002) FLC 93-104 Raftland Pty Ltd as Trustee of the Raftland Trust v Commissioner of Taxation (2008) 246 ALR 406 Shalson and Russo [2005] Ch 281 Sharrment Pty Ltd v The Official Trustee in Bankruptcy (1988) 82 ALR 530 Snook v London and West Riding Investments Ltd [1967] All ER 518 Turnbull and Turnbull (1991) FLC 92-258 Walters and Walters (1986) FLC 91-733 Waters and Jurek |
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- AGLC
- Keach & Keach [2011] FamCA 192
- Case
- [2011] FamCA 192
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues. Firstly, it had to ascertain whether the trust assets should be included in the matrimonial asset pool, which necessitated an examination of whether the trust was a sham. Secondly, the court needed to decide on the appropriate inclusion of "add backs" in the asset pool. Thirdly, the court was tasked with determining the just and equitable division of the net asset pool, considering the parties' contributions and relevant section 75(2) factors of the *Family Law Act 1975* (Cth). Finally, the court had to consider the wife's applications for spousal maintenance and for a departure from the administrative assessment of child support, including an order for the husband to pay all of the children's education costs.
Strickland J reasoned that the contributions of the husband and wife overall were equal. However, an adjustment of 30 per cent in favour of the wife was deemed appropriate under section 75(2) factors. This led to a proposed division of the net asset pool at 80 per cent to the wife and 20 per cent to the husband. Regarding spousal maintenance, the court found that the wife had the capacity to obtain gainful employment but had chosen not to, and the husband could not reasonably afford the amount sought. For child support, no grounds were established for a departure order from the administrative assessment, nor was there a basis for an order under section 124 of the *Child Support (Assessment) Act 1989* (Cth) for the husband to pay all educational costs.
The matter was adjourned for further consideration and, if possible, for the making of final orders.
Orders
Orders of the court
1.
This matter be adjourned for further consideration and if possible for the making of final orders to 9:00am on Thursday 17 March 2011.
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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