Keach & Keach

Case [2011] FamCA 192


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

In *Keach & Keach*, Strickland J of the Family Court of Australia considered a dispute between a husband and wife concerning the division of their property, spousal maintenance, and child support. The central property dispute involved whether assets held within a trust, of which the husband was a potential beneficiary, should be included in the asset pool for division, or if the trust was a sham and the husband was the true owner of its assets. The wife also sought "add backs" to the asset pool.

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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