Spellson v Spellson

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, James Thomas Spellson, sought leave to appeal against a decision of the Full Court of the Family Court of Australia. The primary respondent was Diane Spellson, the applicant's former wife, and the secondary respondents were the trustees of two trusts, the Thomas George Settlement and the Sir Arthur George Family Trust, who had intervened in the proceedings below. The dispute concerned an outstanding property claim between the former spouses, with the trustees of the trusts seeking to be joined as respondents to the property settlement application.

The central legal issue before the High Court was whether the Sir Arthur George Family Trust was, or might be, considered a marriage settlement within the meaning of section 85A of the *Family Law Act*. Mr Justice Nygh of the Family Court had previously held that the Thomas George Settlement was a marriage settlement, a finding not appealed. However, he had determined that the Sir Arthur George Family Trust was not a marriage settlement. The applicant appealed this latter finding to the Full Court of the Family Court, and now sought special leave to appeal to the High Court.

The applicant's argument for special leave centred on the determination of whether the Sir Arthur George Family Trust qualified as a marriage settlement under section 85A. The applicant contended that this question remained live and justified the grant of special leave, particularly as the parties were at an early stage of property settlement proceedings under section 79 of the *Family Law Act*. The applicant's submissions highlighted that a constitutional issue regarding legislative power relating to section 85A had initially arisen, though Mr Justice Nygh had not ultimately considered it. The applicant sought to argue that the Sir Arthur George Family Trust could potentially be a marriage settlement.