Stephens & Stephens and Ors

[2005] FamCA 1181

[2005] FamCA 1181

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE  No MLF 2847 of 2002

IN THE MATTER OF:      

MS STEPHENS

(Applicant Wife)
  AND

MR STEPHENS

(Respondent Husband)

AND

[THE HUSBAND] AND

MR J

(As Trustees of the W STEPHENS TRUST, the X STEPHENS TRUST, the Y STEPHENS TRUST and the Z STEPHENS TRUST)
  (First Interveners)

AND
  W STEPHENS
  (Second Intervener)
  AND
  X STEPHENS
  (Third Intervener)
  AND
  Y STEPHENS
  (Fourth Intervener)
  AND
  Z STEPHENS
  (By Z’s next friend […])  (Fifth Intervener)

CORAM:  THE HONOURABLE JUSTICE STRICKLAND

DATE/S OF HEARING:     1 – 4 August 2005, 31 August 2005

DATE OF REASONS:        30 November 2005

JUDGMENT

APPEARANCES:   Mr Ackman QC with Ms Macmillan appeared as counsel (instructed by Kennedy Wisewoulds Solicitors) on behalf of the applicant wife

Mr North SC appeared as counsel (instructed by Nedovic & Co Solicitors) on behalf of the respondent husband

Mr Kirkham QC appeared as counsel (instructed by [the husband] and [Mr J] (As Trustees of the W Stephens Trust, the X Stephens Trust, the Y Stephens Trust and the Z Stephens Trust)) on behalf of the first interveners

Ms Molyneux QC appeared as counsel (instructed by Marshalls & Dent Solicitors) on behalf of the second to fifth interveners

FAMILY LAW - PROPERTY SETTLEMENT – Family Trust – Wife seeks to set aside pursuant to s106B trust variation instruments which exclude the husband from the capital of the fund and dispositions of shares worth $500,000 and trust property worth $4.7million by the husband – alternatively wife seeks to notionally add back shares and trust property to the pool – alternatively wife seeks to treat trust assets as a financial resource of the husband taken into account under s75(2) – husband is appointer and trustee of the trust – assets of the trust can be treated as the property of the husband or his financial resource – Part VIIIAA cannot be applied as the requirements of s90AE have not been satisfied – trust variations may be set aside pursuant to s106B – alternatively Townsend principles applicable to the husband’s distribution of assets – husband’s contributions outweigh the wife’s due to his substantial initial contribution – no s75(2) adjustment, wife’s care of the youngest child offset by her greater income and earning capacity – total pool $9.8million –order 52%/48% division in favour of the husband – orders do not cause a breach of trust or fraud on power – set aside the disposition of trust property and the variation to the trust instrument excluding the husband from the capital of the fund.

Family Law Act 1975 (Cth) ss 75(2), 106B

Kowaliw and Kowaliw (1981) FLC 91-092
Townsend and Townsend (1995) FLC 92-569
Coventry and Coventry and Smith (2004) FLC 93-184
Plugradt and Plugradt (1981) FLC 91-052 at 76,429-76,430
Ascot Investments Pty Ltd v Harper (1981) FLC 91-000
Gould and Gould; Swire Investments Ltd (1993) FLC 92-434
Davidson and Davidson (1991) FLC 92-197
Ashton and Ashton (1986) FLC 91-777