Kennon v Spry Decision: Key Points
First, discretionary trust assets can be included in the property pool where a party has effective control over the trust and can benefit from it, either directly or indirectly. The Kennon v Spry decision established this principle, which has been consistently applied in subsequent cases.
Second, the court has broad powers to set aside transactions designed to defeat property settlement claims under section 106B of the Family Law Act. Attempting to restructure trusts around separation is likely to be counterproductive and may result in adverse findings.
Third, even where trust assets are not directly included in the property pool, they may still be relevant as a ‘financial resource’ that influences the overall division of property between the parties.
Fourth, the Family Law Amendment Act 2024 has codified and enhanced the court’s approach to property settlements, including giving greater recognition to the economic impact of family violence and clarifying the process for determining property division.
Fifth, and most importantly, family law mediation offers substantial advantages over litigation for resolving disputes involving family trusts. The cost savings, speed, confidentiality, flexibility, and preservation of relationships make mediation the clear choice for most separating couples.
Kennon v Spry: Overview
When couples separate, dividing assets can be one of the most challenging and contentious aspects of the process. This complexity increases significantly when discretionary family trusts are involved. For decades, many Australians believed that placing assets in a family trust would shield them from property settlement claims in the event of relationship breakdown. However, the landmark High Court decision in Kennon v Spry (2008) fundamentally changed this understanding, establishing that trust assets can, in certain circumstances, be treated as property available for division between separating spouses.
This article provides a comprehensive analysis of the Kennon v Spry decision, its ongoing relevance to current family law practice, and critically, why mediation represents the most effective pathway for resolving property disputes involving family trusts. Given the complexity of trust structures and the nuanced legal principles established by this case, parties facing such disputes have much to gain from choosing mediation over litigation.
The Parties and the Trust Structure
Dr Ian Charles Fowell Spry QC, a retired Victorian barrister, married Helen Marie Spry in 1978. During their marriage, they had four daughters. In 1968, ten years before his marriage, Dr Spry had established a discretionary trust known as the ICF Spry Trust, with himself as both settlor and trustee. The trust was initially created by parol (oral agreement) and was later formalised in a written deed in 1981.
The eligible beneficiaries of the trust included Dr Spry himself, any spouse of Dr Spry, and the issue of Dr Spry, as well as his siblings, their spouses, and their issue. This broad class of beneficiaries is typical of family discretionary trusts, which are commonly used in Australia for tax planning, asset protection, and wealth management purposes.
Critical Trust Variations
In 1983, Dr Spry executed a deed of variation that excluded himself as a beneficiary of the trust. Importantly, this variation appointed Mrs Spry as trustee in the event of his death or resignation. At this time, Mrs Spry remained a potential beneficiary under the trust’s terms.
The situation changed dramatically in December 1998, when the marriage was experiencing difficulties. At this point, Dr Spry executed a further variation that excluded both himself and his wife as capital beneficiaries of the trust. The primary judge later found that these changes were made without notice to Mrs Spry and at a time when the marriage was already in difficulty.
The parties separated in October 2001. Following their separation, in January 2002, Dr Spry established four separate trusts, one for each of their daughters, and distributed the capital and income of the original trust between these new trusts in equal shares. These actions effectively transferred the family wealth away from any potential claim by Mrs Spry.
The Legal Proceedings
In May 2002, Mrs Spry applied to the Family Court seeking orders that her husband pay her fifty percent of the assets held in their individual or joint names, in the Trust, or in the children’s trusts. She also sought orders under section 106B(1) of the Family Law Act 1975 (Cth) to set aside the 1998 variation and the 2002 distributions.
At first instance, Justice Strickland set aside the 1998 variation and the 2002 distributions under section 106B(1). His Honour found that Dr Spry sufficiently controlled the trust such that, after setting aside these transactions, the trust assets could be treated as his property. Including the value of the trust assets in the divisible pool, his Honour awarded 52 percent to the husband and 48 percent to the wife, ordering Dr Spry to pay Mrs Spry approximately $2.18 million.
The matter proceeded through the Full Court of the Family Court (which dismissed the husband’s appeal by majority) and ultimately to the High Court of Australia, where the decision became a watershed moment in Australian family law.
The Key Legal Questions
The High Court was asked to determine several fundamental questions about the intersection of trust law and family law. These included whether the assets of a wholly discretionary trust could be treated as property capable of being subject to an order under section 79 of the Family Law Act, and whether the variations to the trust deed were made with the intention of defeating a property settlement claim.
The Majority Reasoning
Chief Justice French, writing for the majority, held that the trust assets could be treated as property of the parties to the marriage. His Honour emphasised that the word ‘property’ in section 79 should be read widely and in a manner consistent with the purposes of the Family Law Act.
The Chief Justice identified the relevant property as the trust assets, coupled with the trustee’s power (prior to the 1998 instrument) to appoint them to Mrs Spry, and her equitable right to due consideration as a beneficiary. His Honour reasoned that the combination of Dr Spry’s discretionary power of distribution as trustee, together with Mrs Spry’s standing as an eligible beneficiary, meant that at Dr Spry’s discretion, all the trust assets could be made assets of a party to the marriage.
Justices Gummow and Hayne emphasised that the term ‘property of the parties to the marriage or either of them’ should be broadly understood and read in a fashion that advances rather than constrains the subject, scope, and purpose of the legislation. Their Honours identified three intertwined circumstances that justified including the trust assets in the property pool: firstly, that Mrs Spry, as a beneficiary, had a right to due administration of the trust; secondly, that Dr Spry, as trustee, had a fiduciary duty to consider whether and in what way his powers should be exercised; and thirdly, that during the marriage, Dr Spry could have appointed the whole of the trust fund to Mrs Spry.
Justice Kiefel’s Reasoning on Section 85A
Justice Kiefel’s judgment provided an alternative basis for the orders, relying on section 85A of the Family Law Act, which deals with ante-nuptial and post-nuptial settlements. Her Honour found that each disposition of property to the trust after the marriage could be regarded as a separate ‘settlement’ within the meaning of section 85A, and that the necessary ‘nuptial’ element was present because the trust was used to hold property for the benefit of the parties to the marriage.
Justice Heydon’s Dissent
Justice Heydon dissented, arguing that the trust assets should not be considered property of the parties to the marriage. His Honour expressed concern that extending the definition of property in this manner would have far-reaching consequences for the administration of discretionary trusts and third-party interests. Despite this dissent, the majority decision established binding precedent that continues to shape family law practice today.
The Principles Established by Kennon v Spry
The Kennon v Spry decision established that two key factors will determine whether discretionary trust assets can be included in the property pool: control and benefit. Where one spouse exercises effective control over a trust (whether as trustee, appointor, or through some other mechanism) and where either or both spouses can benefit from the trust, the assets may be treated as property available for division.
Subsequent cases have confirmed and refined this approach. For trust assets to be included in the property pool, courts will examine who has the power to appoint or remove trustees, the history of distributions from the trust, whether the trust was established during the relationship, any recent changes to the trust structure, and the relationship between key individuals in the trust structure.
Section 106B: Setting Aside Transactions
The case powerfully demonstrated the court’s ability to use section 106B of the Family Law Act to set aside transactions made with the intention of defeating an anticipated property settlement order. Where a party makes changes to a trust structure around the time of separation, the court will scrutinise these carefully and may reverse them if they appear designed to reduce the asset pool available for division.
Trust Assets as Financial Resources
Even where trust assets cannot be directly included in the property pool, they may still be relevant as a ‘financial resource’ under section 75(2) of the Family Law Act (now section 79(5) following the 2024 amendments). This means that a party’s interest as a beneficiary of a discretionary trust, even where they lack control, can influence the overall property division. The court may adjust the percentage split in recognition that one party will have access to ongoing financial support from a trust.
Current Legal Framework: Family Law Amendment Act 2024
It is essential to understand that the principles established in Kennon v Spry remain foundational to current family law practice, even following significant legislative amendments. The Family Law Amendment Act 2024, which took effect on 10 June 2025, introduced substantial changes to how property settlements are determined under the Family Law Act 1975.
The 2024 amendments codify the approach to decision-making in property settlements, including expressly recognising the concept of ‘liabilities’ and providing a clearer framework for assessing contributions and future needs. New section 79(3) now requires courts to identify the existing legal and equitable rights and interests in property of the parties, and any existing liabilities of the parties. The amendments also give greater recognition to the economic impact of family violence in property settlements.
Importantly, the new section 79(5) consolidates various considerations relating to current and future circumstances, including factors such as family violence, wastage, liabilities, and housing needs of children under 18. These provisions work alongside the established principles from Kennon v Spry to determine how trust assets should be treated in property settlements.
The court’s powers under sections 79 and 80, section 106B (transactions to defeat claims), section 114 (injunctions), and Part VIIIAA (orders binding third parties) remain available tools for dealing with trust structures in property settlements. The fundamental question of control and benefit established in Kennon v Spry continues to guide the court’s approach.
Post-Kennon v Spry: Developments in Case Law
Barrett & Winnie (2022)
The Full Court of the Federal Circuit and Family Court in Barrett & Winnie [2022] FedCFamC1A 99 provided important clarification on when trust assets will be excluded from the asset pool. In this case, the wife had an interest in four relevant trusts. The husband contended that the assets of each of those trusts ought to be included in the asset pool. The Full Court distinguished the case from Kennon v Spry, noting that in the earlier High Court case, the husband and wife had exclusively made contributions to the trust assets, and the husband had a much greater degree of control over the trust.
This decision confirms that each case turns on its own facts. Ultimately, the less control you have over a trust and the greater the contributions made by third parties to the trust assets, the better the chances of keeping trust assets out of the asset pool available for division.
Harris v Dewell (2018)
In Harris v Dewell [2018] FamCAFC 94, trust assets were held in the husband’s family trust, which was controlled by his parents. The court found no evidence of control by the husband and excluded the trust assets from the property pool. However, the court noted that the trust assets remained relevant as a financial resource that could influence the overall property settlement. This case illustrates that lack of control can keep trust assets out of the property pool, but they may still impact the settlement as a resource available to one party.
Stein & Stein (1986)
The approach in Kennon v Spry was consistent with earlier Full Court decisions. In Stein & Stein [1986] FamCA 27, the Full Court held that it is not open to a party to assert on the one hand that assets acquired in a family trust are not theirs, while at the same time dealing with them as if they are. The court observed that frequently spouses, usually husbands, come to the court asserting that assets placed in the wife’s name do not really belong to her but to the husband, having been placed there for taxation purposes, while simultaneously asserting that assets standing in the name of a third party, such as a trustee, do not really belong to the husband.
The Concept of Control
The concept of ‘control’ is central to determining whether trust assets will be included in the property pool. Courts will examine whether a party is the trustee or has de facto control over the trustee, whether a party is the appointor with power to remove and appoint trustees, the history of how the trust has been administered, whether the trustee acts independently or as a ‘puppet’ of one party, and whether distributions have been made at the direction or for the benefit of one party.
Where a party treats a discretionary trust as a personal bank account, regularly directing distributions and treating trust assets as their own, the court is more likely to include those assets in the property pool. Conversely, where a trust operates independently with genuine third-party involvement in decision-making, the assets may be excluded or treated only as a financial resource.
The Court’s Powers to Deal with Trusts
The Federal Circuit and Family Court of Australia has significant powers to deal with family trusts in the context of property settlements. Understanding these powers helps parties appreciate why attempting to shield assets through trust structures is often futile, and why mediation offers a more constructive path forward.
Section 79 and 90SM Orders
Sections 79 (for married couples) and 90SM (for de facto couples) of the Family Law Act empower the court to make orders altering the property interests of parties as it considers appropriate. The court must be satisfied that, in all the circumstances, it is just and equitable to make the order. These provisions provide the primary basis for including trust assets in property settlements where the requirements of control and benefit are established.
Section 80: General Powers
Section 80 of the Family Law Act provides the court with broad general powers, including the power to appoint or remove a trustee. This power can be exercised to facilitate the implementation of property settlement orders involving trust structures. The court may, for example, remove a party as trustee where this is necessary to give effect to the property settlement.
Section 106B: Transactions to Defeat Claims
Section 106B allows the court to set aside transactions that were entered into with the intention of defeating an anticipated property settlement claim. This powerful provision was central to the Kennon v Spry decision. The court may set aside transfers of property into trusts, amendments to trust deeds that remove parties as beneficiaries, distributions from trusts that appear designed to reduce the asset pool, and any other transaction that appears intended to defeat a claim.
The timing of transactions is critical. Changes made to trust structures around the time of separation, or when marital difficulties become apparent, will be closely scrutinised. The court looks at the substance and purpose of transactions, not merely their legal form.
Section 114: Injunctions
Section 114 empowers the court to grant injunctions to protect a party’s interests pending the determination of property settlement proceedings. This can include injunctions preventing a party from dealing with trust assets, preventing amendments to trust deeds, or requiring a party to maintain the status quo until the matter is resolved. Injunctive relief can be obtained urgently where there is a risk of asset dissipation.
Part VIIIAA: Orders Binding Third Parties
Part VIIIAA of the Family Law Act allows the court to make orders and injunctions that bind third parties. This is particularly relevant where trust assets are held by a corporate trustee or where family members other than the parties hold key positions in the trust structure. The court can make orders requiring third parties to take actions necessary to implement the property settlement.
Why Mediation is the Preferred Pathway for Trust Disputes
Given the complexity of property settlements involving family trusts, mediation offers significant advantages over litigation. The Kennon v Spry decision, while providing important clarity on the law, also demonstrates the enormous costs, delays, and uncertainties involved in litigating trust disputes through the court system. The case progressed through the Family Court at first instance, the Full Court on appeal, and ultimately to the High Court of Australia—a process that consumed years and substantial legal costs for all parties.
Cost-Effectiveness
Litigation in family law matters is notoriously expensive. Complex property settlements involving trusts require detailed financial disclosure, expert valuations, and often forensic accounting evidence. Legal fees can quickly escalate into hundreds of thousands of dollars when matters proceed to trial. Research consistently shows that most people who litigate family law disputes are ultimately dissatisfied with the results, regardless of outcome, largely because of the financial toll.
Mediation, by contrast, offers a dramatically more cost-effective pathway. A typical mediation can be completed in a single day, with total costs often a fraction of what parties would spend on litigation. Where trust structures require expert input, this can be incorporated into the mediation process in a collaborative rather than adversarial manner, further reducing costs.
Preserving Relationships
Family trusts often involve relationships that extend beyond the separating couple. Parents, siblings, and other family members may be trustees, appointors, or beneficiaries. The adversarial nature of litigation can permanently damage these relationships, with long-lasting consequences for family dynamics and, importantly, for any children of the relationship.
Mediation provides a forum for respectful dialogue where parties can work together to find solutions that accommodate everyone’s interests. This collaborative approach helps preserve relationships that will continue to be important, particularly where children are involved or where family business interests require ongoing cooperation.
Confidentiality
Court proceedings are generally a matter of public record. For families with significant wealth or business interests held in trust structures, the prospect of having their financial affairs aired in open court can be deeply concerning. The Kennon v Spry case itself became a widely reported and discussed decision precisely because it reached the highest court in the land.
Mediation offers complete confidentiality. Discussions that take place during mediation are privileged and cannot be used as evidence in court if the parties fail to reach agreement. This confidentiality encourages frank and open communication, enabling parties to speak honestly about their needs, concerns, and desired outcomes without fear of repercussions.
Speed and Efficiency
The family law courts face significant backlogs, and matters involving complex trust structures often require multiple hearings and lengthy periods for evidence gathering. It is not uncommon for contested property matters to take several years from filing to final determination. This prolonged uncertainty creates ongoing stress for all parties and delays their ability to move forward with their lives.
Mediation can typically be arranged within weeks of the parties agreeing to participate. A skilled mediator can guide parties through the issues in a focused and efficient manner, often achieving resolution in a single day. Even complex matters involving trusts can be resolved in a matter of days rather than years.
Flexibility and Creative Solutions
Courts are constrained by the orders they can make under the Family Law Act. Mediation, by contrast, allows parties to craft creative solutions that meet their specific circumstances. Where trust structures are involved, this flexibility can be particularly valuable. Parties might agree to restructure the trust in ways that accommodate both their interests, establish new arrangements for distributions, or find innovative solutions that a court simply could not order.
For example, rather than requiring assets to be sold or transferred out of a trust (with potential tax consequences), parties might agree to arrangements regarding future distributions, appointment of trustees, or amendment of trust deeds in ways that protect both parties’ interests while preserving the trust structure.
Control Over Outcomes
When parties litigate, they hand over decision-making to a judge who knows relatively little about their specific circumstances, values, and priorities. Litigation is inherently uncertain—even the strongest case can produce unexpected results. The Kennon v Spry decision itself demonstrates this uncertainty, with Justice Heydon’s dissent showing that reasonable judicial minds can differ on how trust assets should be treated.
Mediation returns control to the parties themselves. With the assistance of a skilled mediator, parties can reach agreements that reflect their own priorities and circumstances. This sense of ownership over the outcome typically leads to greater satisfaction with the result and better compliance with agreed arrangements.
Reduced Emotional Toll
Separation and divorce are among life’s most stressful experiences. The adversarial nature of litigation exacerbates this stress, requiring parties to adopt hostile positions and attack each other’s credibility. This can be particularly damaging where children are involved, as parental conflict has well-documented negative effects on children’s wellbeing.
Mediation provides a more supportive environment. A skilled mediator creates a space for constructive dialogue, helping parties focus on their interests rather than their positions. This approach acknowledges the emotional dimensions of separation while keeping discussions focused on practical outcomes.
The Mediation Process for Trust Disputes
Effective mediation requires thorough preparation. Before entering mediation involving trust assets, parties should obtain comprehensive disclosure of all trust-related documents, including the trust deed, financial statements, records of distributions, minutes of trustee meetings, and any deeds of variation. Understanding the trust structure, who holds key roles (trustee, appointor, beneficiaries), and the history of the trust’s operation is essential.
Parties should obtain legal advice about their rights and likely outcomes if the matter were to proceed to court. This provides a realistic benchmark against which to evaluate settlement proposals. Where appropriate, expert valuations of trust assets should be obtained before mediation so that discussions can proceed on a shared understanding of values.
The Role of Legal Representatives
Having experienced legal representation in mediation involving trust structures is highly advisable. Family lawyers with expertise in trust matters can help parties understand the implications of the Kennon v Spry principles for their specific circumstances, evaluate settlement proposals, and ensure that any agreement reached is fair, legally effective, and enforceable.
Lawyers can also assist in developing negotiation strategies, identifying creative solutions, and helping clients understand the strengths and weaknesses of their position. Their presence ensures that any agreement properly addresses all relevant issues and can be effectively formalised.
Formalising Agreements
Agreements reached in mediation can be formalised as consent orders, which are filed with the court and have the same effect as court orders. Alternatively, parties may choose to enter into a Binding Financial Agreement under Part VIIIA of the Family Law Act. Both options provide legal certainty and finality.
Where trust restructuring forms part of the agreement, careful drafting is essential to ensure that all necessary changes can be implemented effectively. This may involve coordination with accountants and other advisors to address tax implications and ensure compliance with trust law requirements.
Expert Involvement in Mediation
Complex trust matters often benefit from expert involvement in the mediation process. Forensic accountants can assist in valuing trust assets, tracing contributions, and understanding the financial implications of different settlement options. Tax advisors can help parties understand the tax consequences of proposed arrangements. Business valuers may be needed where the trust holds business interests.
In mediation, experts can participate in a collaborative manner, providing joint advice to both parties rather than adversarial expert evidence. This approach is more efficient, less expensive, and often produces more useful outcomes. Parties can engage a single expert jointly, reducing costs and avoiding the ‘battle of experts’ that often occurs in litigation.
Practical Considerations for Parties
If you are involved in a separation where family trusts are a factor, obtaining early legal advice is crucial. Understanding how the principles established in Kennon v Spry might apply to your specific circumstances will inform your approach to negotiations and help you make informed decisions about how to proceed.
A family lawyer with experience in trust matters can analyse your role in the trust, review the trust deed, assess your level of control and potential benefit, and predict how a court might treat the trust assets if the matter were litigated. This provides a realistic benchmark against which to evaluate settlement proposals and negotiate effectively in mediation.
Avoiding Suspicious Conduct
One of the clearest lessons from Kennon v Spry is that attempts to restructure trusts around the time of separation are likely to be scrutinised closely and may be reversed by the court. Making changes to trust structures without proper advice, or in an attempt to place assets beyond a spouse’s reach, can backfire spectacularly. Not only may the changes be set aside, but such conduct can also adversely affect how the court exercises its discretion in the overall property settlement.
Red flags that the court will look for include sudden changes to beneficiaries or trustees around separation, transfers of property into a trust shortly before or after relationship breakdown, unusual loan arrangements between the trust and related parties, undervaluation of trust-held assets, and any move that appears designed to reduce the asset pool.
Full Disclosure
Parties to family law proceedings have a duty of full and frank disclosure. This extends to all interests in trusts, including roles as trustee, appointor, or beneficiary. Failure to disclose trust interests can have serious consequences, including the court drawing adverse inferences and making costs orders against the non-disclosing party. Full disclosure also builds trust and credibility in the mediation process, making settlement more likely.
Documents that should be disclosed include trust deeds and any deeds of variation, financial statements of the trust, records of distributions, minutes of trustee meetings, corporate records where the trustee is a company, and any correspondence relating to the operation of the trust.
Understanding Your Position
Before entering mediation, parties should have a clear understanding of their position in relation to any trust structures. Key questions to consider include what roles you hold in the trust (trustee, appointor, beneficiary, or controller of a corporate trustee), what distributions you have received from the trust during the relationship, what contributions you and your spouse have made to the trust, whether there have been any recent changes to the trust structure, and what the current value of trust assets is.
Understanding these matters allows you to assess the likely range of outcomes, develop realistic expectations, and negotiate effectively. Your legal representative can help you analyse this information and develop an appropriate strategy for mediation.
Tax and Structuring Considerations
Property settlements involving trusts often have significant tax implications that should be carefully considered. The way in which trust assets are dealt with can trigger capital gains tax, stamp duty, or other tax consequences. These considerations can significantly affect the value of different settlement options and should inform negotiations.
Mediation offers the opportunity to structure settlements in tax-efficient ways that might not be available through court orders. Parties can agree to arrangements that minimise the overall tax burden while achieving a fair division of property. This might include maintaining assets within the trust structure where appropriate, timing transfers to take advantage of exemptions or concessions, or structuring payments over time to manage tax consequences.
Professional advice from accountants and tax advisors should be obtained to understand the tax implications of different settlement options. This advice can be incorporated into the mediation process to ensure that parties reach agreements that are not only fair but also tax-effective.
When Mediation May Not Be Appropriate
While mediation offers significant advantages for most trust-related property disputes, there are circumstances where it may not be appropriate. These include situations involving family violence where the power imbalance makes genuine negotiation impossible, cases where one party refuses to provide proper disclosure or engages in asset hiding, urgent matters requiring immediate court intervention to prevent dissipation of assets, and situations where one party lacks the capacity to participate meaningfully in negotiations.
In such cases, court proceedings may be necessary to protect a party’s interests. However, even in contested matters, settlement through mediation remains possible at any stage, and most cases ultimately resolve before trial. The court itself may order parties to attend mediation or other forms of dispute resolution.
Where there are concerns about asset dissipation, urgent court applications for injunctions or asset preservation orders may be necessary before mediation can proceed. Once assets are protected, mediation can then occur in a more secure environment.
The Future of Trust Disputes in Family Law
The principles established in Kennon v Spry continue to evolve through ongoing case law. Courts have become increasingly sophisticated in their approach to trust structures, looking beyond legal form to examine the substance of arrangements. The 2024 amendments to the Family Law Act provide greater clarity about the process for determining property settlements and introduce new considerations that may be relevant to trust disputes.
For families with significant wealth held in trust structures, careful planning and professional advice are essential. Understanding how the law treats trust interests in family law proceedings allows for informed decision-making, whether establishing new structures or navigating separation. The key message from Kennon v Spry and subsequent cases is that substance matters more than form—trusts cannot simply be used to shield assets from legitimate claims.
For those facing property settlement disputes involving family trusts, mediation remains the preferred pathway to resolution. The benefits of mediation—cost savings, speed, confidentiality, flexibility, and preservation of relationships—are particularly significant in complex trust matters where litigation can be protracted and expensive.
Conclusion
The Kennon v Spry decision stands as a landmark in Australian family law, establishing that discretionary trust assets can be treated as property available for division in appropriate circumstances. The case shattered assumptions about trusts providing impenetrable asset protection in family law matters and emphasised the importance of control and benefit in determining how trust interests will be treated.
The principles established in Kennon v Spry remain central to current family law practice and have been preserved and built upon by the Family Law Amendment Act 2024. Courts continue to examine the substance of trust arrangements rather than merely their legal form, looking at who has effective control and who stands to benefit.
For separating couples dealing with family trust structures, mediation offers a clearly superior pathway to resolution. The cost savings, speed, confidentiality, flexibility, and reduced emotional toll of mediation make it the preferred choice for resolving these complex disputes. While litigation remains available when necessary, the vast majority of matters can and should be resolved through negotiated settlement.
The case law since Kennon v Spry confirms that family trusts are not automatically protected from property settlement claims. Whether trust assets are included in the pool depends on the specific facts of each case, particularly the degree of control exercised by one party and the potential for benefit. Understanding these principles is essential for anyone navigating a property settlement involving family trusts.
The advantages of mediation in this context cannot be overstated. The complexity of trust structures, the potential involvement of third parties, and the need for creative solutions all point to mediation as the most effective pathway. Parties who choose mediation retain control over outcomes, preserve important relationships, maintain confidentiality, and achieve resolution in a fraction of the time and cost of litigation.
At Mediations Australia, our team of experienced mediators and family lawyers understand the complexities of property settlements involving family trusts. We can help you navigate these challenging issues, achieve a fair resolution, and move forward with your life. If you are facing a property dispute involving a family trust, we encourage you to contact us to discuss how mediation can help you resolve your matter faster, better, and cheaper than traditional litigation.
Our philosophy is simple: we believe that the traditional way of resolving family disputes is broken. Our objective is to resolve your family law dispute cheaper, quicker, and more effectively than litigation. With our team of nationally accredited mediators and family lawyers, we can help you resolve your family law dispute anywhere in Australia.
Disclaimer: This article is for general information purposes only and is not a substitute for professional legal advice. The information contained herein reflects the law as at the date of publication and may not reflect subsequent legislative amendments or judicial decisions. Consult a qualified lawyer or mediator for personalised guidance about your specific circumstances.
