Legal Insights
Cold Reality for Trust Assets in Family Law Proceedings – Special Leave Denied for Caldwell and Caldwell
On 10 September 2026, the High Court of Australia refused special leave to appeal the Federal and Family Court of Australia’s judgment of Caldwell and Caldwell [2026]. A disappointing outcome for parties using trust structures for asset protection.
Preserving Intergenerational Wealth Reconsidered: Key Implications of the Full Court’s Decision in Caldwell and Caldwell
Preserving intergenerational wealth is a key consideration when establishing trusts. However, the most recent decision in Caldwell and Caldwell [2026] FedCFamC1A 81 questions the strength of asset-protecting structures in family law proceedings.
Broad Powers, Unintended Consequences: Trustee's Authority to Remove Appointor Upheld
Appropriately considering the successive control of discretionary trusts, at both a trustee and an appointor level, is a critical component in succession planning. The recent Queensland Court of Appeal decision of Staley v Hill Family Holdings Pty Ltd highlighted this, after broad variation powers resulted in the removal of an appointor by a trustee which could have been avoided had the succession of the trust been properly addressed.
Review of Trustee's discretion: Marsella’s case gives some guidance
It is a longstanding general principle that where a trustee discloses reasons for the exercise of a discretion, the validity of the trustee’s reasons will be examined and reviewed.