Tuesday, July 14, 2015

'Look through' powers of the Family Court

As set out in earlier posts, and with thanks to the Television Education Network, today’s post addresses the issue of 'Look through' powers of the Family Court’ at the following link - https://youtu.be/4I57VXYU0w4 

As usual, a transcript of the presentation for those that cannot (or choose not) to view the presentation is below – 

The ultimate rationale in relation to the look through powers of the Family Court which are extraordinarily wide - the Family Court has powers that do not exist in other area of the law-, is public policy.   

This is because it is seen as inequitable that a party who has been in a longstanding relationship has access to assets that they can effectively deal with as their own via a trust structure, but then suddenly those assets are completely ignored in a property settlement.   

The rules are driven by public policy and this is why the concept of 'continuum' as to the way the courts deal with trusts is so relevant. The answer to the question 'is that asset protected?' in many situations will ultimately often be 'it depends'. And it depends on the court's perception and interpretation as to how that overriding and overarching public policy framework applies to any particular factual scenario.