The Caldwell decision (Caldwell & Caldwell [2026] FedCFamC1A 81) delivered 11 May 2026 is significant because it strengthens the ability of Family Courts to treat discretionary trust assets as part of the matrimonial property pool where one spouse has effective control of the trust.

In Australia, Caldwell’s case (Caldwell & Caldwell [2026] FedCFamC1A 81) delivered 11 May 2026 does not make prenuptial agreements (known as Binding Financial Agreements (BFAs) under the Family Law Act 1975) ineffective, but it does affect how parties should draft them when trusts are involved.

Cross-sibling testamentary trust structures are vulnerable to challenge in the Family Court, after relationship breakdowns. These structures may fail to protect family assets from being included in property settlements.

Over the last 10 years or so the Family Court of WA (FCWA) and the State Administrative Tribunal (SAT) have had to deal with an increasing number of property settlement and maintenance claims and applications for guardianship and administration involving couples who are still married or in a de facto relationship but no longer live together because of failing health, old age, mental health or substance abuse issues.

Andrew Davies examines the tensions that can arise between administrative tribunals and family courts in incapacity matters.

On 7 October 2021 the High Court of Australia handed down an important decision on the issue of apprehension of judicial bias.