Review the trustee, appointor, beneficiaries, distribution powers and the ownership of any corporate trustee. Distinguish assets owned by the trust from personal assets, loans and beneficiary entitlements. A succession plan should explain who controls each role after death or incapacity; a personal will alone may not pass every trust power. Keep deeds, amendments, accounts and resolutions together so that the structure can be understood.
Section 79 of the Family Law Act 1975 (Cth), as amended by the Family Law Amendment Act 2024 from 10 June 2025, sets out the steps the Court follows in altering property interests. The Court must be satisfied that any order is just and equitable. Section 85A concerns certain nuptial settlements, and s 106B can affect transactions intended or likely to defeat existing or anticipated orders. Each party also has a duty of full and frank disclosure, which extends to trust interests. The treatment of a trust depends on the rights, powers and circumstances involved. No single rule makes every discretionary trust either available or unavailable.
In Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56, the High Court dismissed the appeals concerning family property orders and a discretionary trust. The husband's powers and the wife's rights were central to the Court's analysis. The case is a warning against assuming that a trust automatically shields family wealth, although it does not mean that all assets of every trust belong to the person who controls it.
For Victorian duty, a discretionary trust can be a foreign trust where the trustee is able to distribute more than 50 per cent of trust capital to foreign persons, even if no foreign beneficiary has ever received a distribution. A foreign trust that buys residential property may pay foreign purchaser additional duty, currently 8 per cent, on top of transfer duty. For land tax, a discretionary trust with an absentee beneficiary can be an absentee trust and attract the absentee owner surcharge, currently 4 per cent annually. Families whose parents, children or other relatives live in China should review the beneficiary clause before the trust buys Victorian property. Any amendment to exclude foreign or absentee beneficiaries must be permitted by the deed and meet the State Revenue Office's requirements.
A binding financial agreement under Part VIIIA of the Family Law Act (s 90B before marriage, s 90C during marriage and s 90D after divorce) can address how trust interests are dealt with if the relationship ends. Strict requirements apply, including independent legal advice for each party. Combine any agreement with a trust deed review, coordinated wills, appointor succession and tax advice. Avoid last-minute transfers intended to frustrate a spouse or creditor; review the existing structure and its legitimate purpose instead.
Hugh Zhao holds current practising certificates issued in Victoria and in Shanghai, PRC. PanAus Partners reviews family trust deeds, prepares binding financial agreements and advises on the Chinese family and property law aspects of a structure. We work alongside accountants, financial planners and other Australian law firms that advise Chinese-Australian families.
Our Melbourne office is at Level 2, 830 Whitehorse Road, Box Hill VIC 3128. Bring the trust deed and any amendments, recent financial statements and a list of family members and where they live.
家族信托不能保证资产在离婚时不被分割。Kennon v Spry 案表明，法院会审查信托控制人的权力和配偶的权利。对于父母或子女身在中国的墨尔本家庭，还有一个常被忽略的风险：如果信托契约允许把超过 50% 的信托资本分配给外国人，信托在维州买住宅可能要多交 8% 的外国买家附加印花税，每年还可能要交 4% 的缺席业主土地税附加费。婚前或婚内财产协议（BFA）往往是更有效的保护工具。泛澳律业为家庭、会计师和财务规划师提供信托审查和 BFA 服务。
Author: Hugh Zhao
Last updated: October 2026
Jurisdiction: Victoria, Australia
Disclaimer: This article provides general information only and does not constitute legal, financial or tax advice. The law may change and its application depends on individual circumstances. You should obtain professional advice before acting on the information contained in this article.