In de facto property proceedings under s 205ZG of the Family Court Act 1997 (WA), the characterisation of discretionary trust assets as a party's 'property' is an all-or-nothing proposition requiring findings as to whether the party is the sole trustee (or has de facto control) with power to apply the entirety of the trust assets to or for their own benefit. The bare equitable right of a beneficiary under a discretionary trust will not ordinarily be included as 'property' but may constitute a 'financial resource'. Superannuation funds should not be treated as 'property' without sufficient evidence that the party can access the fund without detriment. An appellant who accepts payments under property orders is not precluded from appealing by the doctrine of approbation and reprobation. Restitution follows as a matter of course when orders are set aside for retrial, but enforcement may be suspended under s 15 of the Civil Judgments Enforcement Act 2004 (WA) in special circumstances.
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