The Wife made an application to the Family Court for an order that the Husband pay interim spousal maintenance for $10,833 per month.  The Wife asked that this be paid until determination of the property proceedings between the Husband and Wife.

The Family Court granted the interim spousal maintenance application.  The Husband disagreed with the Family Court’s decision and filed an application to discharge the interim spousal maintenance order.  To support the Husband’s case he investigated the Wife’s financial circumstances.  The Wife’s father had passed away in 2009.  The Husband discovered that the Wife might have an entitlement under the father’s Will.  One of the Wife’s brothers was administering the father’s estate as the Executor.  The Husband attempted to subpoena the father’s will.  The Executor refused to provide a copy of the Will.  Instead, a solicitor on behalf of the brother provided an affidavit outlining the potential entitlements that the Wife may be entitled to under the Will as:

1. $16,500,000 if she divorced; and
2. An annual payment of $150,000 if the Wife did not divorce.

In the father’s Will he stated that the payments were to be paid by a group of companies that the father controlled when he was alive.  The group of companies (the V Group) were left to the Wife’s 3 brothers.  The solicitor on behalf of the brother claimed it was unlikely that the Wife could force the V Group to make the payments.  The Wife claimed she was unaware of the contents of the father’s Will.

The Family Court heard the Husband’s application to discharge the interim spousal maintenance order and dismissed the Husband’s application.  The Husband disagreed with the court’s ruling and appealed to the Full Court.

The mother discussed the circumstances of the children including that Daisy was very demanding and would have “meltdowns”.  As a result of this, John and Sue received little attention.  John was a demanding child and as a result, Sue received the least amount of attention.

The father, through his own admission, favoured John over the other children and would often do activities with John while excluding the girls. After the parties’ separation, the father had little involvement with the children.  The father’s only attempt to have greater contact with the children was when proceedings were commenced by the mother.  The father used excuses as to why he did not want more contact with the children including due to an incident at Daisy’s special needs school.

The Court noted that the father had not sought the assistance of the government or other services to assist with the care of Daisy nor assisted the mother in this regard.  The Court also noted that the father often called on other family members to look after the children when they were in his care.

The Court concluded that the father puts himself first over the parenting, behavioral and educational needs of the children. 

Ryan and Aldridge JJ in the majority held that the primary judge was satisfied it was in the best interests of the two boys to return to Australia pending a determination about whether, in the long-term, they would continue to reside in Australia or relocate to the United States.

If the father decided to return to Australia with the two boys, they were to continue living with him, however, if he remained in New York, the boys would live with the mother in Australia. As the boys had a strained relationship with their mother, the Orders provided that the mother and boys could make arrangements for the boys to stay with nominated third parties without the father’s approval.

His Honour mandated that a report which dealt with more than simply the boys’ views was necessary as the Court would not examine such factors as to the dynamic of the sibling relationship and also each sibling relationship with their parents. The report was ordered to take place in Australia where all family members were able to participate.

His Honour expressed disdain in the father’s breach of the orders and in doing so the father demonstrated poor judgement as a parent and ‘as a role model to the boys’. For the Court to agree with the father’s behaviour would fail to acknowledge what might be considered appropriate parental behaviour.

According to the Full Court, it was better to approach the issue as one of a ‘contribution’ rather than a ‘windfall’ for the simple reason that the latter isolates the asset into a special category outside the traditional approach family law property proceedings (applying section 79 of the Family Law Act) dealing with the contribution of the parties.

The Full Court perceived the critical question in such cases to be ‘who is the contribution made by’. In ordinary marriages, the ticket would be purchased by one of the parties to the marriage with money that he or she happens to have at that particular time. Therefore, it is widely acknowledged that irrespective of the parties’ financial positions or otherwise, the purchase of a ticket would be regarded as a purchase from joint funds in the same way as any other purchase within that context and would be treated accordingly. It would equally apply if one party was working and the other was not as it is the type of partnership selected by the parties.

The Court explained that generally this approach would be adopted, however, there are times and situations where this is not the practicality of the matter at hand. The Full Court in Eufrosin & Eufrosin [2014] FamCAFC 191 adopted a similar approach. In this case the wife had purchased a winning lottery ticket six months after the parties had separated. The winnings were $6,000,000 of which the wife gave her sister $1,000,000 and kept the remaining $5,000,000.

According to the Court, the origin of the funds should not determine the issue of how a lottery win should be treated for the purposes of section 79 of the Family Law Act (which deals with contributions of the parties). What is critical here is the nature of the parties’ relationship at the time the lottery ticket was purchased.