{"id":703,"date":"2022-01-21T11:00:27","date_gmt":"2022-01-21T11:00:27","guid":{"rendered":"https:\/\/goldman-lawyers.com\/online-law-communitya\/?p=703"},"modified":"2022-01-21T11:00:37","modified_gmt":"2022-01-21T11:00:37","slug":"family-court-finds-no-error-in-treating-husbands-lottery-winnings-as-soul-contribution-of-the-husband","status":"publish","type":"post","link":"https:\/\/goldman-lawyers.com\/online-law-community\/family-court-finds-no-error-in-treating-husbands-lottery-winnings-as-soul-contribution-of-the-husband\/","title":{"rendered":"Family Court Finds No Error in Treating Husband\u2019s Lottery Winnings as Soul Contribution of the Husband"},"content":{"rendered":"\n

Keywords:  <\/strong>Property settlement; section 79 of the Family Law Act;  lottery winnings; contributions;<\/p>\n\n\n\n

Introduction<\/strong><\/p>\n\n\n\n

In the matter of Elford <\/em>[2016] FamCAFC45 (29 March 2016) the Full Court of the Family Court consisting of Bryant CJ, Murphy CJ, Murphy & Cronin JJ, heard the wife\u2019s appeal against a property order made by Judge Roberts that the husband must pay the wife a sum of $51,000, an amount which, combined with the net value of a mortgaged home purchased by the wife after separation equalled approximately 10% of the $1.4 million asset pool.<\/p>\n\n\n\n

 Facts<\/strong><\/p>\n\n\n\n

The husband was 22 years older than the wife and had three children from a previous relationship. He won $622,842 in lottery 12 months into their 10-year relationship. The husband invested his winnings, along with his savings, into a term deposit account consisting of $650,000 in his own name. Both the husband and wife led largely separate financial lives. The husband inherited $190,000 from his mother\u2019s estate which he also kept separate.<\/p>\n\n\n\n

The Full Court said that the judge correctly considered the husband\u2019s savings and investments as contributions on his part. The first point of appeal by the wife, however, was that the lottery win of $622,822 was incorrectly treated as a contribution by the husband. The wife argued that the lottery win should be treated as a joint contribution by the parties.<\/p>\n\n\n\n

In arguing that the husband\u2019s lottery was a joint contribution, the wife acknowledged that the husband bought the ticket and deposited the money into his account. The wife believed that the lottery winnings should have been considered as a joint contribution on the basis that they were also in a relationship. Despite being in a relationship, however, the wife said that they each maintained separate bank accounts as this is what the husband wanted. The wife argued that the trial judge incorrectly applied the decisions of Zyk v Zyk<\/em> (1995) FLC 92-644 and Eufrosin & Eufrosin<\/em> [2014] FamCAFC 191 by giving undue weight to the financial aspects of the purchase of the ticket and the financial relationship of the parties rather than the \u201cjoint endeavour\u201d (being that the ticket was purchased during the parties\u2019 relationship).<\/p>\n\n\n\n

 Finding at First Instance<\/strong><\/p>\n\n\n\n

The Court held at first instance\u00a0that in addition to noting that the lottery money had been retained separately along with the $190,000 that the husband inherited in 2007 from his mother\u2019s estate, it was clear that the parties kept their assets and finances separate from each other. They each had separate bank accounts and the wife attested to this when she responded that it was always her husband\u2019s request that their respective accounts be kept separate and that the husband never wanted a joint account. The Court found that the husband\u2019s weekly lottery purchase was not intended to be a \u201cjoint matrimonial purchase\u201d. Further,\u00a0the wife did not have practical control of the family finances.<\/p>\n\n\n\n

The Full Court<\/strong><\/p>\n\n\n\n

According to the Full Court, it was better to approach the issue as one of a \u2018contribution\u2019 rather than a \u2018windfall\u2019 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<\/em>) dealing with the contribution of the parties.<\/p>\n\n\n\n

The Full Court perceived the critical question in such cases to be \u2018who is the contribution made by\u2019. 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\u2019 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.<\/p>\n\n\n\n

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<\/em> [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.<\/p>\n\n\n\n

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<\/em> (which deals with contributions of the parties). What is critical here is the nature of the parties\u2019 relationship at the time the lottery ticket was purchased.<\/p>\n\n\n\n

Conclusion<\/strong><\/p>\n\n\n\n

The Full Court found that the purchase was initiated by the husband independently of the wife, consistent with a lengthy practice of the husband\u2019s alone that pre-dated the relationship by about eight years. Rather than share or utilise any of the proceeds with the wife, the husband continued to treat his property as his solely. The wife accepted that this was the husband\u2019s intention even if she was dissatisfied with this.<\/p>\n\n\n\n

The wife\u2019s appeal was dismissed with the contribution being recognised as one by the husband and not a joint contribution.<\/p>\n\n\n\n

Mother Granted Recovery Order for Children after Father Unilaterally Relocated to US in  Shared Parental Responsibility Matter<\/h2>\n\n\n\n

Introduction<\/strong><\/p>\n\n\n\n

In the case of Bondelmonte<\/em> [2016] FamCAFC 48 (8 April 2016) the Full Court consisting of Ryan, Aldridge and\u00a0Le Poer Trench JJ heard a father\u2019s appeal against orders made by Watts J in a relocation case involving two\u00a0boys. The matter considered what should be regarded as the \u2018primary\u2019 and \u2018additional considerations\u2019 of the\u00a0children are pursuant to s 60 CC (2) and (3) of the Family Law Act 1975<\/em> (Cth) (\u201cthe Act\u201d).<\/p>\n\n\n\n

Background<\/strong><\/p>\n\n\n\n

This case involved a unilateral relocation to the US sought by the father while on holiday with his two sons of almost 17 and 15 years of age. The two boys wished to reside with their father whilst their 12-year-old siblings continued to reside in Australia with their mother. The existing orders made in 2014 were for equal shared\u00a0parental responsibility and the three children were to live with the mother and father as agreed between the\u00a0parties or at the children\u2019s own election.<\/p>\n\n\n\n

The family lived in Australia until January 2016 when the father took\u00a0both sons for a holiday to New York with the mother\u2019s consent. During the course of the holiday, the father expressed\u00a0to the mother his intentions of remaining in New York indefinitely with the two sons.<\/p>\n\n\n\n

The father gave evidence under oath that the boys expressed their wish to remain in New York with their father. The children claimed they had an estranged relationship with their mother, therefore, did not wish to return. The mother was granted a recovery order and the father\u2019s appeal was dismissed. The Court reinforced in relation to a child\u2019s view that \u201ccontext is critical\u201d.<\/p>\n\n\n\n

Central Issue in the Case<\/strong><\/p>\n\n\n\n

The central issue in this matter was whether the children\u2019s views should be taken into consideration. In this case \u201ccontext was considered to be critical\u201d. The Court ruled that the children be returned to their mother and that a report was required that dealt with more than simply the boys\u2019 views.<\/p>\n\n\n\n

The Court ruled the report was required to assess the dynamics of the sibling relationships and their respective relationships with their parents.<\/p>\n\n\n\n

Considerations<\/strong><\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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\u2019s approval.<\/p>\n\n\n\n

His Honour mandated that a report which dealt with more than simply the boys\u2019 views was necessary as the\u00a0Court 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\u00a0able to participate.<\/p>\n\n\n\n

His Honour expressed disdain in the father\u2019s breach of the orders and in doing so the father demonstrated poor judgement as a parent and \u2018as a role model to the boys\u2019. For the Court to agree with the father\u2019s behaviour would fail to acknowledge what might be considered appropriate parental behaviour.<\/p>\n\n\n\n

CONCLUSION<\/p>\n\n\n\n

Section 60CC(2) and (3) of the Act requires consideration of the following:<\/p>\n\n\n\n

\u00b7 the boys\u2019 expressed views as against the damage currently done to the mother\u2019s relationship with both sons;<\/p>\n\n\n\n

\u00b7 the father and daughter relationship; and<\/p>\n\n\n\n

\u00b7 the daughter\u2019s relationship with her brothers by the unilateral action of the father.<\/p>\n\n\n\n

These factors need to be considered alongside the history and family dynamics and any identified risk factors.<\/p>\n\n\n\n

If not for the mandated order to return both children to Australia, the Court raised concern that the above relationships will be irretrievably damaged. Therefore, the Court found it in the best interests of all three children to make the orders for the return of the boys to Australia.<\/p>\n\n\n\n

Father\u2019s Grounds for Appeal<\/strong><\/p>\n\n\n\n

As there was an order for equal shared parental responsibility pursuant to s 65DAA, the father relied on the\u00a0ground of appeal that the Court was obliged to consider whether or not an order for an equal or substantial and\u00a0significant time was in the best interests of the children and reasonably practicable prior to ordering the return of\u00a0the boys to Australia. However, the Court did not accept that an application for an order that a child lives\u00a0exclusively with one or another parent is an application for a substantial and significant time.<\/p>\n\n\n\n

Section 65DAA (2)(b) of the Act requires that the Court consider whether the child spending time with each parent would be in the child\u2019s best interests. The father also contended that sufficient weight was not given to the children\u2019s views.<\/p>\n\n\n\n

However, in the case of Maldera, <\/em>it was found that it is not a requirement for a judge in his Honour\u2019s position to make orders consistent with a child\u2019s stated views. Instead, a primary judge is required to consider the weight to be given to such views.<\/p>\n\n\n\n

Factors Giving Weight to a Child\u2019s Expressed Views<\/p>\n\n\n\n

The Court stated there is a range of factors that may affect the weight given to a child\u2019s expressed view which\u00a0include age and level of maturity of the child in question. Therefore, context is critical as it is a matter for the\u00a0judge to determine how giving effect to a child\u2019s stated view aligns with the best interests of the child.<\/p>\n\n\n\n

The case\u00a0of R & R (Children\u2019s Wishes)<\/em> [2002] FamCA 383 illustrates this point.\u00a0The parties and the Court were satisfied that each child could choose who they would live within Australia.\u00a0The children, however,\u00a0were not permitted to make other significant long-term decisions as that power remained\u00a0vested in the parties jointly. The majority dismissed the father\u2019s appeal and ordered that the father pay the\u00a0independent children\u2019s lawyer\u2019s costs.<\/p>\n\n\n\n

Allowing the Appeal<\/strong><\/p>\n\n\n\n

Le Poer Trench J allowed the appeal on the basis that the hearing should have been adjourned with the mother required to provide additional information about the proposal for the children to live with the volunteers.<\/p>\n\n\n\n

Furthermore, the independent children\u2019s lawyer should have been given an opportunity to investigate the proposal in the usual way that it is carried out. The father should have also been required to notify the Court of his intentions to accompany the boys on the trip back to Australia in the event the order sought by the mother is granted.<\/p>\n\n\n\n

Le Poer Trench J also believed the father should have been given an opportunity to put forward a proposal to house the boys in Australia pending the determination of the mother\u2019s parenting application and any simultaneous parenting application he would be entitled to make. Le Poer Trench J believed there was no urgency in the matter that should have disregarded these requirements.<\/p>\n","protected":false},"excerpt":{"rendered":"

Keywords:  Property settlement; section 79 of the Family Law Act;  lottery winnings; contributions; Introduction In the matter of Elford [2016] FamCAFC45 (29 March 2016) the…<\/p>\n","protected":false},"author":1,"featured_media":372,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[49],"tags":[],"yoast_head":"\nFamily Court Finds No Error in Treating Husband\u2019s Lottery Winnings as Soul Contribution of the Husband - Online Community Goldman Lawyers<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/goldman-lawyers.com\/online-law-community\/family-court-finds-no-error-in-treating-husbands-lottery-winnings-as-soul-contribution-of-the-husband\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" 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