Family Court dismisses appeal by Wife seeking bigger share of blind Husband’s $622,842 lottery win

In a very recent decision, the Full Court of the Family Court of Australia sitting in Melbourne has dismissed a Wife’s appeal seeking a greater share of the property pool, made up primarily of the Husband’s lottery winnings. The case, Elford & Elford [2016] FamCAFC 45, is an important decision where the Court has found, having regard to the particular circumstances of the case, that the Husband’s lottery winnings, won during the relationship, was a contribution made solely by him.

This case involved a 68 year Husband, who was 22 years old than his 47 year old wife. The parties commenced living together in 2003, married in 2007 and separated in 2012. During their cohabitation, and one year into the relationship, the Husband purchased a lottery ticket, from his own source of funds and won $622,842. The Husband invested the monies and did not share the monies with the Wife or otherwise apply the monies to the relationship. Relevantly in this matter both parties kept their finances separate during their 9 year relationship. The Wife had a property and mortgage in her sole name and credit card debt in her own name.

During the relationship the Husband inherited an amount of $190,000 from his late mother’s estate. Again the Husband did not share the monies with the Wife or apply the monies to the relationship.

An important issue for the Court to take into account in this matter was the ill health of the Husband. The Husband had suffered a stroke in 2011 which left him blind and unable to drive or to read. It was approximately 12 months later that the parties separated.

When the matter was first before the Federal Circuit Court in 2014, the property pool consisted of:

Husband’s home                                                         $ 345,000

Husband’s bank balances and investments          $ 960,000

Wife’s home                                                                 $ 269,000

Wife’s mortgage                                                         ($ 234,575)

Wife’s superannuation                                               $ 67,189

Wife’s credit card and loan                                       ($ 21,000)

The Wife sought an Order that she receive 32% of the property pool. Unfortunately for the Wife, Judge Roberts of the Federal Circuit Court did not agree and ordered that the Wife receive 10% of the $1,400,000 property pool. This meant that the Wife was to receive a payment by the Husband in the amount of $51,000. The Wife being unhappy with the decision, appealed to the Full Court of the Family Court.

The Full Court of the Family Court, upheld the decision of Judge Roberts, meaning the Wife was only to receive the payment of $51,000 from the Husband and no more.

As part of the Wife’s appeal, the Wife argued that Judge Roberts should have found that the lottery winnings were a ‘joint contribution’. If this argument was accepted it would follow that the Wife would receive a greater share of the property pool, or put simply, a bigger cash payment from the Husband. The Full Court did not accept this argument, and at paragraph 42 of their Judgment, noted:-

‘In her Affidavit the wife said: “[The husband] claims that this [lottery] win comprises his sole contribution. I claim it is a joint contribution made during the period of our relationship.” She was asked in cross-examination how it could be considered to be a “joint contribution”, and her answer was: “Because we were in a relationship”. When questioned further she conceded that:

  • she did not contribute financially towards the purchase of the ticket;
  • she did not pick the winning numbers;
  • the husband had been buying weekly tickets with those numbers since 1995;
  • she and the husband had been in a relationship for less than a year when his ticket was a winner;
  • the winning ticket had been in the husband’s sole name; and
  • the funds had been paid into the husband’s bank account.

What we can take from this decision is that there are circumstances where the Court will treat a lottery win, won during the course of a relationship as a ‘sole contribution’. If you would like to read the full decision, please follow this link:

http://www.austlii.edu.au/au/cases/cth/FamCAFC/2016/45.html

At McLaughlins Lawyers, your Family Lawyers on the Gold Coast, we are able to provide you with practical family law advice for your individual circumstances and needs. We invite you to call our office on (07) 5591 5099 to speak to one of our family lawyers today.

Author: Nicole Fitzgibbon

Partner: Sophie Pearson

Date: 11/04/2016

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