A whole lotto luck for Mr Elford as Judges decide not to divide winnings to wife

Cases about lottery winnings often draw attention perhaps in part due to the large sums of money that can be involved but also because they require some very particular and detailed attention to be paid to how parties in a dispute have organised their lives during their relationship, before and after the win.


In a recent case, known as Elford and Elford (http://www.austlii.edu.au/au/cases/cth/FamCAFC/2016/45.html), a Wife appealed orders that provided for her to, by and large, not receive the benefit of a lotto win that happened very early in the relationship.


Ordinarily, you might think that if a lotto ticket is bought by one person in a relationship and the winnings are received during the relationship then those funds should be put into the parties’ joint assets and simply divided.


This is not necessarily the case though.

In a case known as Zyk  and Zyk (1995) FLC 92-644, the Court said that it was preferable to approach the issue as one of “contribution” rather than as a “windfall”.

That is, the Court should look at how the ticket was purchased, how were the funds used to buy the ticket were sourced and were generally or otherwise used, and what happened with the winnings afterwards.

It should also look at how the parties’ relationship was structured at the time to determine their intentions.

Applying these principles, the Court in this case noted that the parties had kept their finances very  separate throughout their ten year marriage; they had separate accounts and kept no joint accounts; the Husband purchased the ticket from his money that was not mingled together with the Wife’s; that the parties did not ‘hand each other’ their pay at the end of each fortnight; and when the Husband received an inheritance during the relationship, he deposited that inheritance into his own account with the lotto winnings and kept the monies separate.

In total, the parties’ conduct seemed to demonstrate that they very much kept their finances their own and separate both at the time of the win, and afterwards.

The way the parties organised their affairs was so clearly separated that it does appear to be notably different to the majority of cases that family lawyers would see.

This justified the Husband receiving a very large recognition for his contribution of both his lotto winnings and the inheritance.

The Wife was provided with an Order that meant she received 10% of the total assets.

Missed in much of the online commentary about this case is that the Husband had also suffered a stroke some 12 months before the separation that left him blind, unable to drive or read and required kidney dialysis three times a week.

The case means that lawyers and parties should very carefully and realistically assess what actually happened in a relationship and not look to simply say that all of each other’s property is shared.

Our experienced family lawyers know the questions to ask you to keep you informed and up to date with these issues.

You can contact us on 03 9614 7111 or Melbourne@nevettford.com.au to discuss your situation.

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How do you divide property when a relationship breaks down? Consider the family law four step!

It is with regularity that family lawyers are buttonholed at social events to provide some impromptu advice to someone going through a property division.

What is consistent through these conversations is how little many people understand of the process, how much people cobble together their own solutions based on what is ‘fair’, and how infrequently lawyers are consulted at an early stage to provide some guidance and frameworks for discussions between parties.

 

I can recall a matter that was brought to me where the parties had been spending an inordinate amount of time dividing and ascribing value to each and every item of furniture or household appliance and dividing these in a way that was reflective with their respective incomes; but had no idea that they might be entitled to some of each others’ superannuation, a significant oversight that would have resulted in one party missing out on almost $100,000 of superannuation.

 

So what is the broad overview of the process that family lawyers will apply?

1. Identify your assets, liabilities and superannuation as at present. This is commonly called the ‘asset pool’
2. Identify what contributions were made into the relationship, including both financial and non-financial contributions. This will mean knowing what you had at the beginning, what you had at the end, and how you got between those points.
3. Identify what your and your partner’s future needs are – whether they relate to income disparity, care of children, ill-health and medical costs, or your age.
4. Determine whether it is just and equitable to proceed with any alteration of your existing legal rights at all, as well as whether the final result as determined by the above 3 steps results in an outcome that is just and equitable and also practical.

These steps are simple in some senses but as with everything, the devil is in the detail of the implementation and the ‘edge cases’.

Consulting a family lawyer early for guidance to inform your discussions, identify any problematic issues and define your expectations is one of the most sensible investments of your money post separation you can make.

Call our family law team on 03 9614 7111 or email Melbourne@nevettford.com.au.

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Going to Court

What actually happens at Family Court? How should you prepare for the day? Will the Judge listen to what you have to say? Find out in this information video from our lawyer Richard Hamilton or call us for advice on your circumstances on 03 9614 7111

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Won’t somebody please think of the children? – issues to consider when wanting to relocate interstate

Parenting with a separated former partner can have its challenges, and one of the most polarising can be the decision of one parent to relocate across the country.

The guiding principle in this area of the family law is the best interests of a child, with the two competing primary considerations being the benefit to a child of having a meaningful relationship with both parents, and the need to protect a child from risk of harm in a variety of forms. The second consideration is ‘weighted’ more heavily than the first. There are a number of secondary considerations in the Family Law Act 1975 that are also taken into account.

From a practical standpoint, what this means is that there must be a compelling reason that a move would not benefit solely or simply a parent, but more importantly the child. Very clear consideration must be given to how, in the event of a move, a relationship with the other parent is maintained.

Reasons for a move might include greater cultural and educational opportunities, specialised services being available in the new region not available in the previous region, better family and emotional support for a child being in one region or another, or a parent being able to obtain much more fruitful employment in a new region, meaning that their child has a better chance at a greater quality of life.

Incidences of family violence and isolation for a parent in one region can also play a significant role in a proposed move. There may be very good reasons not to move as well, including cultural ties that would not be available in a new region, the loss of Indigenous connection to country should a move occur, and estrangement from a parent.

It is important if considering such a move that there be very clear communication with the other parent involved, and that intentions and reasoning are clearly set out for discussing.

You may not find that a parent confronted with such a proposal necessarily acts rationally or calmly at first, but it is important that a solid foundation and clear communication is established early on.

Every situation is different of course and you should obtain expert advice specific to your circumstances. The guide in this article is at a general level and should not be taken as legal advice for your specific circumstances. We are available to discuss these issues with parents considering making, or responding to someone proposing, such a move, at any time on 03 9614 7111, or by email at Melbourne@nevettford.com.au

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The Internet, titillation, and the Family Court of Australia

Does a predilection for masturbation mean that someone should not spend overnight time with their children?

Judge Ryan of the Family Court of Australia at Sydney delivered a judgment in a case that concerned this issue in January 2016. The full text of the judgment is available here(http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCAFC/2016/3.html ).

The case was an appeal from the initial decision in the Federal Circuit Court.

In brief, it is a question that turns very much on the facts – in this situation, there was it appeared no evidence that the children would be exposed to the material that the father accessed, and that if they were to do so, every indication was that the father would act promptly to correct the issue. Additionally, there was no evidence that the children were aware of the father’s habits, and there was no evidence that they had ever interrupted the father during masturbation.

No material appeared to be permanently stored on the father’s television, phone or tablet.

It also seemed that although there was reference to pornography by lawyers acting for the parties, the material concerned may have been at least in part more properly described as television shows containing sex scenes, which would have passed censoring of some sort, rather than wholly pornography.

The father would it appears watch a show on the TV or tablet, and sometimes masturbate in the bathroom afterwards. The mother in the situation was highly critical of the father’s other parenting skills as well, which may have contributed to a perception that her concerns were out of line with wider community expectations.

The Court made a careful consideration of the facts, and the children were permitted to spend time with their father for one overnight per fortnight on an alternate weekend, and for three nights per week during school holidays.

Media reports on the case have missed some of these subtleties and may inadvertently misdirect a party as to what is acceptable conduct and how to conduct yourself during Court proceedings. Broad sweeping statements about what type of behaviour is or is not permitted can lead people astray.

It is for these types of reasons that detailed, specific and expert advice tailored to your particular circumstances is important to reach a happy ending.

Contact our Liz Hall and Richard Hamilton on 03 9614 7111 or Melbourne@nevettford.com.au to talk through your situation.

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Honesty is the Best Policy

In family law cases, many clients think that some information they have available to them is not relevant, are ashamed to admit something, or are actively trying to disguise their true intentions from a lawyer.

You may be aware that your lawyer has a duty to not mislead the Court and so you may withhold information from them as a result.

However your lawyer is the person best positioned to advise you as to whether something is relevant or irrelevant.

For example, in parenting cases, sometimes a response to your Court documents is received that suddenly raises allegations of drug use, alcohol use or a prior criminal history. When asked about why the client did not mention this to you previously, the response might be that ‘it was irrelevant’ or a client felt ashamed about their situation. This leaves you and your lawyer having to perform a great deal of work to catch up and explain why there was not disclosure initially.

It also feeds into a perception that you are not being upfront or able to deal with problems, or that you will not openly admit to any difficulties that may arise in the future.

If you tell your lawyer early on, they are able to provide you with guidance to help you address any drug or alcohol issues, or direct you towards appropriate resources such as counsellors to support you to avoid delays.

Similarly, a business deal or written agreement might not be mentioned to a lawyer in a property proceeding because you did not want to bring a third party into your personal life. Again, your lawyer is best positioned to assess whether this is necessary; they can then give you all the options and you can make a conscious choice, instead of regretting a failure to even discuss the issue latter.

Having to disclose such a document later in proceedings ignites accusations from other parties that the document may have been prepared after the fact or that there has been an attempt to ambush. A failure to disclose may also result in another party to your case seeking costs against you for your conduct of the case.

As a rule of thumb, it is better that you are transparent and honest with your motivations, history and difficulties you are currently facing to your lawyer, so that you and your lawyer aren’t caught off-guard.

To find out more or for specific advice about your circumstances, call us on 03 9614 7111 or email Melbourne@nevettford.com.au.

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Interstate Relocation

What do I need to do if I want to move interstate with my children? Communicate your intention, communicate your reasons, focus on the benefit to your children and get permission to relocate to avoid being dragged back interstate. Most importantly, speak to a good lawyer before you do anything. Call Richard Hamilton at Nevett Ford Lawyers on 03 9614 711 or email Melbourne@nevettford.com.au for more information or to discuss your situation.

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