Lottery Wins and The Nature of The Relationship of The Parties at The Time

In Eufrosin & Eufrosin [2014] FamCAFC 191 (2 October 2014) the Full Court of the Family Court of Australia (Thackray, Murphy, Aldridge JJ) dealt with the issue of a lottery win in a Family law property adjustment.

Relevantly the Court found:

• “The [lottery win] which came into the husband’s hands did so at a time when the parties were married and still living together. The moneys for the purchase of the ticket came from the husband’s earnings. I am of the view that a win in the lottery is in no different position to the acquisition of a piece of furniture, a block of land or other asset purchased or acquired by parties during a marriage with funds provided by either or both of them. … Marriage is for most partners an economic union. … I have no doubt that the purchase of lottery tickets was in furtherance of a joint matrimonial purpose and therefore any resultant win in the lottery must be regarded as a matrimonial asset. … Although the ticket was purchased by the husband, it was so purchased with the object and hope of achieving a matrimonial objective and I propose therefore to regard same as a matrimonial asset.“ 1 2
• “… In the ordinary run of marriages a [lottery] ticket is purchased by one or other of the parties from money which he or she happens to have at that particular time. That fact should not determine the issue. Where both parties are in receipt of income and where their marriage is predicated upon the basis of each contributing their income towards the joint partnership constituted by their marriage, the purchase of the 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 … Where one party is working and the other is not the same conclusion would ordinarily apply because that is the mode of partnership selected by the parties … There may be cases where the parties have so conducted their affairs and/or so expressed their intentions that this would not be the appropriate conclusion …” 3 4
• The source of funds should not “determine the issue” of how a lottery win should be treated for s 79 purposes. 5 6
• What is relevant, is the nature of the relationship of the parties at the time the lottery ticket was purchased.  7
• Regardless of the source of the funds, at the time the wife purchased the [lottery] ticket, the “joint endeavour” that had been the marriage of the parties had dissolved; there was no longer a “common use” of property.
• Rather, the parties were applying funds for their respective individual purposes. 8

1. Anastasio and Anastatsio (1981) FLC 91-093 per Baker J said (at 76,649-76,650) 
2. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (9) 
3. Zyk and Zyk (1997) FLC 92-644 per Nicholson CJ, Fogarty and Baker JJ (at 82,515) 
4. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (10) 
5. Zyk and Zyk (1997) FLC 92-644) 
6. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (11) 
7. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (11) 
8. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (11) 

Agitating Issues In The Best Interests of The Children

In my To Thine Own Self Be True article I posed a Family Law Act 1975 question:

• The possible self-destructive behaviour of the mother was an issue worth agitating before the Court.
• Was it in the best interests of the children to be placed primarily in the care of such a parent?
• It appeared that circumstances were conspiring to prevent the agitation of that issue.
• Did the duty to the Court in our adversarial system extend to requiring that material be placed before the Court to agitate that issue, so that it could be considered in determining what was in the best interests of the children?

On that occasion I did not need to resolve the question. Since I wrote my case note on Nettle & Nada I have considered the question a little further.

I look at two (2) cases for some assistance:
• RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest [2012] HCA 47 (7 November 2012); and
• Nettle & Nada [2013] FCCA 1677 (31 October 2013)

RCB
The proceedings in RCB involved an application under Regulation 14 of the Convention on the Civil Aspects of International Child Abduction (“the Convention”). Relevantly they involved consideration of:

• The interests and views of the child;
• The report of a family consultant; and
• The role of the Independent Children’s Lawyer.

In relation to ascertaining children’s views and interests, French CJ, Hayne, Crennan, Kiefel and Bell JJ. Found

An application under Regulation 14 is not brought to resolve, in an adversarial setting between parties in conflict, questions about the care and custody of a child. It is brought to determine whether Australia’s obligation under the Convention, to return a child wrongfully removed from a country of habitual residence, is engaged. If it is engaged, disputed questions of care and custody fall to be resolved in accordance with the laws of the country from which the child has been removed. That being said, the interests and views of the child are relevant to the existence of the obligation. 1

The Diversity Factor In The Appointment of Judges

The process of appointing judicial officers is something upon which I have previously written
1. In that article I endorsed the principles articulated by the Bar Association of Queensland, namely that:

1. “The integrity, reputation and standing of the Courts is paramount;
2. The Judiciary must be independent from the other arms of Government;
3. The Judiciary must clearly and unquestionably be seen to be independent from the other arms of Government;
4. Any person who is appointed to lead the Supreme Court of Queensland ought to have the general respect of the legal profession and the Judges of the Supreme Court.”

In her article “Appointing Australia’s highest judges deserves proper scrutiny” 2, Dr Gabrielle Appleby 3asks

• Should judges also be representative of the community that their rulings affect?
• What role should politics play in judicial appointments, if any?

In my experience, as careful as any government might be in selecting its candidates for judicial office, the one criteria that can never be predicted and it may even be the most important, is the effect judicial office and its attendant power will have on the individual office bearer.

Diversity
In respect of the Diversity discussion Dr Appleby said:
“It has also been suggested that a diverse judiciary may bring different perspectives to how justice may be achieved. For example, Justice Bertha Wilson, Canada’s first female Supreme Court judge, argued that men and women often conceive of legal problems differently. Men see problems as arising from competing rights, whereas women see problems as arising from competing obligations. Women therefore emphasise the importance of preserving relationships, not winning or losing.

Secret Relocation Involved Blatant Cunning and Deceit

The issue of relocation was dealt with by Judge Neville in Nettle & Nada [2013] FCCA 1677 (31 October 2013).

In July 2012 the Respondent Mother and the subject child clandestinely moved / secretly relocated from New South Wales to Hobart, Tasmania, without reference to the Father and the Court. This subterfuge by the Mother was, and has continued to be, facilitated to a significant degree by her parents. The Father and the Court continued to be deceived that she remained living in New South Wales until March 2013. 1

The Court had no evidence regarding, among other things, the fiancé of the Mother and his involvement in the life of the child 2  and the Court learnt about the fiancé of the Mother for the first time in the course of the trial 3

Almost all of the major long-term issues involving the child thus far had been taken solely by the Mother, without reference to the Father (the surname of the child, details on her birth certificate, her attendance at day-care, all relevant health decisions). 4

The experienced Independent Children’s Lawyer proposed that the child remain living with her Mother in Hobart, primarily because the child was [now] well settled there.