KNEEN & CROCKFORD - [2011] FMCAfam 372

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KNEEN & CROCKFORD

[2011] FMCAfam 372

FAMILY LAW – Property – de facto relationship – lottery winnings – joint contribution of the parties – credibility issues – legal principles.

Family Law Act 1975, ss.4AA, 75(2), 79, 90FK, 90SF, 90SM
Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008, s.68

Pastrikos (1980) FLC 91-987
Lee-Steere (1985) FLC 91-626
Ferraro (1993) FLC 92-335
Clauson (1995) FLC 92-595
Whitely (1996) FLC 92-678
OSF & OJK (2004) FMCAfam 63
Zyk & Zyk (1995) FLC 92-644

Applicant:

MS KNEEN

Respondent:

MR CROCKFORD

File Number:

CAC 2110 of 2009

Judgment of:

Lindsay FM

Hearing dates:

22 September 2010, 13 & 14 October 2010

Date of Last Submission:

14 October 2010

Delivered at:

Adelaide

Delivered on:

21 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr Brzostowski SC

Solicitors for the Applicant:

Farrar Gesini & Dunn

Counsel for the Respondent:

Ms Tonkin

Solicitors for the Respondent:

Hill & Rummery

ORDERS

That the pronouncement of orders in accordance with these Reasons be adjourned to 5 May 2011 at 10am to enable counsel for the parties to confer and to draw a Minute of Order in accordance with the Reasons with both solicitors at liberty to attend by telephone.

IT IS NOTED that publication of this judgment under the pseudonym Kneen & Crockford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 2110 of 2009

MS KNEEN

Applicant

And

MR CROCKFORD

Respondent

REASONS FOR JUDGMENT

The parties to these proceedings were born in Sierra Leone. The respondent arrived in Australia in 2002 and the applicant in 2004. They lived together for periods of time in Australia thereafter. One of their periods of cohabitation resumed in September 2008.
On 22 October 2008 the applicant purchased a lottery ticket in the Powerball lottery and on 25 October 2008 she was advised that she had won $3 million.
The parties were never married.
The matters set out in the preceding subparagraphs are an account of almost the only agreed facts in the case.
Each of the parties were very poor witnesses. Neither of them were regarded by me as witnesses of truth. They lied about different aspects of the evidence but they both told lies. They told lies, both orally and in affidavit form, because they thought it would advance their case to do so.
This is a matter that falls to be determined pursuant to Part VIIIAB of the Family Law Act 1975 (as amended) (“the Act”).
I find the parties finally separated on 18 December 2009.
There was no dispute between the parties as to the existence of a de facto relationship within the meaning of s.4AA of the Act (but there were significant differences between them as to the nature of their relationship at times). No jurisdictional threshold issue was raised by either party, however, in relation to the relationship. Both parties were agreed that there were numerous circumstances as set out in s.4AA (2) of the Act indicative of the parties having lived together on a genuine domestic basis. There was no dispute as to the satisfaction of the geographical requirement set out in s.90FK of the Act.
The Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 provides in s.86 that Part VIIIAB only applies to de facto relationships that broke down after the commencement of that Act which, in the Australian Capital Territory, was 1 March 2009. The separation of these parties having occurred when it did means that the adjudication of this dispute will be governed by the provisions of Part VIIIAB of the Act.
Section 90SM(4)of the Family Law Act 1975 sets out the matters that must be taken into account in determining the orders that should be made in relation to property settlement proceedings arising out of the breakdown of a de facto relationship. They reflect the same considerations that are set out in s.79(4) of the Act in relation to property settlement following the breakdown of a marriage. The matters include the matters referred to in s.90SF(3) of the Act and they in turn reflect the provisions of s.75(2) of the Act.
In the same manner I must not make an order under s.90SM(3) unless I am satisfied that in all of the circumstances of the case it is just and equitable to make the order.
Consistent with authority, I propose to apply these provisions in the same manner and according to the same principles relating to the application of the analogous provisions of s.79 of the Act.
The approach to the resolution of disputes relating to property settlement between married spouses is well settled. There is a four step process to be followed. The assets must first be identified and valued on a net basis. The Court must then consider the contributions the parties have made to the acquisition, improvements and maintenance of those assets, both financial and non-financial contributions, both direct and indirect. Having carried out that task the Court is then to consider the application of those matters enumerated in s.75(2) of the Act and to give weight to such of them as are relevant to the facts and circumstances of the case. This was formerly referred to in the cases as an adjustment on account of the needs of the parties but it is broader than that. Finally, the Court has an overriding discretion to adjust or modify the operation of the orders so as to achieve an outcome that is just and equitable in terms of the demands of the legislation.
There is ample authority for proceeding in this way (see Pastrikos (1980) FLC 91-987, Lee-Steere (1985) FLC 91-626, Ferraro (1993) FLC 92-335, Clauson (1995) FLC 92-595 and Whitely (1996) FLC 92-678). There is a limited controversy as to the nature of the fourth step and whether it is truly a discrete fourth step or only involves an adjustment to the form and balance of the orders. I do not need to resolve that disputation to determine this case but I respectfully adopt the explication of the nature of this so-called fourth step by Walters FM in OSF v OJK (2004) FMCAfam 63 and do not regard this step as a substantive fourth step as such.
There are no children of the relationship.
Where I make any factual findings it is on the basis of corroborative material in the form of documents being available that enables me to do so. On other occasions I have made a finding because the parties have come to an agreed position about a certain fact. Even in that latter set of circumstances, however, I am uneasy about making findings of fact because it may be that each of them may be in the case of such agreed facts, only agreeing for personal reasons not to dispute a false version of the facts given by the other. That is an index of the extent to which my confidence in the truthfulness of each of the parties has been undermined.
In an affidavit filed in the Magistrates Court of the Australian Capital Territory and sworn on 18 December 2009 the applicant says as follows:
4. Every week I would buy PowerBall tickets using my wages. In October 2008 I bought the ticket at the kiosk in [location omitted]. It won. I won $3,000.000. I rang Tattslotto in Melbourne. Because my English is not as good as the respondent’s English he went to Melbourne to collect the money. He put the money into his own bank account with the [omitted Bank]. As far as I know it is still in that account.
5. I do not have access to his account. We did not have any joint accounts before I won the money. Now the money is in his account and he has refused to let me have it.
6. After I won the money Mr Crockford and I bought three properties. We live in one of them and the other two in [Suburb B] and [Suburb C] are rented out. The rent goes into a joint account. I do not have access to it. The respondent has bought two cars. One of them was written off in an accident and he got the insurance money. He then bought a Mazda van. I do not drive so I cannot use the car. I get buses to work.
The applicant filed a further affidavit in this Court on 4 February 2010.
That affidavit included the following:
4. In October 2008, I won $3,000,000 on the PowerBall. I buy a PowerBall ticket every week.
5. I purchased the winning ticket from the [omitted kiosk] on 22 October 2008. The draw occurred on 23 October 2008. I subsequently attended the [omitted kiosk], in the [location omitted], on 25 October 2009. The person there said to me words to the effect, “You have won 3 million dollars.” I did not believe them.
6. I subsequently went to the [omitted kiosk] (“[omitted kiosk]) in the [location omitted] and presented the ticket there. The person said to me words to the effect, “You have won 3 million dollars.”
7. Annexed hereto and marked with the letter “A” are payment slips for the [omitted kiosk] and [omitted kiosk] dated 25 October 2008.
8. At [omitted kiosk], the person said to me words to the effect, “We need to call Tattslotto in Melbourne.” They took me into an office. I did not understand the person on the phone and suggested that Mr Crockford come and assist me. I telephoned Mr Crockford and said to him words to the effect, “I won a lot - $3 million. Can you come to speak for me and write our address.” He subsequently attended [omitted kiosk] and spoke to the person from [omitted kiosk]. They arranged for me to be sent a letter from Tattersalls.
9. I believe Mr Crockford subsequently spoke to Tattersalls and said the ticket was won by both of us. This is not true. The reason I believe this is because on 29 October 2008, Tattersalls sent a letter addressed to both of us outlining how to collect the winnings. A copy of that letter is annexed hereto and marked with the letter “B”.
10.    Mr Crockford went to Melbourne to get the winnings on 7 November 2008. Annexed hereto and marked with the letter “C” is a copy of the Central Payment Receipt from Tattslotto in Melbourne on 7 November 2008 evidencing the win of $3,000,000. Annexed hereto and marked with the letter “D” is a copy of the receipt from Tattersall’s dated 7 November 2008. It is made out to Mr Crockford. He collected the cheque.
11.    When Mr Crockford returned from Melbourne, I said to him words to the effect, “Give me the cheque so I can put it in my account.” He responded words to the effect, “No. The cheque is in my name. I put it in my account.”
12.    In paragraphs 4-6 of my affidavit sworn 18 December 2009, I said Mr Crockford had kept all the money. That is not correct.
13.    Sometime in November or December 2008, after I won the money, Mr Crockford and I went to [omitted Bank] at [location omitted] and we both approached the teller at the bank. Mr Crockford arranged to transfer approximately $600,000 to an account in my name. I did not tell the Court about that previously because I thought I was entitled to all the money and only needed to tell the Court about the money Mr Crockford had.
14.    ….
15.    Other than the $600,000, Mr Crockford has not allowed me access to the balance of the monies which were n term deposits controlled by him.
On 13 September 2010 the applicant filed a further affidavit and said at paragraphs 22 to 27 as follows:
22.    Tattslotto wrote to Mr Crockford (sic) and I, explaining how to collect the cheque. I was worried about the cheque being sent in the mail. I said, “I will go to Melbourne and pick the cheque up,” or words to that effect. Mr Crockford (sic) said to me words to the effect, “No. I will go and pick it up. I know the place.” I said, “Okay.” I went to work on the day Mr Crockford (sic) went to Melbourne to collect the cheque.
23.    Mr Crockford (sic) went by himself to Melbourne and collected the cheque for $3 million. He put the money in his account. After that time, I said to Mr Crockford (sic), “Give me my money,” or words to that effect. I said that to him every day.
24.    On 17 November 2008, Mr Crockford (sic) gave me $600,000. He transferred that money from his account into my account. I appreciate that in paragraphs 4-6 of my affidavit sworn 18 December 2009, I did not refer to that payment. At the time I was concerned about recovering the balance of my money, and obtaining restraints stopping Mr Crockford (sic) from spending more of the money. My solicitors did not specifically ask me if I received part of the money. As soon as I realised that had not been included in my earlier affidavit I filed a further affidavit to correct my version of events. My second affidavit was filed on 11 February 2010.
25.    I also received $52,219.50 pursuant to the Orders of Federal Magistrate Brewster dated 23 December 2009.
26.    Other than that, I have not received any money from Mr Crockford (sic). In April/May 2010, I travelled to Sierra Leone. At the time there was a restraint that prevented me from withdrawing more than $100 per day. I said to Mr Crockford (sic), “Can I have money to go to Sierra Leone?” He said, “Yes, but not from the joint account. Use your own money,” or words to that effect.
27.    My mother was unwell and I needed to visit my family. I took money out of the account that had originally had the $600,000 in it, which was not the account where the $52,219.50 referred to above was deposited. The total I withdrew was $40,000 which I used for return flights to Sierra Leone and medical fees for my mother, and miscellaneous expenses.
The December 2009 affidavit is false in important respects. Paragraph 4 suggests that the respondent travelled alone to Melbourne to collect the money. He did not. He was accompanied by the applicant. They both travelled together on the same aircraft. A cheque for the money was paid payable by the lotto representatives to an account in the name of the respondent. The applicant was present when that was done. The applicant said in her oral evidence that she was in the toilet at the Melbourne office of the lotto company when that decision was made. I do not believe her.
Paragraph 5 of the December 2009 affidavit says that “the money” was in the respondent’s account. The clear purport of the paragraph is that she had none of the money as at December 2009. That was false. She well knew that on 17 November 2008 the sum of $600,000 was transferred by the respondent into her account.
The December 2009 affidavit is therefore seriously misleading in two important respects.
The February 2010 affidavit in paragraph 10 repeats the lie about the respondent travelling to Melbourne alone and the circumstances of his collection of the cheque.
The lie is embellished in the false account given in paragraph 11 of the same affidavit which is said to have occurred when the respondent returned from Melbourne (implicitly, alone).
Paragraphs 12 and 13 of the February 2010 affidavit acknowledged the falsity of the December 2009 affidavit as it relates to the applicant not having any money at the time of the swearing of that first affidavit. But it makes matters worse. For the truth of the matter is that by February 2010 the applicant had been paid not only the sum of $600,000 by the respondent in November 2008 but a further sum of $200,000 in February 2009. Even as she purports to confess to the giving of a false account, the applicant seriously misleads the Court as to the amount of money that she has been given from the winnings. That lie is repeated in paragraph 15 of the February 2010 affidavit.
With respect to the September 2010 affidavit, it will be noted that the false account of the respondent travelling alone to Melbourne is repeated again. This time it is embellished by the applicant referring to herself as having gone to work on the day that the respondent went to Melbourne to collect the cheque and the lie is explicitly repeated in the first sentence of paragraph 23.
Once again, the applicant gives an account (in paragraph 24) of her having given false evidence in her December 2009 affidavit. She gives an explanation for it. The explanation is in two parts: firstly that she was concerned about recovering the balance of her money, and secondly that her solicitors did not specifically ask her if she received part of the money. The first is really just an indication that she set out to lie when she gave her account and the second part I reject. The second part of her excuse is just another lie. She then goes on to say that as soon as she realised that she had not included the reference to the receipt of the $600,000 she filed a further affidavit (see the last two sentences of paragraph 24). But, of course, she continues not to mention the receipt of $200,000 in February 2009.
That deceit is continued in paragraphs 25 to 27 where she gives an account of monies received by order of Federal Magistrate Brewster dated 23 December 2009 (that is correct as far as it goes) but then goes on in the next paragraph to tell a bold lie when she says:
Other than that, I have not received any money from Mr Crockford (sic).
It was only on the first day of trial that we got an admission by the applicant as to her receipt of a further $200,000 in February 2009 and that admission was made through counsel.
It is against the background of this false testimony that I have to assess the applicant’s accounts of the nature of her relationship with the respondent and of the financial circumstances pertaining to that relationship insofar as they are relevant to the division of their assets.
I will return to those issues in a moment.
Against this background it is hardly surprising that the legal representatives of the parties have had to go to the extent that they did to ascertain what had happened to the money won in the lottery but as a result of their efforts that much at least seems reasonably plain.
The parties jointly purchased three properties between October and December 2008 at [Suburb C], [Suburb B] and [Suburb A] respectively. The total amount expended on those purchases was $1,239,794. As at the date of the trial it was agreed that that real property had a total value of $1,290,000 (being worth $440,000, $455,000 and $395,000 respectively). The parties lived together in [Suburb A] until their separation and the respondent took up occupation of the [Suburb B] property in or about March 2010.
The parties operated a joint account following the purchase of the real estate and there is currently standing to the balance of that account the sum of $33,350.
To these sums must be added the amount each of them received pursuant to an order of Federal Magistrate Brewster made on 23 December 2009. He made orders which effectively saw balance in the account in which the respondent had held the proceeds of the lottery when it closed down divided between them equally. They each received a sum of $52,219.50.
I propose to add-back the sum of $800,000 to each of the parties i.e. a total add-back of $1.6 million with one half of that amount credited to each party. There is no doubt but that the applicant received that sum in the two amounts I have referred to above. The respondent contends that he paid himself an equal amount. The payment must have been “notional” only because he had control of the account in which the money was held but for the purposes of this add-back I accept that he intended to and did in fact appropriate the sum of $800,000 for his own purposes from that joint account before it was closed.
At the date of the hearing before me the applicant had an amount of approximately $80,410 in savings and the respondent the amount of approximately $206,000 in investments. They have disposed of the rest of the money in ways about which I will have a little more to say hereafter. I do propose, however, to add-back two specific sums on the respondent’s side of the ledger and they are the motor vehicle he purchased with his share of the lottery proceeds currently valued at $30,000 and the vehicle he purchased prior to that which he wrote off in an accident for which he received the sum of $10,291.67.

In addition to that I accept the evidence of the parties that the respondent has in his possession personal items and chattels worth $12,000 (being furnishings he purchased when he had control of the monies) and that they each have superannuation interests, the applicant $9,000 and the respondent $11,764.
The total asset position of the parties therefore, is, therefore:
[Suburb A] property  $395,000.00
[Suburb B] property  $455,000.00
[Suburb C] property  $440,000.00
Mazda (Respondent)  $30,000.00
Proceeds from NRMA car loss (Respondent)           $10,291.67
Proceeds from order FM Brewster (Applicant)        $52,219.50
Proceeds from order FM Brewster (Respondent)     $52,219.50
Add-backs (Applicant)  $800,000.00
Add-backs (Respondent)  $800,000.00
Proceeds from joint account (Applicant)                   $33,350.00
Personal items and chattels (Respondent)                 $12,000.00
Superannuation (Applicant)  $11,764.00
Superannuation (Respondent)  $9,000.00
$3,100,844.67
Both of the parties ended up sending significant monies back to family, relations and friends in Sierra Leone and both have travelled to and from Sierra Leone since the lottery win. Each of them were less than frank and co-operative in providing details as to what happened with the monies. The respondent, for example, only acknowledged after some time in the witness box having advanced to his brother a sum of $400,000. It must have been a very difficult process for the legal representatives of the parties to get to the bottom of what had happened to the sums of money that each of the parties have had control of since the lottery win.
The applicant sent significant sums of money to Sierra Leone by way of [omitted] transfer. Ultimately the view I have taken as to how the winnings should be applied has meant that there is no utility in undertaking specific tracing exercises with respect to the expenditure of the funds. It was appropriate to recognise that the respondent has had two specific sums of money utilised in respect of motor vehicles which are still referrable to the period of time in which he operated the account into which all of the money had been placed. I am prepared to infer that those monies are monies he has had the benefit of over and above the $800,000 which he said he considered himself entitled to on account of the advance of that total sum of money to the applicant.
The Full Court decision of Zyk & Zyk (1995) FLC 92-644 summarises the law in relation to the way in which lottery winning cases are dealt with in applications pursuant to s.79 of the Act. In that case, the parties separated some six years after the lottery win. There were three children of the marriage but all of them were adults at the time of the proceedings. The facts relevant to the lottery purchase were that the husband was a member of a syndicate which regularly purchased tickets over a period up to the point of the win in 1987. The husband received an amount of approximately $95,000 which is one-third of the win. The wife was not a member of the syndicate and played no part in the purchase of the ticket. The trial Judge found that it was part of the husband’s general practice during the marriage to “hand all his money to the wife who had practical control of the family finances”. The lottery tickets were purchased by him from monies which he had from time to time. The proceeds of this win were collected by the husband and handed to the wife who applied them so that thereafter it formed part of their joint property.
The Full Court carefully considered a number of conflicting authorities of judges at first instance and conclude that the preferred approach is to analyse lottery wins as a matter of a contribution rather than a windfall. They say at [82515]:
In common parlance a windfall is used to describe a chance or unexpected benefit which the people involved neither anticipated nor made any effort towards. The receipt of a substantial lottery prize may in general be referred to in that way. However, we doubt whether, for the purposes of the exercise under s.79, that is the correct analysis. The parties purchase a ticket and expend part of their earnings or capital for the express purpose of winning the prize or a prize. Whilst the chances of winning the major prize are remote, the reality is that somebody does and it is the expectation, or at least hope, of each entrant that he or she may be that person. It is not the product of any particular skill but it is the product of the chosen expenditure of a small sum of money. Contributions is, we think the preferable description within 2.79 because an acquisition of a prize contributes to the property of the parties.
Their Honours go on at [82516]:
In the sort of case to which we have referred above the conclusion would be that the ticket was purchased by joint funds and the contribution of the prize would be seen as a contribution by the parties equally. 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, but in the generality of cases with which this Court would normally deal this appears to us to be the correct approach and the correct outcome.
Their Honours deal specifically with the suggestion made in an earlier case that the conclusion to be drawn depends upon the closeness to the end of the marriage. They say at [82516]:
That circumstance would only be relevant if it were directed to show that the closeness of the breakdown of the marriage supported the view that the parties had a particular arrangement of the type referred to above; otherwise it appears to us to be irrelevant. It would be odd indeed if it was initially seen as a joint contribution but was transposed into a sole contribution because of this subsequent event.
The reference to “a particular arrangement of the type referred to above” is somewhat ambiguous. It is not clear whether their Honours are referring to the “generality of cases” or the “exception to the generality of cases” discussed above. Logically, one would think they were not referring to the generality of cases.
The parties were in agreement about very little relating to their relationship.
The respondent said that they commenced their relationship in 1999 in Sierra Leone. He came to Australia in 2002 but he contended that they went through the formalities of a marriage in that year. It turned out in evidence that the suggestion was that the applicant had undergone a married by proxy to him in Sierra Leone. He said that they lived together in Sierra Leone for a period of two years between 1999 and 2001 but that she moved out to live with her sisters at the beginning of war in Sierra Leone in 2000 although, he says, the relationship “remained on foot”.
He sponsored her travel to Australia in 2002.
He said that they lived together in Australia for a period of about five and-a-half years.
He said that their final separation was in December 2009. He acknowledged very little in terms of the applicant’s allegations about previous separations.
He said that they both worked in Australia during the relationship. He said that they both initially worked in the health industry but then he completed a [course omitted] course and was employed mainly as a [employment omitted] and did some [other work] on the weekend. The applicant continued to work in the health industry. He said that they shared expenses including those expenses relating to rent, electricity, food, heating and motor vehicle expenses. He said they operated a joint bank account. They purchased a home in joint names in [Suburb D] and that property was sold towards the end of 2007. He said that the net proceeds were deposited into a joint account from which they paid rent, and withdrew money for food and other general expenses.
He said that they both played Powerball or Lotto each week and each contributed to the ticket costs. Curiously he says in his affidavit that
I formed the view that the purchase of the ticket was a joint purchase.
It is unclear to me what he meant by that expression. Generally, he said that the ticket would be purchased together or if not one or other of them might purchase it.
He said that each of them understood that, whoever bought it, it was a joint ticket and that they would share the winnings. He recalled they had won a small sum of about $90 on a previous occasion and jointly purchased a blanket and a travelling bag.
His account of the circumstances relating to the collection of the winnings was accepted by the applicant as the truth. The parties travelled together to Melbourne on the Monday following the win on the Thursday. He said that they agreed that the cheque was to be deposited into his account.
Despite the potential significance of the evidence, the respondent did not produce one page of one joint account operated by the parties during their residency in Australia prior to the lotto win. The parties had a joint loan account with the [omitted Bank] in respect of the [Suburb D] property. The single page produced is for the period June to August 2007 and shows four separate credit amounts in the sum of $1,003.61 which is described as “loan payment Crockford/Kneen” and a series of debits on a monthly basis relating to that account. It is a mortgage account. The source of the credit amount was never made clear. It is not an account which corroborates the parties operating an account jointly in the sense that they both banked monies into the account and joint expenses were met from it. No page from any such account was produced by the respondent.
Moreover, although I could not accept all of the details of her evidence, it is plain that in 2007 the applicant moved out of the home she shared with the respondent and moved into two separate women’s shelters and was there for the greater part of 2008. The applicant said that she did not even speak with the respondent during this period. She makes serious allegations of violence against the respondent which he denies, but the only application for a Domestic Violence Restraining Order that was made by her was in the period following the separation and that application was dismissed in the Australian Capital Territory Magistrates Court.
In any event, the applicant acknowledges having moved back into the respondent’s home in September 2008. At that time he was living in [Suburb C]. The applicant says that she paid “$150 per week rent” while she lived in those premises but then also says that she did not know how much it cost the respondent to live there. It is unclear whether she claims she was paying a share of rent directly to the landlord or paying an amount to the respondent to pass on to the landlord.
The applicant was at some pains in her oral evidence to suggest that after her arrival in Australia in 2002 the respondent did very little, if anything, to assist her in becoming accustomed to life in Australia. Whereas he alleged spending a great deal of time showing her how to catch public transport and use automatic teller machines and the like, she was dismissive of nearly all of his efforts in this regard.
The respondent suggests that he also taught her how to play lottery. Needless to say, the applicant denied that.
The respondent said that they shared domestic tasks when they lived together but this was in general terms denied by the applicant who said that those responsibilities fell to her.
The applicant said that she was the only one of the two who purchased lotto tickets. She said that if the respondent ever bought a lotto ticket he did not tell her about it. She claimed that he was dismissive of her buying tickets and encouraged her not to do so. She said that she always referred to the tickets as her tickets and not in a way that indicated joint ownership by them. She said that she had only ever won small amounts prior to the $3 million win and that she always kept those winnings for herself, and what she did with the money was not something she consulted the respondent about.
There is no doubting but that the applicant contacted the respondent when she was advised by the newsagent that she had purchased the winning ticket.
There was some doubt as to the question of how she came to purchase the ticket from the relevant newsagency in Canberra. She gave somewhat detailed evidence about her general practice being to use her EFTOS facility at that centre and the applicant’s bank records do show debits of varying amounts of $10 or $11 on various periods between July and August 2008. The applicant claimed the ticket cost $10 and a sundry amount of cents.
Interestingly, however, there is no debit in respect of the purchase of the winning ticket on 22 October 2008. It appears to have been purchased with cash, contrary to the applicant’s evidence. There is no doubting the applicant purchased the ticket. It may be that in her desire to demonstrate a pattern of purchases using the EFTOS facility she chose to claim that the payment for the purchase of the winning ticket was made in the same method but unfortunately did not consult her bank statements before making that claim. That would be consistent with the general pattern of her evidence which was to say anything which she thought might assist her in her case regardless of the truth of the contention.
I do not want to give the impression of having preferred the respondent’s evidence to that of the applicant. The applicant’s credibility was extremely low on those topics which related to her conduct in the period immediately prior to the knowledge that she had won the ticket. I have already summarised those matters. The extent of her untruthfulness makes it very difficult to accept her contentions in relation to any other topics.
The respondent’s evidence was correspondingly lacking in credibility on those matters relating to the nature of the relationship between the parties in the period leading up to the purchase of the ticket. He was also unco-operative and at times deceitful in respect of the use to which he had put the monies he retained in the joint account.
At the end of the evidence it is very hard to rely upon the evidence of either party where it is in conflict with the other. The applicant’s untruthfulness in respect of the deceit by her of monies received after the win and in respect of the circumstances relating to the collection of the cheque were ultimately refuted in a way which she was bound to accept.
Those topics on which the respondent was very unconvincing were not amenable to the same straight forward process of refutation, and this essentially is because of the nature of the evidence being about the way in which a relationship was conducted.
The parties were sharing premises in the weeks leading up to the purchase of the ticket at the very least and the applicant was making some contribution to the rent. I am prepared to infer on the basis of their evidence that there was a joint sharing of expenses and a pooling of the income to the extent that it was necessary to meet those expenses although the pooling did not extend to the operation of a joint account. The relationship appears to have been conducted with a fairly high level of mistrust.
The conduct of the applicant in the period immediately of her finding out that she had won (in fact it was confirmed at two newsagencies on the morning) in contacting the respondent immediately and in then permitting him to make arrangements for their joint travel to Tattslotto in Melbourne and her acquiescing in her payment of the money to an account operated by the respondent, is suggestive of her regarding herself as being in a relationship where the money was likely to be regarded by them both as having been jointly won. It is not a conclusion I come to with any degree of confidence but I am not in a position of being able to accept with confidence the evidence the applicant gave me in relation to her having regarded the lotto enterprise, that is the purchase of a ticket on a regular basis, as having been her sole initiative and the winning monies to which she was solely entitled. Her conduct in the period from the date of the lotto win until the separation of the parties over 12 months later is completely inconsistent with that contention.
In the circumstances I have come to the conclusion that the monies should be regarded as the joint contribution of the parties, the ticket having been purchased in circumstances where the parties were pooling their monies to the extent of meeting joint expenses and conducting the relationship such that the winning of either of them should be regarded as their joint winnings.
The lotto win is effectively the only property that is available for distribution between the parties except for their very small superannuation interests.
The applicant is 27 years of age. The respondent is 29 years of age. They are both in good health.
The respondent conceded in cross-examination that he earns a gross income from all sources in the amount of approximately $60,000 per annum which is considerably more than the income I am satisfied the applicant earns of approximately $35,000 per annum. That disparity in income, on account of the respondent’s [other] qualifications, is something that is likely to subsist for some period of time and it seems to me to entitle the applicant to a small adjustment pursuant to the provisions of s.90SF(3) of the Act.
There are no other factors pursuant to s.90SF that seem to me to provide a basis for discriminating between the position of the parties.
The kind of adjustment that I think is appropriate in the circumstances is one which equates to an amount of approximately $100,000. There is no certainty about the employment prospects of either party but I am prepared to infer that it will be at least a period of approximately four years that the disparity in their income which the parties are currently experiencing will continue. Of course, either of the parties may re-partner. They may go into business. It is not possible for me to prognosticate what their future financial circumstances will be but I think upon the basis of their current employability and the incomes they are able to derive from their employment, an adjustment of the order I mentioned is the appropriate one.
So I would allocate the first $100,000 of the asset pool to the applicant.
The balance of the asset pool, a sum of $3,000,844.67, should be divided equally between the parties. The respondent is entitled to assets therefore of the value of $1,500,422.30. He has assets, including the add-backs to which I referred, totalling $913,511.17. He is entitled to a payment from the applicant (on the basis of her retaining all of the real property and the proceeds of the joint account of the parties in the amount of $33,350 and her superannuation) of the sum of $586,911.20.
If he wishes to retain the [Suburb B] property in which he currently resides then the orders can reflect a transfer of that property to him and an obligation on the part of the applicant to pay him an amount of $131,911.20. If the orders went further, in that event, to provide for him to have the balance of the joint account then the amount which the applicant would be obliged to pay to him to retain the [Suburb C] and [Suburb A] properties would be $98,561.20.
Whatever the ultimate agreed or ordered distribution of the real and other property, an outcome which sees each of the parties retaining approximately $1.5 million in assets (with the applicant having the additional sum of $100,000), even though somewhat in the half of each of their assets are noticed in the form of add-backs, is a just and equitable outcome. The accident that the respondent has approximately $120,000 in cash remaining from his disposition of his share of the funds, means, in effect, that the present asset positions are very close to equal.
In those circumstances, not knowing the wishes of the parties in respect of the disposition of the real property, it is appropriate to give counsel the opportunity to take instructions and draw orders reflecting those instructions if that is possible. If no agreement can be reached in relation to the practical implementation of the terms of the orders, then I will make the orders that are open to me in accordance with these Reasons.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 21 April 2011