2011_brisbane_court_600The recent decided case of Elford says much more than the headline on Nine MSN of 5 April 2016.  The headline read (LINK TO ARTICLEDivorced Man to keep entire lotto win despite long marriage.

The case (both the first instance decision and the appeal decision) more than anything reiterates the difficulty with which outcomes in property settlements can be predicted with any certainty.  At paragraph 49 the Appeal Court stated:

“Although frequently cited, in light of the arguments at the centre of the challenges just discussed, we consider it again important to repeat what was said over thirty years ago by the High Court in Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 by Gibbs CJ at 608-610:

… The Act does not indicate the relative weight that should be given to different circumstances, or how a conflict between opposing considerations should be resolved – those things are left to the court’s discretion, which must, of course, be exercised judicially.

It is proper, and indeed often necessary, for the Family Court, in dealing with the circumstances of a particular case, to discuss the weight which it considers should be given, in that case, to one factor rather than another. It is understandable that practitioners, desirous of finding rules, or even formulae, which may assist them in advising their clients as to the possible outcome of litigation, should treat the remarks of the court in such cases as expressing binding principles, and that judges, seeking certainty, or consistency, should sometimes do so. Decisions in particular cases of that kind can, however, do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered. It is necessary for the court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case.”

The decision which left the Husband with virtually all of his lotto winnings, his inheritance and other property intact was based primarily of the fact that the parties had not intermingled their finances.  The Husband had always kept his finances separate.  There were other factors involved but in general terms, in the writer’s view, the outcome of the case gives more weight to the argument that parties are far better of reaching an agreement than to leave the decision making to a Judge where ever that is possible.

You can read both the lower court’s decision and the appeal courts decision by following the links Lower Court – Appeal court

Whilst it is difficult to predict court outcomes we have the experience to provide you with our opinion based upon our many years of practicing in the field of family law.