Campbell v The Public Trustee

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1182/99 ISOBEL RUTH CAMPBELL -V- THE PUBLIC TRUSTEE JUDGMENT

MASTER: These are proceedings under the Family Provision Act 1982.

By summons filed on 25 January 1999 the Plaintiff, Isobel Ruth Campbell, claims an order for provision for her maintenance, education and advancement in life out of the estate of the late Kevin Morgan (to whom I shall refer as "the Deceased").

The Deceased died, aged 57, on 25 July 1997. He died intestate. Letters of administration of his intestate estate were on 14 October 1998 granted to the Public Trustee (who is the Defendant to the present proceedings).

The estate is a small one. At the present time the Defendant holds to the credit of the estate account an amount of almost $76,000, from which must be paid liabilities totalling $6,055. Provision must also be made for the costs of the Defendant of the present proceedings, which are estimated to be in the order of $18,000 - $20,000, and also, in the event that she be successful and have a costs order made in her favour, for the costs of the Plaintiff, which are estimated to be in the order of $15,000 -$20,000.

It follows, therefore, that the distributable estate will be no more than $50,000 and may be considerably less than that amount.

The Plaintiff asserts that she was at the time of his death the de facto spouse of the Deceased. She asserts that they had lived together in a de facto relationship in the Defendant's residence at 32 Charles Street, Abermain from September 1991 until shortly before the death of the Deceased. That death occurred as the result of a fire at the Deceased's residence on the previous day, 24 July 1997.

The status of the Plaintiff as the de facto spouse of the Deceased at the time of his death is disputed by the Defendant.

If the Plaintiff had been the de facto spouse of the Deceased for the period which she asserts, then, pursuant to the provisions of section 61B (3B) of the Wills, Probate and Administration Act 1898, the Plaintiff would have been entitled to the entirety of the intestate estate of the Deceased (and would also have been entitled to a grant of letters of administration of the estate).

The Deceased had during his lifetime been married, and later divorced. Of that marriage were born six children. The Deceased was also the father of two other children by other relationships. The Deceased was survived by all his eight children, seven of whom are adults, and the youngest of whom, Kevina Lee Porter (who was born on 3 January 1992), is presently aged 8 years.

In the event that the Plaintiff does not establish that she was the de facto spouse of the Deceased continuously for at least two years preceding his death, then (pursuant to either section 61B (3B(b)(i) ) or section 61B (4) of the Wills, Probate and Administration Act) the intestate estate of the Deceased will be divided equally among his eight children.

It would appear that during the course of his de facto relationship with the Plaintiff the Deceased did not always remain faithful to her.

Towards the end of 1996 the Plaintiff became aware that the Deceased was conducting an affair with another woman. In consequence of that affair, which the Deceased had previously denied to the Plaintiff, the Plaintiff on 27 February 1997 moved out of the Defendant's residence at Abermain, and entered into residence in a flat at Cessnock, of which she took a lease. According to the Plaintiff, the Deceased, with whom she remained in contact during the period whilst she was residing at Cessnock, requested her to return to his residence at Abermain. That she did on 27 March 1997.

It is also appropriate here to record that on 27 January 1997, before the Plaintiff moved out of the Abermain residence, the Deceased made a handwritten statement, signed by him and witnessed by one Leo Saunders (annexure A to the affidavit of the Plaintiff sworn 30 September 1999). The purport of that statement was to express an intention on the part of the Deceased that the Abermain property be given to the Plaintiff. However, the Plaintiff did not seek to rely upon that document as constituting a will of the Deceased of the nature described in section 18A of the Wills, Probate and Administration Act.

Upon separation the Deceased paid an amount of $6,000 to the Plaintiff. That payment was partly in respect to a loan of $4,000 which the Plaintiff had made to the Deceased in December 1995, at the time when the Plaintiff sold her motor vehicle. Also, during the period whilst the Plaintiff and the Deceased were not physically residing together in the Deceased's residence, the Plaintiff instructed a firm of solicitors, Emery Partners, to write on her behalf to the Deceased, on 26 March 1997, indicating that the Plaintiff was prepared to accept a further sum of $10,000 from the Deceased in return for forgoing any claim which the Plaintiff might have under the De Facto Relationships Act 1984.

I am satisfied that the de facto relationship which had obtained between the Plaintiff and the Deceased from September 1991 (the existence of which was not disputed by the Defendant) came to an end when the Plaintiff moved out of the residence of the Deceased on 27 February 1997.

There was a considerable dispute between the parties as to whether the de facto relationship resumed on 27 March 1997, and obtained until the death of the Deceased almost four months later.

According to the Plaintiff, she was residing in the Deceased's residence throughout that four month period. Also residing there, as well as the Deceased, was his youngest child, his daughter Kevina (who had been residing full-time with him and the Plaintiff since June 1996). The Plaintiff had been in the role of a mother to Kevina, who from May 1997 attended the Abermain Primary School, at which the Plaintiff was a teacher. Also in residence at that house property was Michael Morgan, a son of the Deceased.

The residence itself which was located upon that property was described as being tiny. Michael occupied as his bedchamber a shed which was physically separate from, but in close proximity to, the principal residential building. He used the facilities of that principal residence for ablutionary and toileting purposes, and in order to watch television and listen to the wireless. It was the evidence of Michael that the Plaintiff was not in residence at that property throughout the period from late March 1997 until the death of the Deceased.

Another son of the Deceased, Timothy John Fernando, who at that time was residing in Wagga Wagga, visited, with his daughter Lynette, in late April/early May 1997, he and his daughter staying in the Deceased's residence for several days. According to Timothy, the Plaintiff was not in residence during that period.

Whilst the Plaintiff had been residing in the leased flat at Cessnock during the most of the month of March, her son Paul Campbell had been residing in that flat with her, and it would appear that he continued to reside there until the expiry of the lease in early June.

Although it was asserted by at least Michael Morgan that during the period from late March until June 1997 the Plaintiff was not living in the Deceased's residence at Abermain, but was still living in Cessnock with her son during that period, no evidence on behalf of the Plaintiff was adduced from Paul Campbell as to whether during the period from the end of March until the beginning of June 1997 whilst he was residing in the leased premises at Cessnock he was residing there alone or was residing there with his mother.

I am not satisfied that the Plaintiff has established that throughout the entirety of the period from late March 1997 until the death of the Deceased she was residing with the Deceased. Nevertheless, the fact that the parties were or were not residing together is only one of a number of factors which taken together establish the existence of a de facto relationship. (See, for example, Roy v Sturgeon (1986) 11 NSWLR 454.)

There is no doubt that from the end of March until the death of the Deceased the Plaintiff and the Deceased were in a relationship, in which the parties saw each other frequently, the Deceased not infrequently drove the Plaintiff and (after she commenced attending school) his daughter Kevina to the Abermain Public School and collected them afterwards, and which involved a sexual relationship between the Plaintiff and the Deceased.

In this regard, it is also relevant that from late August 1996 until the death of the Deceased (apart from an interruption of about one month from 4 January 1997) the Deceased was in a sexual relationship with another woman, Julia Ann Walker.

Whilst it may be that, had it not been for the tragic and untimely death of the Deceased in July 1997, the parties would have resumed co-habitation and would have resumed a de facto relationship, I am not satisfied from the evidence before me that there was a de facto relationship in existence between the Plaintiff and the Deceased at the time of his death.

Nevertheless, as I have already observed, it was not disputed on the part of the Defendant that a de facto relationship obtained between the Plaintiff and the Deceased from September 1991 until February 1997, a period of about five and a half years. Throughout that period the Plaintiff lived in the residence of the Deceased, and was dependent upon him for shelter and accommodation.

I am satisfied, and indeed, it was not disputed on the part of the Defendant, that the Plaintiff was an eligible person within paragraph (d) of the definition of that phrase contained in Section 6 (1) of the Family Provision Act, in that she had been a member of the same household as the Deceased, and that she had been partly dependent upon the Deceased. Accordingly, the Plaintiff has the standing to bring the present proceedings. (It will be appreciated that each of the eight children of the Deceased is also an eligible person, within paragraph (b) of the definition of that phrase.)

However, since she is an eligible person within paragraph (d) of the definition of that phrase, the Plaintiff must, pursuant to section 9 (1) of the Family Provision Act, establish that there are factors warranting the making of the present application.

I am satisfied that the fact that the Plaintiff was for a period of about five and a half years the de facto spouse of the Deceased, and that throughout that period she contributed as homemaker to the household consisting of the Deceased and his infant daughter Kevina, and acted in the role of parent to Kevina constitute factors which warrant the making of the present application.

The Plaintiff was born on 6 October 1947, and is presently 52 years of age. She has five children of a previous relationship, all of whom are adults, and none of whom, apparently, is dependent upon her.

The Plaintiff is a school teacher by occupation. She currently earns about $49,000 a year, and receives about $650 net a week. She has no assets. She has a liability of $22,000 to the Teacher's Credit Union, in respect to a loan which she took out in 1997 in order to purchase a motor vehicle. She is repaying that loan by instalments. However, at the present time the Plaintiff does not own a motor vehicle.

The Plaintiff currently resides in a rented home unit with her niece. She has made inquiries of local real estate agents and has ascertained that the average price for a house property at Maitland in reasonable condition is about $130,000. However, she does not have any ready funds which she could use for a deposit upon such a purchase.

The Plaintiff hopes to continue teaching until she reaches the age of 58, at which time she will be entitled to receive by way of superannuation about $163,000.

The Plaintiff suffers from a bronchial condition, which requires regular medical consultation.

According to the Plaintiff various household and personal items which belonged to her were destroyed in the fire which brought about the death of the Deceased in July 1997. She has received no insurance payments in respect to that loss.

I have already referred to the fact that upon intestacy the estate of the Deceased will be shared among his eight children. So far as the evidence disclosed, none of those eight persons is in affluent circumstances. Indeed, the evidence before the Court reveals that they are all in extremely modest circumstances. It would appear that the youngest child of the Deceased, Kevina, is presently under the care of the Department of Community Services.

The claim of the Plaintiff must be approached in the light of the competing claims of the eight children of the Deceased, each of whom is an eligible person in relation to the Deceased, and who must be regarded as being natural objects of testamentary recognition by the Deceased.

In my view the benefit to which Kevina is entitled upon the intestacy of her father, being a one eighth interest in the estate, should not be disturbed by any order for provision which the Court might make in favour of the Plaintiff. Counsel for the Plaintiff expressly stated that it was the instructions of the Plaintiff that there should be no such disturbance to the benefit to which Kevina is entitled on intestacy.

It seems to me, however, that the Plaintiff should receive from the estate of the Deceased a legacy in an amount which would enable her to place a deposit on a residence, and which, possibly, would go some way towards the acquisition of a motor vehicle. I consider that, in the light of the size of the estate and the views which I have already expressed concerning the interest of Kevina, it is appropriate that the Plaintiff should receive out of the intestate estate of the Deceased a legacy in the sum of $20,000, and that that legacy should be borne by that part of the estate to which the seven beneficiaries other than Kevina are entitled upon intestacy.

That is, upon the assumption that the distributable estate is about $35,000, Kevina will retain one eighth of that amount - that is, an amount of between $4,000 and $5,000, and the legacy of $20,000 to the Plaintiff will come out of the balance of the assets. The residue (of about $10,000), after the payment of that legacy, then will be divided among the seven other children of the Deceased.

1. I order that the Plaintiff receive out of the estate of the late Kevin Morgan ("the Deceased") a legacy in the sum of $20,000, such legacy not to bear interest if paid on or before 3 November 2000, and if not so paid to bear interest at Supreme Court rates.
2. I order that the aforesaid legacy be borne by that part of the intestate estate of the Deceased to which the children of the Deceased, other than Kevina Lee Porter, are entitled, to the intent that the said Kevina Lee Porter will receive one eighth of the distributable estate of the Deceased before the payment of the aforesaid legacy.
3. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.
4. The exhibits may be returned.

Last Modified: 10/18/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.