Carpio v Roncalla

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2441/99 FRED CARPIO and ors -V- NANCY MARIA LOAIZA VELA RONCALLA JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982. 2 The proceedings were instituted by summons filed on 21 May 1999 by the Plaintiffs, Fred Carpio, Jenny Carpio and James Carpio. By that summons the Plaintiffs claim an order for provision for their maintenance and advancement in life out of the estate and/or the notional estate of their late father Genaro Ramiro Roncalla (to whom I shall refer as "the Deceased"). Subsequently, on 8 June 1999, there was filed a document entitled "Amended Summons", the parties to which and the relief claimed wherein appear to be identical to those set forth in the summons. 3 Subsequently, on 28 March 2000 an order was made by consent that Juana Guenilda Carpio be joined as a Plaintiff to the proceedings, and that she have leave to file and serve an amended summons reflecting such joinder within seven days of the making of such order. Juana Guenilda Carpio is the former wife of the Deceased and is the mother of the three Plaintiffs named in the summons. There has not yet been filed an amended summons of the nature contemplated by the consent orders made on 28 March 2000. However, the proceedings were conducted upon the basis that Mrs Carpio was properly a party thereto, and that the proceedings consisted of a claim by the three children and the former wife of the Deceased. 4 The Deceased died on 16 January 1999 (aged 63), as a result of injuries received by him in a motor vehicle accident on that date. He left a will dated 7 December 1998, probate whereof was on 5 August 1999 granted to his widow Nancy Maria Loaiza Vela Roncalla, the executor named in such will (who is the Defendant to the present proceedings). 5 By that will the Deceased, in the events which have happened, gave the entirety of his estate to the Defendant. 6 The assets in the estate, as disclosed in the Inventory of Property include a one half interest as tenant in common with the Defendant in the house property situate at and known as 29 Albert Road, Auburn (to which one half interest a value of $100,000 was ascribed), together with other assets (having a total value of a little under $68,000), the most significant of which being money in an account with the St. George Bank ($44,472). The assets listed in the Inventory of Property have a total value of $167,985. 7 The house property at 29 Albert Road, Auburn (which had been the residence of the Deceased for about 20 years before his death, since before the arrival in Australia of his wife and children in 1979) was previously registered in the name of the Deceased alone. However, by transfer dated 7 December 1998 (that being also the date of his will), the Deceased for a consideration of $1 transferred that property to himself and the Defendant as tenants in common in equal shares. In her affidavit of 26 July 1999 the Defendant states that she has been advised that that transfer may be a prescribed transaction. In that affidavit the Defendant states that the value of the one half interest thus transferred to her is $100,000. Subsequently, however, a value of $110,000 has been ascribed to that one half interest, evidence of valuers being that the present valuation of the Albert Road property is at least $220,000. 8 The Deceased, who was born on 10 March 1935, married Juana Guenilda Carpio (to whom I shall refer as "Mrs Carpio") on 27 May 1962. Of that marriage were born three children, being Fred (who was born on 23 April 1963 and is now aged 36), Jenny (who was born on 13 May 1966 and is now aged 33) and James (who was born on 12 June 1967 and is now aged 32). They are the three Plaintiffs named in the proceedings as originally constituted. 9 The Deceased and Mrs Carpio, and each of their three children, were all born in Peru. 10 The Deceased, who soon after his marriage had worked for short periods in West Germany and in the United States of America, first came to Australia in 1972, remaining here for about fifteen months before returning to Peru. He subsequently returned to Australia in August 1976, and (apart from relatively short visits to Peru) lived permanently in Australia from then until his death. 11 At the request of the Deceased, Mrs Capio and their three children left Peru and came to Australia in mid-1979, the Deceased paying their airfares. 12 Evidence has been placed before the Court by Mrs Carpio and by each of her three children concerning the manner in which the Deceased comported himself as husband and father, both in Peru and in Australia, and the way in which he discharged his responsibilities to his wife and children. It is a fair summary of that evidence to say that, according to the Plaintiffs, the Deceased very largely failed in those responsibilities. It was asserted that he did not provide adequate support, either material, financial or emotional for his wife or his children; that his attitude towards them was mean, tyrannical and unfeeling. Eventually Mrs Carpio in May 1981 left the Deceased, taking the three children with her. The contact thereafter between the Deceased and Mrs Carpio was for practical purposes non-existent. For several months after the separation the children, apparently with encouragement from their mother, continued to visit the Deceased. However, the frequency of that contact diminished, and after several months it ceased altogether. 13 Nevertheless, for a period of about two years, from about 1986 until about 1988 (that is, from the time when he was aged about 19 until he was aged about 21) the youngest child, James, resided with his father at Auburn. During that period James paid his father $40 a week for board, and assisted with jobs about the house. After James moved out in about 1988 he continued to have a normal son/father relationship with the Deceased until 1994, seeing the Deceased almost weekly on a social basis, and giving him help around the house. That relationship came to an end when James announced his intention to change the surname of his firstborn child from Roncalla to Carpio. Apart from the foregoing contact between James and the Deceased, there was no continuing relationship and little contact between any of his three children with the Deceased from several months after the separation in 1981 until the death of the Deceased. 14 Although the affidavit evidence did not in any way reveal this fact with clarity, the Deceased and Mrs Carpio were divorced, the decree becoming absolute on 30 August 1983. 15 The Defendant was born on 30 April 1959, also in Peru, and she is now aged 41. She had previously been married and divorced, and has one child, a son Eddy Alonso Gomez, who was born on 28 October 1984, and is now aged 16. The Deceased and the Defendant met in Peru in 1989. After his return to Australia the Deceased and the Defendant corresponded and spoke by telephone regularly. According to the Defendant, the Deceased proposed marriage to her by telephone in 1994, and requested that she come to Australia. Her domestic and family circumstances were such that, according to her, the Defendant was reluctant to come to Australia at that time, and until she had put in order her affairs in Peru. However, in September 1996 the Defendant came to Australia on a three month tourist visa, whilst her mother looked after her son in Peru. During that visit the Defendant lived with the Deceased at his Auburn residence. He paid her airfare, and paid for her food and other expenses during her three month visit to Australia. 16 After her father's death in June 1997, the Defendant returned to Australia in December of that year on a three month tourist visa. The Deceased and the Defendant married on 21 January 1998, and shortly thereafter the Defendant applied for permanent residence in Australia. She was thereupon issued with what was described as a "bridging visa". Throughout the period from her return to Australia in December 1997 the Defendant resided with the Deceased in the Auburn residence, and he paid all her expenses. 17 The Defendant returned to Peru in February 1998, for the purpose of winding up her affairs in that country. She returned to Australia in June 1998 on the bridging visa, the Deceased paying her airfares. After the Defendant's son completed his schooling in Peru in December 1998 he joined his mother in Australia. The Deceased paid his airfare. 18 Apart from her visit to Peru for a period of four months in the first half of 1998, the Defendant resided continuously with the Deceased from her arrival in Australia in December 1997 until the death of the Deceased some thirteen months later. She was not working throughout that period, since she was awaiting approval of her application for permanent residence. She was totally dependent upon the Deceased, who paid for all her expenses. According to the Defendant, her marriage to the Deceased was a happy one. The Defendant was a passenger in the motor vehicle driven by the Deceased, at the time when the Deceased sustained his fatal injuries in January 1999. The Defendant is now an Australian citizen. 19 Each of the first three Plaintiffs, as a child of the Deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. As such, each of those Plaintiffs has the standing to bring the present proceedings. The fourth Plaintiff, Mrs Carpio, as a former wife of the Deceased, is also an eligible person, within paragraph (c) of that definition. As such, she also has the standing to bring the present proceedings. 20 It should here be observed that if an amended summons of the nature contemplated by the consent order of 28 March 2000 been filed within the period specified in that order, the claim of Mrs Carpio would have been instituted within the limitation period of 18 months from the date of the death of the Deceased prescribed by section 16 of the Family Provision Act. No such amended summons has been filed, and I shall later in this judgment return to a consideration of whether or not the claim by Mrs Caprio has been instituted within time. 21 It should also be observed that the Defendant, as the widow of the Deceased, is also an eligible person, within paragraph (a) of the definition, and that, apart from the four Plaintiffs and, possibly, her own son Eddy, she is the only other eligible person in relation to the Deceased. The Defendant is the chosen object of the testamentary beneficence of the Deceased. 22 I have already referred to the evidence of the Plaintiffs that throughout the period of his marriage to Mrs Carpio, and throughout the childhood and formative years of each of his three children, the Deceased, both in Peru and in Australia, totally disregarded and abdicated his responsibilities, both financial and emotional, to his wife and children, and did not manifest that degree of love and affection which would be expected of a husband to his wife and of a father to his children. 23 As the hearing proceeded it became apparent that the evidence filed on behalf of the Plaintiffs did not give an accurate picture of the financial and material situation in which Mrs Carpio and her children found themselves, especially after the separation of the Deceased and Mrs Carpio. Whilst it was necessary for Mrs Carpio, in order to support and maintain herself and her three children, to go to work, it did not from their evidence emerge with any clarity, or, indeed, at all, that from the time of separation (which, it will be appreciated, occurred only about two years after Mrs Carpio and her children arrived in Australia in 1979) the Deceased paid to her maintenance of $50 a week. 24 There was placed in evidence material from the Family Court of Australia concerning an application for property settlement made by Mrs Carpio against the Deceased on 1 September 1982. By her application (Exhibit 4) Mrs Carpio sought an order that the matrimonial home at 29 Albert Street, Fairfield [sic] be sold and the proceeds divided as to 75 per cent to the wife and 25 per cent to the husband. 25 In support of that application Mrs Carpio filed an affidavit sworn by herself on 10 August 1982 (Exhibit 5). That affidavit set forth in a far more succinct fashion than her principal affidavit in support of her present application the history of her marriage to the Deceased and the details of their respective financial contributions towards that marriage up to, and subsequent to, her separation from the Deceased on 10 May 1981. At least to the date of that affidavit Mrs Carpio was receiving maintenance from the Deceased in an amount of $50 a week. 26 In response to that affidavit the Deceased filed an affidavit sworn by him on 15 October 1982. That affidavit is, of course, admissible in the present proceedings, at least pursuant to section 32 of the Family Provision Act. Further, it must be recognised that that affidavit is not merely a statement made by the Deceased but is a sworn statement made by the Deceased in the course of court proceedings. That affidavit sets forth the version of the Deceased concerning the various matters upon which Mrs Carpio relied in her 1982 application to the Family Court, and also, at least to an extent, concerning the allegations now made by Mrs Carpio and her three children regarding the asserted shortcomings of the Deceased as husband and father. It is apparent from that affidavit that the Deceased and Mrs Carpio were experiencing matrimonial problems well before Mrs Carpio and the children left Peru for Australia. 27 According to that affidavit of the Deceased, not only was he paying the foregoing amount of $50 a week maintenance for Mrs Carpio and her children, but he was also giving pocket money directly to the children every couple of weeks in amounts totalling between $5 and $10 a week for each child. In addition, he said that he was giving $100 collectively to the children every six months. Further, that he maintained full medical and hospital health cover with MBF for the entire family, and that he also paid the mortgage on the house property at 29 Albert Road. 28 In that affidavit the Deceased also set forth details of money which he remitted from Australia to Peru in October 1972 for the support of his wife and their (at that time) one child; and the moneys which in the period whilst he was living in Australia from August 1976 until the arrival of his wife and their (then) three children in 1979, he remitted to Peru for their maintenance. (It is proper to record however that during the course of her evidence in the present proceedings Mrs Carpio said that these moneys received from the Deceased whilst she was in Peru were never sufficient to maintain herself and the children.) 29 The Deceased also in that affidavit set forth details of the manner in which an interest in a property at Arequipa in Peru (upon which a residence had been constructed at the expense of the Deceased) had through the intervention of the Deceased come into the ownership of Mrs Carpio. At the time of that affidavit the Deceased expressed the opinion that that house property could be sold and that the net proceeds of sale would amount to the equivalent of about $45,000. It would appear that at the time of that affidavit that house was owned conjointly by the Deceased and Mrs Carpio in equal shares. That understanding accords with the oral evidence given by Mrs Carpio in the present proceedings. 30 For reasons which did not with any clarity emerge from the evidence of Mrs Carpio in the course of the present proceedings, she did not pursue the claim for property settlement which she had filed in the Family Court on 1 September 1982. It will be appreciated that in her present claim Mrs Carpio did not volunteer any information concerning her 1982 application to the Family Court. All information concerning that application emerged whilst Mrs Carpio was under cross-examination. I shall later in this judgment return to the matter of the house property at Arequipa in Peru. 31 Evidence has been placed before the Court concerning the financial and material circumstances of each Plaintiff. I will, in due course, proceed to a consideration of those circumstance in respect to each Plaintiff. 32 However, it should here be observed that the claim of the four Plaintiffs must be approached in the light of the competing claim of the Defendant upon the estate of the Deceased. Not only is the Defendant the widow of the Deceased (it being recognised, however, that her marriage to the Deceased obtained over a period of not quite one year), but she is also, as has already been recorded, the designated object of the testamentary beneficence of the Deceased. Even had she not been thus recognised by the Deceased, the obligation of a testator to his widow is usually regarded as requiring him, to the extent that his assets enable him to do so, to ensure that she is secure in her accommodation, that she is able to live at a standard no less than that which she has enjoyed during the period of her marriage, and that she has a fund available to meet unexpected contingencies. 33 The Plaintiffs, however, submit that the marriage of the Defendant to the Deceased was a marriage in name only, that it was, in effect, a sham, having been entered into by the Deceased essentially for the purpose of enabling the Defendant to obtain permanent residency in Australia. That assertion was vigorously denied by the Defendant. A very considerable quantity of evidence throughout the three and a half days of the hearing of these proceedings was directed to this question of whether or not the marriage of the Deceased and the Defendant was a genuine marriage. 34 I have had the benefit of receiving from each of the respective Counsel appearing for the Plaintiffs and for the Defendant a written outline of their submissions. Those written outlines will be retained in the Court file. 35 After Mrs Carpio and her children left the matrimonial home in 1981, neither she nor any of her children (apart from the youngest child James, had any significant relationship with, or even contact with, the Deceased until the time of his death. 36 This lack of intimacy, indeed a deliberate separation of the children from their father, was exacerbated by the conduct of the children in renouncing their paternal surname, Roncalla, and adopting the maiden surname of their mother, Carpio, which she had apparently resumed after her separation from the Deceased. It would appear that Fred and Jenny changed their surname to Carpio in about 1984 and James about ten years later, in 1994. (Originally James intended only that the surname of his son should be changed, but the reaction of the Deceased (who regarded it as a great affront) when informed of that intention caused James to change his own surname as well, and to sever all contact with his father.) 37 Despite an attempt on the part of at least Fred and Jenny to explain that the reason for this change in their surname was due, at least in part, to perceived problems experienced by them at school by the use of the surname Roncalla, it is clear that a more important reason for the renunciation of their father's surname was a desire on the part of all three children to sever completely all connection with their father. It is apparent that this renunciation of their paternal surname was a cause of extreme disapprobation on the part of the Deceased. It was a formal recognition by each of his three children that they did not wish to have anything further to do with their father, and that, in effect, they disowned their father. 38 I now turn to the present financial and material circumstances of the Plaintiffs. Fred Carpio is presently 37 years of age. He is a married man with two children (aged 5 and 2). He is a --technician by occupation. He presently receives a net wage of $860 a fortnight, and his wife receives a government allowance of $267.94 a fortnight (making a total income between them of $1,127.94 a fortnight). His only assets consist of a Ford Falcon station wagon (to which is ascribed a value of about $3,500), furniture ($1,300), electrical goods ($4,000) and his wife's jewellery ($500). It is obvious that with fortnightly outgoings estimated to total $1,027, Fred has no potential for savings. He and his family live in rented accommodation (for which they pay rent of $470 a fortnight). 39 James is a married man with three children (aged 5, 4 and 1). He is employed as a manager, receiving a net salary of a little over $32,000 a year. His wife is employed part-time, receiving a net salary of about $13,200 a year. Their fortnightly net income totals $1,745.93. James also has a superannuation entitlement in a present amount of $6,216. 40 James and his wife jointly own a house property at 51 Lock Street, Blacktown, to which is ascribed a value of $135,000, and in respect of which there is outstanding a mortgage, presently in an amount of $89,000 (which they are repaying at $318 a fortnight). They own two motor vehicles, a 1976 Ford sedan (to which a value of $1,0000 is ascribed) and a 1991 Nissan Nomad (to which a value of $7,0000 is ascribed). Their only other assets are furniture and household contents ($2,000). 41 Jenny is employed as a technician, receiving a net fortnightly salary of $1,192. Jenny and her mother conjointly own a house property situate at and known as 51 Alexander Crescent, Macquarie Fields, which they purchased in late 1995 for $113,000. That purchase was funded by an amount of $40,000 from Mrs Carpio (that money being part of a payment received by her consequent upon proceedings in the Compensation Court), and a housing loan from the St. George Bank in an amount of $73,000 (or, possibly, $70,000: the evidence is unclear upon this point). In October 1998 Jenny purchased a new motor car, for which purpose she borrowed $36,000 from Endeavour Credit Union. In consequence of re-financing (in order to meet the payments both on the house property and on the motor car) the amount outstanding under the mortgage was at the time of the hearing somewhat under $92,000. That amount is being repaid by Jenny at the rate of $404 a fortnight. Her mother does not contribute towards the mortgage payments, which Jenny pays in their entirety. 42 Jenny and her mother reside together in that house property, and that arrangement appears to be convenient and suitable to both of them. Jenny's assets include a motor vehicle (to which a present value of $25,000 is ascribed), electrical goods ($2,000) and jewellery ($1,500). She has savings of $2,500. Jenny also has a liability in respect to a credit card indebtedness in an amount of $4,000. 43 Jenny is now the sole owner of the house property at Arequipa in Peru, which had formerly been owned conjointly by her parents. According to Mrs Carpio, she transferred her half interest in that property to Jenny, and subsequently, in 1996, the Deceased transferred his half interest in that property to Jenny. According to Jenny, she paid $3,000, by instalments, to her father for his half interest in that house property. She said that she had not seen any documentation concerning her ownership in the house (despite the fact that the Deceased took her to the Peruvian Consulate in Sydney in respect to this transaction). It would appear that Jenny's nonagenarian grandparents are currently residing in the house property. 44 Mrs Carpio is presently not in employment. However, she receives Workcover payments in an amount of $387 a fortnight (which payments she said were sufficient to cover her expenses). Her assets, apart from her interest in the house property at Macquarie Fields, which she owns conjointly with Jenny, include a 1993 Mazda motor car (to which a value of $4,000 is ascribed), household goods ($1,000) and jewellery ($300). She said that she has savings of $10. I have already referred to the fact that the entirety of the mortgage payments on the house property are met by Jenny, and that Mrs Carpio does not contribute to those mortgage payments. 45 Mrs Carpio has in recent times undergone a shoulder operation, which considerably limits her present ability for employment. She is not able to afford private health insurance. 46 It will be appreciated from the foregoing summaries of their respective financial and material circumstances that none of the Plaintiffs is in affluent circumstances. Fred is probably in worse circumstances than his mother or his brother or sister. James has (with his wife) the largest income of the four Plaintiffs, although he has family responsibilities. 47 None of the Plaintiffs has pointed to any specific need, although it is implicit in the evidence of each Plaintiff that an order for provision is being sought by each Plaintiff at least for the purpose of enhancing the relatively modest lifestyle of that Plaintiff. 48 It must at the outset be appreciated that the estate is a small one. In his affidavit of 11 May 2000 Julian Emilio Cabarrus, the solicitor for the Defendant, set forth up-to-date details concerning the estate. The funeral expenses (totalling $4,336) were paid from the amount of $44,472 held in St. George Bank, leaving a balance of $40,159 in that account. Interest has increased that amount to $40,341. On 2 December 1999 an additional asset, being a refund of income tax paid by the Deceased, was realised, and was paid to the estate, in the amount of $2,030. Mr Cabarrus believes that there is a further asset yet to be realised, being traveller's cheques denominated in an amount of $US 3,000, which would be equivalent to something in excess of $5,000 in Australian currency. Accordingly, in the estimation of Mr Cabarrus the total pool of funds available for distribution before the costs of the present proceedings are taken into account is in the order of $52,352. That amount will be significantly eroded by the order for costs which, in any event, will be made in favour of the Defendant. It was estimated that those costs would total $21,000 for a hearing occupying two days. The hearing, in fact, occupied three and a half days. In the event that any or all of the Plaintiffs be successful in the present proceedings, then the costs of any such successful Plaintiff or Plaintiffs will also be payable out of the estate of the Deceased. 49 It is appropriate that I should consider firstly the claim of Mrs Carpio. 50 It will be appreciated that that claim was first foreshadowed in March 2000, shortly after a mediation of the proceedings had not been successful. Mrs Carpio frankly conceded in her oral evidence that the purpose of her claim was to support the claims of her three children. She also said that she did not expect to receive any money out of her former husband's estate. 51 Strictly speaking, an application for provision by Mrs Carpio has not yet been made. The limitation period of eighteen months from the death of the Deceased expired on 16 July 2000. No amended summons of the nature contemplated by the consent orders of 28 March 2000 was filed before the expiry of that limitation period, or, indeed, has been filed to the present time. Nevertheless, since the claim by Mrs Carpio was foreshadowed before the expiration of the limitation period and, since leave was within that period granted to the Plaintiffs for the joinder of Mrs Carpio as a Plaintiff, and for the filing of an amended summons in that regard, then, if Mrs Carpio can otherwise establish an entitlement to an order for provision, the fact that after the foregoing leave was granted, but before the filing of an amended summons naming her as Plaintiff, the limitation period expired should not preclude her from having such an order made in her favour. 52 It has already been recorded that Mrs Carpio separated from the Deceased on 19 May 1981 and that they were subsequently divorced. For the period of almost 18 years from that separation until his death, her contact with the Deceased was for all practical purposes non-existent. 53 The evidence does not disclose for how long Mrs Carpio continued to receive maintenance of $50 a week after her separation from the Deceased. 54 It seems to me, however, to be of considerable significance that, although on 1 September 1982 she made an application for a property settlement in respect to the Auburn residence, Mrs Carpio did not proceed with that application. No adequate explanation has been offered by her for her failure to proceed with that application. The Court in the absence of any such explanation is entitled to infer (as was submitted on behalf of the Defendant) that the reason why Mrs Carpio chose not to proceed with that application was that she had already received from the Deceased (and this fact was disclosed in the Deceased's affidavit filed in opposition to her application) an interest in a house property in Peru, to which the Deceased asserted a net value of $45,000 should be ascribed. 55 The evidence originally filed by Mrs Carpio in support of her claim was far from complete concerning her financial and material circumstances either throughout the period of her marriage to the Deceased or thereafter. Whilst I have considerable sympathy for Mrs Carpio, who gave up her life and occupation in Peru at the behest of her husband, in order to transplant herself and her children to a new country, and whilst I do not in any way attempt to excuse or condone the dictatorial and unaffectionate attitude which the evidence reveals was manifested by the Deceased towards his wife and children, it seems to me that an entirely different slant is cast upon at least the financial and material circumstances of Mrs Carpio by the affidavit of the Deceased filed in the Family Court in response to her application, and the answers given by Mrs Carpio under cross-examination. 56 Since Mrs Carpio is an eligible person only within paragraph (c) of the definition of that phrase contained in section 6 (1) of the Family Provision Act, it is necessary for her, pursuant to section 9 (1) of that Act, to establish that there are factors which warrant the making of her application. 57 Mrs Carpio is the former wife of the Deceased. She had rights against the Deceased during his lifetime, the existence of which was clearly recognised no later than the date of her application for orders in respect to property made on 1 September 1982. For reasons best known to herself she chose not to pursue those rights. Thereafter she and the Deceased led separate lives, with an almost total absence of contact until his death in January 1999. 58 I am not satisfied that Mrs Carpio has established factors which warrant the making of the present application. Accordingly, even if I were to be satisfied that the present financial and material circumstances of Mrs Carpio are such as would, at least prima facie, entitle her to provision for her maintenance out of the estate of the Deceased (and I am not so satisfied), her failure to establish factors warranting the making of the application must, in any event, preclude her from obtaining such an order for provision. 59 Each of the three children of the Deceased has made a separate and independent life away from their father. Even James, who lived with the Deceased for about two years whilst he was a teenager, did not have any contact with his father for the last five years of his life. 60 Of the three children, Fred, the eldest, is in the worst financial situation. It may well be that, as was submitted on behalf of the Plaintiffs, Fred has been permanently disadvantaged by the timing of his arrival in Australia (he being aged about 16 at that time, and finding it difficult to complete his education in a new country, speaking a language with which he was largely unfamiliar). 61 Each of Jenny and James has managed to acquire a residence (that of Jenny being acquired by her conjointly with her mother). 62 I regarded as totally unsatisfactory the evidence given by Jenny concerning the manner by which the Deceased transferred to her his interest in the house property at Arequipa. Her evidence in that regard may have been intended merely to support the evidence which had on the previous day of the hearing emerged under cross-examination from Mrs Carpio. In any event it was clear that Jenny wished to keep from her two brothers the fact that her father had given to her, but not to them, his interest in the house property in Peru. Further, it should be emphasised that Jenny's interest in this property was not disclosed in any of the affidavits of herself or her mother, and was not volunteered by way of oral evidence. 63 I am not satisfied that the financial and material circumstances of either Jenny or James are such as would entitle either of them to an order for provision out of the estate of the Deceased. 64 Any order for provision an entitlement to which Fred might otherwise have established must, however, be approached in the light of competing claims upon the testamentary bounty of the Deceased. In the instant case the only such competing claims are those of his mother and his two siblings and, more significantly, the Defendant. 65 I have already referred to the submission made on behalf of the Plaintiffs that the marriage of the Deceased to the Defendant was a sham and was merely a marriage of convenience for the purpose of assisting the Defendant in obtaining permanent residence in Australia. 66 There were placed in evidence various documents from the file of the Department of Immigration and Ethnic Affairs in relation to the application of the Defendant for permanent residence. Those documents included statutory declarations from both the Defendant and the Deceased. There was also evidence given by various friends and neighbours of the Deceased concerning the extent of their knowledge regarding the marriage of the Deceased to the Defendant. There was also evidence from such persons concerning statements attributed to the Defendant, in which she allegedly admitted that the marriage was not a true marriage and had been entered into only for the purpose of enabling the Defendant to obtain permanent residency in Australia. The Defendant denied making those alleged statements. 67 It was apparent that the children of the Deceased and, in particular, Jenny, bear a considerable degree of animosity towards the Defendant. Indeed, after the death of the Deceased Jenny personally contacted, both by telephone and in writing, the appropriate officer of the Department of Immigration and Ethnic Affairs, with a view to preventing that Department from granting permanent residence to the Defendant. Jenny under cross-examination conceded that her motive in so doing was to put pressure on the Defendant to give her some money out of the estate. 68 If, as was contended on the part of the Plaintiffs, the Deceased's marriage to the Defendant was a sham or was only a marriage of convenience, then there would have been little purpose in the Deceased and the Defendant participating in numerous social activities together after that marriage (as was established by various photographs tendered in evidence), or by travelling on holidays together (it will be recalled that the Deceased met his death during one such trip). Further, and in my view most significantly, the existence of a sham marriage or a marriage of convenience would have been totally inconsistent with the conduct of the Deceased on 7 December 1998, when not only did he execute a will appointing the Defendant sole executor and sole beneficiary, but he also transferred to the Defendant, for a nominal consideration, a one half interest in the house property at Auburn. A marriage of convenience or a sham marriage, entered into for the sole purpose of enabling the Defendant to obtain permanent residence in Australia, would not have required the Deceased to have performed these two extremely important and significant legal acts. 69 I am not satisfied that the Plaintiffs have established that the marriage of the Defendant was other than it purported to be -- a valid, legal and subsisting marriage. It follows, therefore, that the Defendant must be regarded as a person to whom the Deceased owed a testamentary duty. That fact was, indeed, recognised by the Deceased himself by providing that the Defendant should receive the entirety of his estate. 70 It is appropriate, nevertheless, that I should set forth details of the financial and material circumstances of the Defendant. 71 Whilst in Peru the Defendant had for a period of 16 years to 1994 been employed by the equivalent of Telecom in its information system department. She gave up that employment when she came to Australia. 72 Throughout the period from the time when she arrived permanently in Australia in December 1997 until the death of the Deceased, whilst she was awaiting approval of her application for permanent residence, the Defendant was not permitted to work. She was totally dependant upon the Deceased throughout that period. 73 The Defendant was granted permanent residency status on 27 April 1999, and she subsequently became an Australian citizen. According to her affidavit of 26 July 1999, she intends to remain permanently in Australia, and she now considers Australia to be her home. 74 At the present time the only source of income of the Defendant is what she describes as a special benefit pension which she receives from Centrelink, now in an amount of $377.40 a fortnight. In addition, she receives from Centrelink a Family Allowance and Guardian's Allowance for her son Eddy in an amount of $177.30 a fortnight, which she has been receiving since about June 1999. The Defendant's current fortnightly expenses total $482. She has a bank account in which there is a present credit balance of $80. 75 In the motor vehicle accident in which the Deceased was killed the Defendant sustained injuries, for which she is receiving ongoing treatment. That includes consultation with a neurologist, who has referred the Defendant to a physiotherapist for continuing treatment. In addition, she has been treated by other doctors, including an orthopaedic surgeon, and she has had consultations with a psychologist. 76 The Defendant has instructed solicitors to act on her behalf in a claim for damages for personal injuries arising out of the motor vehicle accident. She stated that she did not know whether she is or will be entitled to compensation for those injuries. She continues to suffer from pain in her head, neck, both legs and knees, her shoulders and back. The Defendant has also recently been diagnosed with having a small cyst in her right breast, which her doctor believes to be benign. 77 The Defendant's son Eddy is in Year 9 at Chester Hill High School. He resides with and is totally dependent upon the Defendant. 78 The Defendant in her affidavit of 11 May 2000 states that she has made inquiries from a lawn cemetery at Areguipa in Peru concerning the cost of a memorial niche and plaque for the ashes of the Deceased. She has received a written quotation for an amount of $US 1,976 in that regard. It is her intention to comply with the wishes of the Deceased to deposit his ashes at Areguipa. 79 I have already expressed my conclusion that I am not persuaded that the marriage of the Deceased to the Defendant was other than a genuine marriage. Not only was the Defendant the person who had the highest claim upon the testamentary beneficence of the Deceased, but the Deceased by the terms of his will recognised and fulfilled that claim. 80 It will be appreciated that, in the context of the financial and material circumstances of the Defendant, any order for provision which might be made in favour or one or more of the Plaintiffs could have the practical effect of requiring the house property at Auburn to be sold. That would leave the Defendant without accommodation for herself, or for her son. (It will be appreciated that the Deceased himself recognised a degree of responsibility for the Defendant's son, paying his airfare to Australia, and providing him with accommodation in the Auburn residence.) The competing claim of the Defendant upon the testamentary bounty of the Deceased is such as, in my conclusion, will preclude any order for provision being made which will have those consequences. 81 I have already expressed the view that of the four Plaintiffs only Fred has established an entitlement to an order for provision. It seems to me appropriate, having regard to the value of the assets apart from the interest of the Deceased in the house property, that that entitlement should be recognised by a relatively small legacy to Fred, which may enable him to provide the deposit on the purchase of a modest house property for himself, his wife and their children, or may otherwise enhance his lifestyle. 82 A legacy in an amount of $25,000 would, in the circumstances of this case, be such as would not of necessity require the sale of the Auburn house property, but could be met out of the other assets of the estate. 83 I summarise, therefore, my foregoing conclusions. I do not consider that any of the Plaintiffs other than Fred has established an entitlement to an order for provision. Even if, contrary to that conclusion, any or all of Jenny, James or Mrs Carpio be regarded as having established such an entitlement, I am of the view that the competing claims, firstly, of Fred, and, more significantly, of the Defendant, are such as to preclude any such order for provision being made for Jenny, James or Mrs Carpio. 84 Further, in the case of Mrs Carpio, I am of the view that she has not established that there are factors which warrant the making of her application. A former wife is not normally regarded by the community as a natural object of testamentary recognition. Further, in the case of Mrs Carpio there were available to her rights under the Family Law Act, 1975. She was aware of those rights, and indeed initiated an application for an interest in the Auburn house. For reasons which she has chosen not to disclose to the Court, but which probably were associated with the receipt by her of an interest in a house property in Peru, she did not pursue that application. I am not persuaded that there are factors which warrant the making of the application by Mrs Carpio. 85 I have not heard any submissions as to costs. Accordingly, unless any party within seven days of the date hereof arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders: 1. I order that the Plaintiff Fred Carpio receive a legacy in the sum of $25,000 out of the estate of the late Genaro Ramiro Roncalla ("the Deceased"), such legacy not to bear interest if paid on or before 27 November 2000, and if not so paid to bear interest at Supreme Court rates. 2. I order that the claims of the Plaintiffs Jenny Carpio and James Carpio and the claim of Juana Guenilda Carpio be dismissed. 3. I order that the costs of the Plaintiff Fred Carpio on the party and party basis be paid out of the estate of the Deceased. 4. I order that the Plaintiffs Jenny Carpio and James Carpio and Juana Guenilda Carpio pay the costs of the Defendant on the party and party basis. 5. I order that the difference between the costs of the Defendant on the indemnity basis and the amount of the foregoing costs which she may recover from the Plaintiffs Jenny Carpio, James Carpio and from Juana Guenilda Carpio on the party and party basis be paid out of the estate of the Deceased.

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