Dakin v Floyd - [2019] NSWSC 1220 - NSWSC 2019 case summary — Zoe

NSWNSWSC

Dakin v Floyd

[2019] NSWSC 1220

Supreme Court of NSW|2019-08-20|Before: Slattery J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-08-20

Before

Slattery J

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Judgment

The Vietnam War profoundly damaged Leslie Floyd. Born in Tennessee in the United States of America, at the age of 20 he was conscripted into the US Army and sent to fight in Vietnam in 1969. Leslie ("Les" or "the deceased") met Sally Tang, the defendant ("Sally"), on R&R leave in Sydney in 1970. They married in December 1971. After some initial disagreement as to whether they would live in the US or Australia, they settled here. They had three daughters.
Throughout his life, Les appears to have suffered undiagnosed war-related post-traumatic stress disorder. The consequences of his war experience included recurrent graphic images of the deaths of fellow soldiers, guilt at surviving them, and occasional uncontrolled anxiety and anguish. By all accounts throughout his life he was an incurable alcoholic.
But everyone around him understood this well. And he was loved despite it. They dealt with and accommodated his alcohol dependence, each in different ways. But Sally finally gave him an ultimatum in 2010. She said she would only continue to live with him if he sought treatment for alcoholism. He refused and they separated that same year.
A few years later, Les met the plaintiff, Mansueta Dakin ("Mansueta"). She claims that by 2013, she and he had settled into a new domestic de facto relationship together. They lived in the same house in Taree at least until October 2017, when, after a cancer diagnosis, he was admitted to Manning Base Hospital. In November 2017, he was discharged from hospital in Taree and moved to an aged care facility located close to one of his daughters in Sydney. Les died there in April 2018.
When Les and Sally separated in 2010 they entered into a deed under the Family Law Act 1975 (Cth), s 79 to regulate the division of their matrimonial property. The deed became operative. But in an intriguing puzzle, neither sought to divorce the other. At the time of Leslie's death, he and Sally were still married.
Les made his last will in October 2006, four years before he and Sally separated. That will appointed Sally his executrix and gave all this property to her. He did not revoke the October 2006 will before his death, despite his separation from Sally and the property settlement with her. Mansueta of course received nothing under the October 2006 will. But at the time of Leslie's death, she was living in a house in Taree registered in his sole name.

[3]

Assessments of the Credibility of Witnesses

Mansueta was profoundly convinced of the righteousness of her cause. She was not at all shy about arguing the high points of her case back to cross-examining counsel. She was intensely loquacious. At times she was difficult both to control and to assess as a witness. The speed at which she spoke and her strong accent made trying to understand her a demanding exercise; adding in itself to the difficulty in assessing her credibility.
She was an honest witness, but her single-minded determination to get her point of view across distorted her evidence and impaired her overall reliability. Her account was often embellished by her enthusiasm for the truth, as she saw it, and as she feared, others did not. Her testimony was not reliable in some critical respects, especially concerning the last months of Les Floyd's life. But apart from that, it was mostly accurate.
Kelsey Stojanovski, the plaintiff's daughter, was a reliable witness of truth, who gave a clear and careful account of what she recalled. She was not prepared to venture beyond an accurate recollection of events. But her observations of her mother's relationship with Les were limited by her distance from the Taree District.
Sally Floyd, the defendant, had excellent recall of the detail of her relationship with the deceased over many years. She was plainly discomfited by the plaintiff's claim against her husband's estate. But despite that, her evidence did not lose accuracy or reliability, as under questioning she gave extensive detail of her life with the deceased. Her account of events in Les' final years was sound. The Court judged her to be a reliable witness of truth.
Kristy Leigh Floyd, the defendant's second daughter, was an excellent witness. She was an accurate and reliable observer of events concerning her father. She presented as someone well attuned to and solicitous of her father's best interests. Despite his incurable alcoholism, she maintained a surprisingly affectionate relationship with him. This was poignantly evident at times in the course of her evidence, when she became upset in talking about the final weeks of his life.
Kristy's husband, Adam Phelps, was also an excellent witness and a clear and reliable observer of events. He made sound intuitive judgments about the tensions he saw in his wife's family. He gave thoughtful support both to his wife and his mother-in-law during the instability of Les' final years.
Kimbra Neilson, another daughter of the deceased, was an accurate and astute observer of events. The Court found her to be reliable and honest in her account of the relationship between her father and Mansueta, even though she saw little of value in what Mansueta had done for her father.
The Court found Leigh Neilson, Kimbra's husband, to be reliable. He appeared to resent the claim that Mansueta was pursuing against his wife's father's estate, considering it to be entirely without merit. But that did not affect the overall quality of his evidence, which the Court mostly accepts.
Mathew Tang, a nephew of the deceased, a son of one of Sally's brothers, was a colourful witness, giving evidence in a somewhat direct and down-to-earth style. He was a reliable observer, whose evidence the Court mostly accepts.
The following is a narrative of relevant history. This narrative represents the Court's findings on the matters covered, except to the extent that the context indicates that only the parties' allegations are being recorded. For reasons of economy, this narrative does not include reference to versions of the facts that have been rejected.

[5]

Return to Australia until Retirement - 1988 to 2006

In 1988, Sally moved back to Australia. Her father was suffering from a heart condition. She wanted to be near him. By then, Les was happy to move to Australia with her, although he had been reluctant to do so earlier in their marriage.
Sally's father died in 1989. After his death, Sally, Les and the children all lived with Sally's mother until 2001.
Sally and Les made their way in various occupations in Australia. Les became a full-time bus driver. Sally worked with the Medical Benefits Fund and then obtained full time employment at Kelloggs, as a clerical administrator. With Sally's assistance, Les (often also known as "Les" to workmates and friends), also managed to obtain full-time job at Kelloggs, as a Nutrigrain cooker, a position he retained until 2006.
But in 1997, Sally became unwell. She was not able to continue working at Kelloggs. Born in 1946, by the time she left work she was only 52.
In 1998, Sally was paid $50,000 on account of her accumulated long service leave and her accrued superannuation at Kelloggs, and she received a permanent disability payout. With an eye to future financial stability, and pushed mainly by Sally, with that money, Sally and Les purchased an investment property in Banora Point, in the Northern Rivers region of New South Wales, for $130,000. Sally funded 20 per cent of this purchase. The couple funded the rest by mortgage. The property was rented out and the rental payments and their own financial contributions eventually paid off the mortgage.
In 2001, Les and Sally bought a property in Wiley Park, in South Western Sydney, for $303,000. Sally again paid 20 per cent of the purchase price of this property. They moved into the Wiley Park property together and began paying off the mortgage.
In 2002, Les and Sally purchased a permanent trailer at Nambucca Heads for $27,000 with money sourced from refinancing the Wiley Park property. They sold the permanent trailer for a significant profit in early 2006, receiving sale proceeds of about $60,000. This enabled them shortly afterwards to purchase an investment property in Taree for $235,000. Together they paid about 20 per cent of the purchase price, stamp duty and other conveyancing fees using the sale proceeds of the permanent trailer. They rented out the Taree property and continued to live at Wiley Park.
In late 2006, Les suffered a knee injury, when at work with Kelloggs. He left employment there, receiving a payout of about $200,000. Sally says he paid this sum into his "Clearview" superannuation account. There is a dispute as to how much money was actually paid into the Clearview superannuation account at this time. Sally says she ultimately received $60,000 of this money in her property settlement with Les.
Les' work-related disability forced him to take time off work. Kelloggs paid him compensation of about $300 per month. He ceased work with Kellogg's later in 2006. But in mid-2007, Les returned to the workforce with a different employer: he went back to a former occupation, working full-time driving buses for State Transit.
The time Les had away from work in 2006 and 2007 tightened family finances. Sally had to draw down on her savings to keep the family budget afloat and to cover expenses during this period.
But Les ceasing working at Kelloggs in 2006 had much wider implications for his and Sally's life. Alcohol dependent though he already was, he gave up any pretence at restrain with alcohol when he was at home fulltime. Sally says, and the Court accepts, that with little to keep him occupied he would drink so much every day that he often passed out. The alcohol often made him angry, suspicious and difficult with Sally, and actively hostile to her extended family. After several years of this behaviour in 2010, as will be seen, Sally decided that she would have to separate from Les, if he would not stop drinking to extreme levels. It had become too much for her to manage.

[7]

Separation and Property Settlement - 2010 to 2013

But lifestyle changes and indulgences did not change Les. Sally and Les had mostly lived together throughout their marriage. They had a brief period of separation early in their married life, when Sally returned to Australia and Les did not follow her.
But they separated permanently in 2010. Les' alcoholism could not be tamed. Ultimately it became intolerable for Sally. She told him that she would only continue to live with him if he sought treatment and went to Alcoholics Anonymous. He was not prepared to do this. He never moved back with her.
When Les and Sally separated, Les stayed at the Wiley Park property. Sally moved out and was immediately taken in by her daughter Kristy. Sally says, and the Court accepts, that when she left the Wiley Park property she only took her clothes with her, none of her paperwork, and nothing else of value.
Between 2010 and 2013, Les and Sally discussed a property settlement to divide their matrimonial property. They also talked about divorce. But neither of them moved to initiate divorce proceedings.
Sally explained her reason for this. She still held out hope - faint through it might be - that Les might one day return to her. She thought that he might eventually see the wisdom of seeking treatment for his alcoholism, allowing them to reconcile. Her decision not to initiate divorce proceedings was deliberate. But Les took no step to divorce her either.
In October 2013, the parties agreed upon a settlement deed for the division of their matrimonial property. Consent orders dividing it were made in the Family Court of Australia. The effect of the settlement deed and the consent orders was: (1) Sally transferred the Wiley Park property to Les and he paid her $200,000; and (2) Sally was paid $60,000 from Les' then declared known interest of $145,000 in the Clearview superannuation fund.
Both Les and Sally and their respective solicitors signed the property settlement deed. It shows every sign of having been thoroughly negotiated. A notation to the settlement deed, which the Court can infer was explained to the parties, given their legal representation at the time, was: "That the parties agree that as far as it is practicable to do so that the orders are made having regard to the provisions of section 81 of the Act with a view to determining for all time the financial relationship between the parties and avoiding further proceedings between them".
The parties to these proceedings disputed the quantum of Les' assets at the time of the property settlement. Sally contended in the proceedings that in October 2013 he had more assets than he had disclosed to her at the time. Masueta contended that the figures in the deed were accurate. At this distance there is no reliable way of testing either party's contention. But it can be said that, as both sides were legally represented, they each had the capacity to test the truth of the other's assertions, and Sally is a precise and thorough person and did not strike the Court as someone who would not have raised her suspicions at the time, if she thought that assets had been hidden from her or understated. The best the Court can do now is accept the settlement deed as it stands and all it represents, as the position at the time.

[8]

Les and Sally - 2010 to 2012

Les and Sally remained in contact after their separation. Especially during the first three years, they had an amicable relationship. Sally was living with Kristy and her husband, Adam, and their children. Les would continue to come over to join in family events at Kristy's house for Christmas and for the grandchildren's birthdays, to see the house being renovated, or just to visit.
Somewhat surprisingly, the separation evolved into a relaxed period within the family. Sally and Les would occasionally chat in the backyard together, while Les had a beer. Although they were no longer a couple, Les maintained good communications with his daughters and reasonable relations with Sally. She was interested to hear about him through their daughters, who became her bridge of communication to Les.
Les maintained considerable affection for Sally. This was often conveyed indirectly, through one of their daughters. The Court not only accepts Sally's, Kristy's and Kimbra's evidence that this was Les' attitude to Sally. The objective evidence supports the same conclusion.
For example, even well after their separation and in the last months of his life, when Les was in the Moran nursing home at Sylvania, he told Kristy to "tell your mum that she is the best". Kristy passed this message on to her mother. And Kristy refers to a text message exchange she had with her father on Mother's Day in 2017, shortly before his hospitalisation that year. That afternoon, Les wished Kristy a happy Mother's Day. Later in the day, he sent another text message on to her, requesting that she pass on to Sally the following message: "Tell Ur MOTHER!! SHE WAS THE "BEST!! AND THAT'S WHY YALL TURNED OUT 2 B BEAUTIFUL LADIES". And again she did.
The only reasonable inference to be drawn from this evidence is that, in addition to his feelings for their daughters, he held continued affection for Sally. Such affection helps explain why he did not change his will or initiate a divorce in the years 2013 to 2017.

[9]

Mansueta and Les as a Couple - 2013 to 2017

Mansueta and Les met in 2013. They commenced living together only a few weeks later at the Wiley Park property. After the Wiley Park property was sold in May 2016, they moved to the Taree property and lived together there. This took him away from proximity to his daughters and Sally. As a result, he saw less of all of them.
After Les met Mansueta, he visited the family far less often. He no longer attended Christmas Day events. He became less involved in his children's and grandchildren's lives. Les' daughters had difficulty in accepting Mansueta into their family life, which drove Les away. But the Court accepts that a continuing mutual affection existed between Les and Sally, and Les and his daughters.
Mansueta says, and the Court accepts, that from early on she undertook the significant burden of household duties at both Wiley Park and Taree. She says that, from when she and the deceased started living together until his death, she, "did all of the shopping, cleaning, washing and cooking. I was a homemaker and I made sure Les was looked after".
Mansueta's evidence can be accepted: that at the Wiley Park property Les "did not like to do cleaning in the house". Alcoholism makes Les an improbable candidate for volunteering for his proper share of domestic duties. Mansueta created a vegetable garden and generally cleaned the house. And when the time came to sell that property, Mansueta did much of the physical work, improving it for sale, including cleaning out the garage and the backyard.
After they moved to Taree, Mansueta describes a mutually shared life that seems objectively probable and her account is compelling. She made Les' favourite dishes and cooked meals for him every day. They socialised together and travelled to nearby locations and to Sydney from time to time. They went fishing. They were members of the local RSL club, where they regularly went out for dinner. There is no suggestion in the evidence that Les wanted Mansueta out of the Taree house, or that he contacted his daughters expressing a desire to return to Sydney to be away from Mansueta.
Many factors point to a de facto relationship between Les and Mansuata until about five months before his death. They lived under the same roof for the whole period. They presented to the world as a couple. Their local Taree medical practitioner supports the conclusion that Mansueta had a hands-on role in caring for Les, especially when his health started to deteriorate throughout 2017. She closely supported him during the critical period when he first received his confronting diagnosis of having a brain tumour; attending to his needs and accompanying him on hospital visits. They had a sexual relationship in the early years together.
Other day-to-day domestic and official documents assist in drawing the inference of a de facto relationship, presenting as a couple and sharing some financial obligations as a couple. For example, they took out health insurance in both names as far back as 2013, when they lived together at Wiley Park. And later, their names appeared together on a pensioner concession card. Counsel for the defendant says that they did not pool their two pension incomes into one bank account. This is strictly true but at a practical level they pooled their pensions to meet household expenditure. And as will be seen below, the hospital notes at the Manning Base Hospital and other hospitals to which Les was admitted in 2017 show that Mansueta and he were being constantly named as a de facto couple, with Mansueta being accepted as the prime point of contact for consultation about Les' medical treatment.
And Mansueta's de facto case must be judged taking into account the demonstrable reluctance on the part of the defendant's witnesses to concede, or accept, that she and Les could ever have been a de facto couple. This was quite evident throughout the testimony of many of them and Mansueta's claimed de facto status at any time was put in issue throughout the trial.

[10]

Les is admitted to Hospital - July to November 2017

In July 2017, Les was diagnosed with an aggressive malignant brain tumour, known as glioblastoma multifore (or "GBM"). MRI scans taken on 10 July 2017 showed a very significant tumorous mass in his brain. He was immediately operated on at the John Hunter Hospital in Newcastle on 11 July 2017. Post-operative histology and scans showed no residue of the tumour after its resection. Due to his excessive alcohol consumption post operatively he was not given chemotherapy but treated with radiotherapy.
Mansueta was close by Les during all this treatment. After his operation, Les was treated by the Mid North Coast Cancer Institute at the Port Macquarie Base Hospital, part of the Mid North Coast Local Health District. The hospital's records record his social history to the effect, "lives with partner Mansueta in your own home". The doctor's post-operative plan of management for Les observed, "I have discussed the further management of his right temporal lobe GBM with Leslie and his partner Mansueta".
Les finished his radiology treatment at the John Hunter Hospital on 31 August 2017. The discharge summary at the end of that treatment period notes Mansueta's advocacy and support for him: "his partner, Mansueta, is very active in pursuing help for Les including psychiatry services, contacting his orthopaedic surgeon about some bilateral foot pain, and investigating clinical trials overseas". Mansueta certainly pushed to explore all the possible options for his medical care. The contemporaneous hospital notes record, "we have referred him to Dr Livshin for a conversation about adjuvant chemotherapy, mainly at Mansueta's request, but I do feel Les has expressed an interest in having the conversation also".
The hospital medical notes from this time also incidentally reveal that Les' war service may actually have only partly contributed to his alcoholism. Les was presumably the source of the recorded information that his father was an alcoholic and his brother died of cirrhosis of the liver.
Although the resection of his brain tumour was thought to be successful in July 2017, as will be seen, the GBM cancer recurred some months later.
Les communicated by text message with his daughter Kristy when he was in hospital in July 2017. He did not immediately inform her that he had had GBM. He only communicated this devastating news to her on 20 August 2017, again by text message.
This led Kristy, her husband, Adam, and their children soon afterwards to drive up to Taree to see Les. Kimbra and her husband also came up to see him. Sally did not come. There was not enough room for Kristy and Adam to stay inside the Taree house, so they camped in the back garden with their children, combining the visit into something of a family camping adventure to keep their children engaged.
Kristy observed during this visit that each of Les and Mansueta had their own separate bedrooms in the house. Kristy was critical that the house was untidy. But it must be recognised that Mansueta was dealing with an extra load at this time, managing the additional burdens of Les' condition after his hospitalisation. A degree of disorder in the household at the time is understandable. Kimbra and Kristy went back to see Les in Taree over the long weekend in October 2017. Again they observed some untidiness in Mansueta's housekeeping skills.

[11]

Conversations with Les in Taree - September 2017

Kristy and Adam's early September visit to Taree led to the production of one piece of controversial evidence: a video of a conversation between Les, Kristy and Adam about Les' testamentary intentions. The video was taken in the garden of the Taree property, and Les, Kristy, Adam and their children are present in the video. The Court has viewed it a number of times. It is relatively short but difficult to understand, due to ambient noise and the movement of the camera and the filmed subjects. But Les probably knew he was being filmed as the video is taken quite close to him. The Court judges Mansueta's summary of what is said on the video to be accurate and these reasons treat it as such.
Mansueta's case is that the conversation recorded in this video was staged. There is substance in this contention. One particular moment was videoed. The Court does not know any other part of Kristy and Adam's Taree visit that was videoed the same way. It is to be wondered why this short exchange with Les was captured so closely. It has Kristy urging her father "to get it written out" and "signed by a JP". Kristy urges him to "get it done now….not when you are dying". The Court infers that Kristy was talking about Les making some kind of written declaration of his testamentary intentions. Les at first deflects the conversation a little and says "I will go and see a real lawyer".
Kristy's intent was then made clear to Les. She said, "make sure that when you die, the house has to be sold; $50,000 goes to her [Mansueta], and the rest go to your daughters…everything does not belong to her…".
Les' wish to see "a real lawyer" would in retrospect have been a good idea. The assumption behind this whole conversation was that Mansueta, not Sally, would be Les' primary beneficiary unless what was being urged was done. It seems to have been overlooked that Sally already benefited under Les' 2006 will. Perhaps they did not know that.
But in response to Kristy's statement "everything does not belong to her", Les says on the video, "she knows that…that's why we are having a fight". That seems to have satisfied Adam, who says, "we got it". The video soon ends, as if in confirmation of that conclusion.
This conversation with Les was clearly planned and then prompted for Kristy's purposes. Despite that, it reveals that Les intended to include members of his former family in his testamentary bounty to a substantial degree. The conversation also reveals that Les and Mansueta were already tensely debating this to the point that they were assessed as "having a fight". The Court infers that strong tensions had developed in their relationship by then.
Despite his declining physical condition, Les is hardly likely to have forgotten his 2006 will, which gave everything to Sally if she survived him. The existing will was not mentioned in this conversation. As will be seen, he had not told Mansueta about it either.
It is perhaps not surprising that Les' children did not focus on his will in 2006. Mansueta herself was unaware until after his death that he had made a will in 2006 in Sally's favour. And Mansueta assumed that the property division between Sally and Les was the end of their financial relationships.

[12]

Readmission to Hospital - October to November 2017

Les' health declined rapidly in October 2017, culminating in at least two hospital admissions following alcohol-related incidents at home. He was admitted to Manning Base Hospital on 17 October 2017 "after having a fall from intoxication". The admission history was that he "has been drinking all day and wife heard him fall over". The hospital notes from this admission are replete with references to Mansueta being his "de facto partner/carer". The social workers' or nursing notes record "lives at home with wife". His prior GBM and temporal craniotomy were noted and he was discharged on 19 October 2017.
The discharge summary from Manning Base Hospital on 19 October 2017 shows that he was suffering from dementia and mild cognitive impairment. Due to this impairment from this time on Les' expressions of his needs and desires are to be treated cautiously and as an imperfect indication of what he really wanted. But they are nevertheless significant.
But within two weeks Les was readmitted. Mansueta called an ambulance because of his suicidal ideation and recurrent falls. The hospital notes record that Les "expressed suicidal ideation and an incredible guilt surrounding death of friends - Vietnam war veteran". But during this stay he was diagnosed with moderate cognitive impairment. Diagnostic scans showed his GBM had returned. He was advised of the medical opinion that there was "no further active treatment for it".
The hospital's discharge summary then first flags what was soon to become an intense dispute that he "discussed with both his current partner and his family in Sydney". The summary records "both parties wanted to apply for guardianship and therefore an application was made to the Guardianship Tribunal and a hearing will go ahead on 4 December. In the meantime Leslie will be transferred to Karingal Gardens for respite care". Karingal Gardens is a nursing home in the Taree area.
The hospital records from this time are not obviously complete, but Les seems to have been readmitted to Manning Base Hospital in about mid-November 2017. The hospital records continue to acknowledge Mansueta as Les' de facto partner.

[13]

The Parties Launch Competing NCAT Applications - November 2017

Mansueta filed an application for guardianship of Les on 10 November 2017. She describes herself in the application as "spouse/carer" and in another part of the application as "spouse/de facto/next of kin/full time carer". The text of the application shows she lodged it in the context of being asked by staff at Manning Base Hospital where Les was going to be discharged. Her application mentions that "home not a safe environment; he had several falls".
An ACAT assessment undertaken on Les on 23 November 2017 indicated that he was eligible to receive permanent residential care and high level residential respite care.
On 10 November 2017, after a number of efforts to try and find Les, by telephone Kristy was informed that he was back in the Manning Base Hospital. On 10 November 2017, Kristy had some conversations with staff at the Manning Base Hospital. They encouraged her to apply for the financial management of Les' affairs and to apply for his guardianship. Kristy says that until this time the staff at Manning Base Hospital had not been informed that Les had any other next of kin.
But the same afternoon, Friday, 10 November 2017, Kristy received an alarming telephone call from her father. He called her and said "Nancy has left me. She has all my credit cards and EFTPOS details and she is still in my house. She has just left me here to rot. I need you to help me".
The Court accepts this conversation took place. But just what had happened between Les and Mansueta is difficult to discern. But it was an important turning point. Les was distressed about something Mansueta had done or said to him. He felt abandoned and turned to Kristy. It is the moment at which his preference to be near his old family in Sydney, rather than with Mansueta, emerged. Kristy and Kimbra acted quickly.
On 13 November 2017, Kristy filed a financial management and guardianship application. Kristy's application to NCAT was partly the result of that conversation and partly the result of acquiring knowledge of Mansueta's application. Kristy's application reveals that she had reached the view that it was in the father's best interests for her to make an application. Her application says, "he has a de facto partner who we believe is applying for similar orders".
Kimbra and Kristy were now alert to the fact that their competing next of kin status with Les was not known to the Manning Base Hospital. So they made themselves known to the hospital. Kimbra travelled to Taree on Friday, 17 November 2017. As a result the Manning Base Hospital organised a family conference for the following Monday, 20 November 2017.
Kimbra and her husband Leigh attended the family conference on Monday, 20 November 2017. Kristy joined in from Sydney by speakerphone. Kristy and Kimbra understood that Mansueta had been informed by the hospital staff of the conference. But she was not present. The meeting proceeded anyway.
A medical decision was taken at this medical conference and communicated to the family present that Les must be discharged into a nursing home in his own best interests. The family was advised that he could not go back to his home in Taree. Given the advanced state of his cancer he was not able to get proper nursing support there. Mansueta says that she thought the doctors were going to inform her about what was going to happen next with Les. Had Les's family been more consultative with Mansueta perhaps that would have occurred.
Mansueta explains her absence from this meeting. She says that the appointments that were made to discuss Les' placement were moved and that is why she was not there. She says the first that she knew about his departure is when she rang up for a visit at the Karingal gardens nursing home in Taree and was told that "he has gone to Sydney". There is other evidence that she was told of these planning meetings and yet did not appear. The Court accepts the case against her that she was informed. She did not seek for the meeting to be reconvened.
Kristy and Kimbra's recollection is, and the Court accepts, that the hospital medical staff said to them: that Les no longer needed to be in hospital; that it was not appropriate for him to go back to the house at Taree; and that from then on he would require 24 hour care at a nursing home. Kristy and Kimbra recall that the medical staff said to them that Les had expressed that he wanted to come back to Sydney to be with them. The Court accepts that Les did say such things. It is consistent with what he had said on 10 November, with some of what he said to NCAT and with the last months of his life.
The medical staff requested at this 20 November 2017 meeting that Kimbra and Kristy find accommodation for him in a nursing home in Sydney. The nursing staff indicated that in the meantime they would try and find him a place at a nursing home in Taree.

[14]

Kristy Moves Les to Sydney - Late November 2017

By Friday, 24 November 2017, Kimbra and Kristy had located a respite care place for Les at the Thomas Holt Nursing Home at Kirrawee, near Kristy's place. They paid the deposit for his accommodation. The same day staff from the Manning Base Hospital called Kimbra to inform her that Les had been moved to the Karingal Gardens nursing home in Taree.
Kimbra and Kristy moved their father to Sydney on Tuesday, 28 November 2017. Kristy says, and the Court accepts, that a nurse from Karingal Gardens in Taree informed Kristy that Mansueta was aware that Les would be moved to a nursing home in Sydney. Whilst in retrospect to avoid confusion and misunderstanding it would have been far better had Kristy tried to contact Mansueta before making the move. But she appears not unreasonably to have acted on this phone call and on a belief that her father wanted to be in Sydney with the rest of his family, rather than with Mansueta; a view which the Court finds was soundly based.
On 28 November, Kristy and Adam drove to Taree, collected Les from the Karingal Gardens Nursing Home and transported him to the Thomas Holt Nursing Home. There is no evidence that he disagreed with or resisted this course. The Court infers that he wanted to go to Sydney. Although he had been told it was not realistic, he held out the hope that he might be able to stay with one of his daughters.
The Court does not accept that Kristy and Kimbra would have been knowingly participated in an illegitimate exercise of removing Les away from Mansueta. The Court does not accept that either of them would have done that against his will or surreptitiously to defeat his wishes to stay with Mansueta. He had in conversation in Taree given Kristy permission to go forward with the plan to go to Sydney. He hoped that he might be able to stay with one of his daughters, as Sally had done, although they had made it clear that was not on the cards.
He was already in Sydney when the first NCAT hearing took place on 4 December 2017, dealing with both Mansueta's and Kristy's applications for guardianship.
Consultation with Mansueta during Les' transfer to Sydney was suboptimal to say the least. It is not difficult to see how Mansueta would conclude that he was "spirited away". That being said, the Court is of the view that it was Les' decision to leave Taree. In his final days he wanted to be close to his daughters.
It can be accepted that bureaucratic decision-making forced this separation on Mansueta and Les but in circumstances where the Court accepts he had expressed ambivalence about his relationship with Mansueta at the time of the separation, the conduct on neither side expresses a clear inference that each wanted the relationship to continue after November 2017.
Mansueta did not follow Les to Sydney. Of course it can be accepted her financial capacity to change her accommodation was constrained. Trying to get Les into a nursing home in the Taree area closer to her was another option.
It was theoretically possible for her to try and temporarily move to Sydney. She did not pursue this course either. She is on a disability pension and cannot drive. This had the result that visits to Les in the last four months of his life were less frequent than those of his daughters. And during that final period there is little evidence of Les asking to see more of Mansueta one-to-one than he did.

[15]

The NCAT Hearings - December 2017 and January 2018

NCAT held two hearings into the competing guardianship applications, an interim hearing on 4 December 2017 and a final hearing on 9 January 2018.
Les attended the 4 December hearing with Kristy and Kimbra. Mansueta was present too. NCAT gave judgment on 21 December 2017.
Important findings are set out in paragraphs [11] - [13] of the NCAT December judgment. These findings reflect what the parties actually said to NCAT: "11. Mr Floyd attended the hearing in person with Ms Floyd and Ms Neilson. Since the applications had been made Mr Floyd had moved from Karingal Gardens to Thomas Holt Village. In the documents provided, Mr Floyd expressed the view that he did not want to remain with Ms Daikin in Taree but wanted to be with his daughters and grandchildren in Sydney. 12. Mr Floyd said in oral evidence to the Tribunal that when he agreed to leave Karingal Gardens he thought he was going to live with his daughters. He did not understand he would be moved to residential care where he did not want to be. He thought he was going to live with his daughters and it was going to be, as he stated, 'like the Partridge Family'. He now wanted to return to Taree. He had seen an advertisement for a nurse that could look after a person in their home for $50.00 per hour and he wanted to pay a nurse to care for him. 13. Ms Dakin said she made an urgent application because she was concerned about the treatment that Mr Floyd had received, and would receive. In her application, she stated it was urgent for the application to be considered because the home was not a safe environment for him. She was concerned that he had been discharged from the hospital and she wanted him to receive further treatment and services. She said to the Tribunal that since she had made the application, she now wanted Mr Floyd to return to their home in Taree and she could care for him."
The NCAT December judgment records at [17] as follows: "17. The Tribunal decided that it needed to proceed to hear the guardianship applications made by Ms Dakin and Ms Floyd because Mr Floyd was at possible risk of harm because there was no a clear informal decision making process and conflict between Ms Dakin on one hand, and his daughters on the other about his accommodation. He had fluctuated in his views about where he wanted to live and with whom. He expressed clear written views that he wanted to be with his children in Sydney but now stated he wanted to return to Taree."
This is not an unequivocal statement by Les that he would like to stay in Taree. It was expressing a series of impossible preferences. He would prefer to live with his daughters as first preference and live at home Taree as second preference. But neither preference was open to him. He was too unwell to live outside a nursing home, in either place.
The best that can be said is that Les' moods were changeable; he was confused and he was likely to express contradictory opinions over time depending upon whose company he was in.
He also indicated to NCAT that Mansueta took good care of him and he wanted to be there, with a nurse living at home. But by that time, his care needs were so high that he could not live at home and needed to be in a residential facility providing him with nursing care.
Les provided a letter to the Guardianship Division of NCAT dated 18 November 2017, in which he indicated that "loved his children and his children loved him". The letter is then recorded by NCAT as saying that "he was taken away from them by the United States Army 'to fight a useless war that got so many men killed for nothing'". His war weariness is undoubted. But this must be a metaphorical account of the war's effect on his later life. His children were of course only born after the war. The letter is recorded as going on, in saying, "he trusted his children and wanted to be in their care. He wanted to see his grandchildren grow. He did not want to live with Ms Dakin": NCAT December judgment, (at [32]). In my view, this is not only what he said to NCAT but the kind of statement he was making to Kristy and Kimbra.
Before NCAT, Mansueta did advocate strongly for Les to get further treatment. Her case is that she thought that the best treatment outcomes would be achieved if Les was close to her and she could arrange for the treatment at Manning Base hospital.
It was submitted on Mansueta's behalf that this advocacy demonstrated she had not severed her relationship with the deceased but was still passionate about caring for him and advocating for the taking of every step to keep him alive. Her advocacy can be accepted. But there had been some fracture in her relationship with Les about 10 November and many factors indicate he was reasonably content to live away from Mansueta from November 2017.

[16]

Last Months - December 2017 to April 2018

Mansueta submits that "the fact that the deceased spent the last months of his life in care facilities does not sever the on-going de facto relationship with [her] until his passing". But the evidence presents a more complex picture.
Les settled into the Thomas Holt nursing home. As a result of the 4 December 2018 NCAT hearing, the NSW Trustee and Guardian was appointed as Les' Guardian on an interim basis. A final hearing was scheduled for 9 January 2018.
But Les became unsettled in December. He had a fall on 7 December at the nursing home and was transferred to Emergency at St George Public Hospital. His cognition then was very poor. Kristy remembers for the two hours that she and Kimbra were there at the emergency ward he was repeating her name, "Kristy", over and over, without being able to say much more. The current scans showed that his GBM had returned. The doctors told Kristy they thought he was close to death.
On one level, this shows how disconnected from ordinary conversational control and reality he was by then. But it also shows at another level that, despite his mental confusion, the deep emotional bonds that seemed to preoccupy his mind were those with his daughters. He was not chanting Mansueta's name.
Kristy and Kimbra informed the hospital that Les "had an ex-partner in Taree". But it is unclear how well she was informed of his very poor state of health at this time. But they were both were there throughout this crisis. One or other of them visited him every day. Their families came as well. They passed on messages from Sally. Eventually his cognition improved and he was able to talk.
His mental impairment was significant by this time. At times he was behaving quite irrationally. The Court accepts the evidence of Kimbra and Kristy, who say that Les was saying from time to time after he came to Sydney that "Nancy" had left him, or that they had separated. Such statements were probably a confused attempt to try and remember his moving away from Mansueta, rather than a very coherent description of what had happened in his relationship with her. But it also reflects the fact that if Mansueta visited him during this period, it was far less frequently that his daughters.
Just before Christmas 2017, Kristy and Kimbra arranged for him to be transferred to the Moran nursing home in Sylvania. The NSW Trustee and Guardian approved the move. Mansueta was not involved in these decisions. This is to be explained by the NCAT decision, giving interim guardianship and the right to make such decisions to the NSW Trustee and Guardian.
After the move, Kristy visited him at the Moran nursing home almost every day. Kristy and Kimbra responded when Les had a fall on Christmas day. Their families again came as well. Kristy recalls that Mansueta saw Les on Christmas night. But Kristy left to avoid Mansueta, allowing her some time with Les on her own.
Mansueta came again to the Moran nursing home on Boxing Day and saw Leigh and Adam there. She revisited the Moran nursing home on 27 December 2018. Kristy says that the nursing staff told her that Mansueta was being disruptive. It is hard to judge whether this was correct. The Court accepts that Les was somewhat upset that Mansueta had for this visit taken a taxi from Taree to Sydney to see him which had, he thought, proved very expensive. Mansueta returned to Taree.
Kimbra, Kristy and their families continued to see Les until the next NCAT hearing on 9 January 2018. As a result of that hearing, the NSW Trustee and Guardian was appointed as Les' financial manager and Guardian for a period of six months.
Mansueta says she continued to look for a possible respite care facility closer to home in the Taree area for Les to move back there and there is contemporaneous evidence that she did. But she did not push this hard to a conclusion. This was, in my view, recognition on her part that Les was expressing a desire to be close to his Sydney family. And even if she had been fully determined to carry this through, given the difficulty of managing his day to day care at the Moran nursing home in Sylvania, moving him at that stage to Taree was probably just too difficult.
So she visited him in Sydney. How regularly is disputed. The defendant's witnesses say they rarely saw her there. She says she visited regularly. She was certainly seen by Les' sons-in-law on a number of occasions. She was rarely seen by Kimbra or Kristy. They tried to avoid Mansueta's visits.
When Mansueta came down from Taree and visited Les, she undoubtedly provided comfort to him. As her counsel pointed out, there is no evidence that these visits were unpleasant or that Les was remonstrating with her for being there against his will.
But Les was not insisting that she stay in Sydney to be close by him. Counsel for Mansueta pointed to his expressions of opinion in the NCAT December interim judgment that he wanted to go back to Taree. But these statements conveyed a qualified preference to stay at home at Taree, which was unachievable, and they were contradicted by other statements and evidence at NCAT.
From the time of the second hearing until Les's death, the Court accepts that Kimbra and Kristy visited their father between them effectively every day at the Moran Sylvania nursing home. Each would not visit him necessarily every single day but he had a visit from at least one of them on a daily basis. Kristy says, and the Court accepts, that during these visits Les would ask her, "Kris can you get your mum to make some black eyed peas and corn bread?" for him. And his habit was always to ask her "How's your mom?" Sally regularly gave Kristy food she had made to take to Les. And on many occasions when Kimbra and Kristy visited their father they would bring their own families along.
The Court accepts that from time to time during this period that Mansueta visited Les but geography meant it could not be, and was not, as regular as the visits of his daughters. In my view, Sydney was where he wanted to be at that time. Les was perfectly capable of expressing strong preferences when he wanted. For example, he was stubborn about refusing treatment for his alcoholism to the point of separation from Sally. But he was not pushing to be up in Taree near Mansueta.
After Les died on 14 April 2018, with the permission of the NSW Trustee and Guardian, Kristy organise his funeral. Mansueta did not attend. But this was not her fault. She was not told of the funeral. At the formal level, responsibility for making decisions about the funeral lay with the NSW Trustee and Guardian. But at the practical level, the arrangements were in Kristy's hands. Kristy, Kimbra and Sally do not accept that Mansueta was Les' de facto at that time. So they took no step to include Mansueta at the funeral.
For a complex range of reasons, they could not reach out to Mansueta at that time. These reasons do not have to judge that decision. But its consequences were that Mansueta's non-attendance at Les' funeral should not be held against her, as evidence of some lack of respect for him.

[17]

Two Decisions Not Taken 2013 - 2017

Les failed to take two significant decisions in the last four years of his life, 2013 to 2017. By then, he had made a property settlement with Sally. He was free to divorce and remarry. He could have made another will. But he did neither.
The pressures to inaction were strong. Balancing the competing factors he decided the better course was to do nothing. The reasons for this were complicated. First, Les was very fond of his daughters. Whatever had happened in his relationship with Sally, his bond with his three daughters was still very strong. Neither decision could easily be concealed from his daughters. Actively divorcing Sally or remaking his will would have created tension in his relationship with his daughters. And by then, he certainly did not wish to treat Sally that way. He kept sending her messages to maintain a link with her. In his last months she was sending him food and offering him support, mainly through their daughters.
Secondly, what was he to do in a new will? Remaking his will was a very difficult decision. He was bound to disappoint somebody. If he gave any of his estate to Sally or his daughters in the new will, he no doubt anticipated Mansueta, with whom he was living on a day-to-day basis, would keep seeking change in her favour. If he were to give the whole of his estate to Mansueta, then his relationship with his daughters would be jeopardised. It was a no-win situation for him. Doing nothing was an obvious solution.
Thirdly, divorce created a more immediate problem for him. If he had second thoughts about marrying Mansueta, and in my view he did as otherwise he would have taken the step earlier, getting divorced from Sally was likely to bring forward a conflict with Mansueta. He would have to explain why he was not prepared to marry her. Staying married to Sally avoided that.
In my view, this complex of factors was in play. These inferences are drawn from the personalities of the people that the Court saw give evidence and what the Court thinks was their likely behaviour. The result was that Les left his affairs in a permanent state of ambiguity. But ambiguity meant relatively peaceful family relationships at a time when that was what he needed and valued most.

[19]

Claimed De Facto Relationship - Succession Act, s 57(b)

Mansueta's principal claim is that she was in a de facto relationship with Les when he died. For the purposes of Succession Act, s 57 "de facto relationship" is defined in Interpretation Act 1987, s 21C, which provides as follows: "(1) Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if: (a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or (b) the person is in a de facto relationship with the other person. (2) Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a "de facto relationship" with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. (3) Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple. (4) Meaning of "related by family" For the purposes of subsection (2), 2 persons are "related by family" if: (a) one is the child (including an adopted child) of the other, or (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or (c) they have a parent in common (including an adoptive parent of either or both of them). (5) Subsection (4) applies: (a) even if an adoption has been declared void or is of no effect, and (b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children. (6) Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order. "
Interpretation Act, s 21C(3) spells out that: no finding in respect of any of the matters in the sub-section is to be regarded as necessary for the existence of a de facto relationship; and further, a Court, in determining whether a de facto relationship exists, is to have regard to all the circumstances of the relationship and to attach such weight to any such matter as may seem appropriate to the Court.
Mansueta does not qualify in the last five months of the deceased's life, November 2017 to April 2018, as his de facto partner and she is therefore not an eligible person under Succession Act, s 57(1)(b). But before those last five months, the pair had been in a de facto relationship for about a four year period.
The Court accepts that Les and Mansueta had a mutual commitment to a shared life, during this four year period until November 2017. They chose to live together in Taree. They socialised as a couple. Les had a close relationship with Mansueta's adult daughter, Kelsey, and her husband and son. In the more limited contact he had with his daughters in this period, it was generally in Mansueta's presence.
Les and Mansueta had some interrelated financial arrangements. She was living rent free in the Taree house. They pooled resources together to purchase household groceries and living requirements. There is no evidence of them, acquiring property together or of them operating together a joint bank account. Mansueta had no independent source of income apart from her pension, which was enough to cover many of her needs. But it was used as a source of pooled income for their mutual day to day living.
It may seem unfair to Mansueta in determining that a de facto relationship ended when Les was taken away to Sydney. After all, marriages and other relationships do not end simply because one partner has been admitted to a nursing home. Such relationships merely enter a new phase, where the parties are not able to actually live under the same roof because of the disability of one of them.
But the continuation of the relationship in such circumstances can be tested in other ways: frequency and length of visitation, proximity of residence, and expressions of preference of the person in care to spend exclusive time with the more mobile partner compared with other people. Other factors will be relevant depending on the circumstances. Such factors do not point strongly here towards the continuation of a de facto relationship between Les and Mansueta.

[21]

Close Personal Relationship - Succession Act, s 57(f)

Alternatively, Mansueta claims that she and the deceased were living in a Succession Act, s 57(f) "close personal relationship" other than a de facto relationship. The elements of what qualifies as a "close personal relationship" are not defined in the Succession Act.
In the absence of a statutory definition of the concept of "close personal relationship" case law has developed, interpreting predecessor legislation. In Dridi v Fillmore [2001] NSWSC 319, (at [102]-[104]), Macready AsJ considered the elements that need to present in order for two people to be considered to be in a "close personal relationship" as then defined under a similarly structured but slightly differently worded Property (Relationships) Act 1984, s 5(1), which then used language "a close personal relationship between two adult persons…living together, one of whom provides the other with domestic support and personal care". In Dridi v Fillmore, Macready AsJ said:- "I have earlier referred to aspects of what the Act describes as a "close personal relationship". It has to be between two adult persons who are "living together". Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a "de facto relationship" concepts relating to a "couple" are not relevant. Instead the definition calls for two different links. The first is that the parties are "living together". The second is that "one or each of whom provides the other with domestic support and personal care". So far as the first requirement is concerned we are not concerned with concepts applicable to couples; the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be sharing of food or eating arrangements together. In the present case this is not important, as it seems that the parties ate together when they were both at home. The second requirement is cumulative. There must be both domestic support and personal care. In this case there is evidence of domestic support as the defendant provided for the plaintiff free accommodation and meals, which he cooked for the plaintiff when the plaintiff was at home. There are other matters, not present in this case, which could be domestic support, eg shopping for both parties, washing clothes etc."
There are differences in language between the statutory definition of "close personal relationship" in Property (Relationships) Act, s 5(1) and Succession Act, s 57(f). But because of the Court's findings below they are not of central significance in this case.
In my view, Mansueta and the deceased were, in the alternative to the Court's principal findings, not living in a "close personal relationship" within Succession Act, s 57(f). Many of the elements of a "close" and a "personal" relationship were present here, between the deceased and Mansueta, but they were not "living" in such a relationship, as s 57(f) requires, at the time of his death.

[22]

Legal Principles - Factors Warranting

Manuseta's claim to be an "eligible person" is made out on the basis that she had been a dependent member of his household: Succession Act, s 57(1)(e). The requirements of Succession Act, s 59(1)(b) are therefore engaged. It is necessary for the Court to determine whether, having regard to all the circumstances of the case (whether past or present): "there are factors which warrant the making of the application". And if there are no such factors, then the Court must refuse to proceed in respect of these bases of eligibility.
Succession Act, s 59(1)(b) only applies to certain classes of applicants who are not generally regarded as natural objects of testamentary recognition of a deceased person. This suggests that the "factors" referred to are factors which when added to facts which render the applicant an "eligible person" also give the applicant the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased person: see Re Fulop (deceased) (1987) 8 NSWLR 679, at 681 per McLelland J, and Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241, at 252E. Where persons affected by Succession Act, s 59(1)(b) have the circumstances of their relationship with the deceased set out, it can sometimes immediately be seen that they are persons who would be regarded by most observers as natural objects of testamentary recognition: Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241, at 252E.
There are factors warranting the plaintiff's application sufficient to satisfy Succession Act, s 59(1)(b). She should be recognised as a legitimate object of the deceased's testamentary bounty for several reasons.
First, the Court has found that Les lived in a de facto relationship with Mansueta for about four years. They slept in separate rooms. Whatever sexual relationship they had at an early stage, probably ceased later. But through most of their time together they lived in the same house and presented to the rest of the world as a couple. The deceased was content for Mansueta to have that status in his life for about four years. This is an important factor warranting.
Secondly, caring for the deceased in the last years of his life was an immense burden. The plaintiff undertook this task for at least four years between 2013 and 2017. The daily travails of caring for the needs, and simply tolerating the unsociable behaviour, of a man with the deceased's gross alcohol dependence, is not to be underestimated. Sally had done this for many years and ultimately found it unbearable. Mansueta then took it on for a much shorter time. However imperfectly Sally and Les' daughters think that Mansueta discharged these obligations, nevertheless she did what Sally could no longer do: facing on a day to day basis the confronting unpleasant and depressing life of a man defeated by his own alcoholism.
Thirdly, an important element of Mansueta's relationship with the deceased was simple companionship. The quality of this and of her care for him is criticised. Some of that criticism was justified. And understandably so: the plaintiff certainly has a dominating talkative personality that by all accounts did at times aggravate the deceased. And it is accepted that the deceased said disparaging things about Mansueta, when he was living in Sydney in the last months of his life.
Les and Mansueta's relationship was not free of troubles. Mansueta's kidney specialist physician noted in November 2016 that she suffers from "anxiety and depression" which Mansueta attributes "to domestic violence and abuse from her partner". Mansueta reported this to her treating specialist. It was relevant to his diagnosis of anxiety and depression. It can be accepted that a lifelong alcoholic such as Les would from time to time become abusive in a domestic situation. This is indeed one of the things that Mansueta probably had to put up with, as had Sally for so long.
But the deceased had a deep desire for companionship. He actively sought it out after he separated from Sally. He accepted Mansueta's companionship. He judged it had a net benefit to him. He also demonstrated his deep need for companionship by emphasising to his daughters before his move to Sydney that he hoped the move would result in him living with one of them.

[23]

Applicable Legal Principles - Adequate Provision

Should an order for provision be made in Mansueta's favour? The test of whether provision should be made in any case is set out in Succession Act s 59(1)(c):- "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both."
There are many judicial statements summarising the operation of what is said to be a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation:- "The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co8. The determination of the first stage in the twostage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder9, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."
Whether the two-step test operated with the same full vigour in the current legislation was discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case, which is a very clear one on the question of whether or not adequate provision has been made for Mansueta once she has been shown to be an eligible person.
Some other authorities have explained in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ in Drury v Smith, (at [153], [154], [155], [158] and [160]), which relevantly provides:- "[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" [154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." [155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." … [158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." … [160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.""
Applying these principles to the plaintiff's application, analysis begins with the financial position of the parties.

[24]

Summary of the Financial and Personal Positions of the Estate and the Parties

The financial position of each of the estate, of Mansueta, and of Sally, is not complex and is briefly summarised in this section. Mansueta's and Sally's health and personal situations are also covered here.
Deceased's Estate. The plaintiff tendered an updated Schedule of Assets and Liabilities of the Estate, marked as Exhibit D without objection in the proceedings, wherein the deceased's estate totals $375,000. This includes: the Taree property (at $330,000-$340,000); a Harley Davidson motor cycle (at $30,000); and two motor vehicles, a boat and trailer (totalling $5,000). Counsel for the defendant raised that the deceased's First State Super account (totalling $57,000) was not included in the Schedule. If this is included notionally in the assets of the Estate, the total would be $432,000.
But the $57,000 in superannuation funds can be dealt with by the Court directing how they can be dealt with in the hands of either party under the Court's ancillary powers under Succession Act, s 66 and the Court will take that course here.
It is possible that the deceased's GBM was another legacy of his Vietnam war service. A debate has been conducted for some years in the United States as to whether exposure to Agent Orange is associated with higher rates of GBM. This has not yet been recognised by the US Department of Veterans Affairs. Possible claims of this nature did not feature in the evidence and are ignored for the purposes of the Court's assessment of the parties' respective financial means.
Mansueta's Financial and Personal Position. Mansueta's present financial position is parlous. She lives at the Taree property. She wants to be able to retain this property. Her only income is a disability support pension she receives from Centrelink, in the sum of $684.10 per fortnight. From this $150 goes to meet council and water rates on the Taree property. The Court accepts Mansueta's evidence that she has no savings.
Mansueta faces significant health issues requiring on-going medical treatment. She suffers from a number of major health challenges including chronic advanced kidney disease, dental problems, sleep apnoea, permanent back injuries, gall bladder problems, cataracts, PTSD, depression, and anxiety. And her symptoms may be exacerbated by her "anxiety and depression related to domestic violence".
Mansueta's monthly expenses, covering health insurance, food, life insurance, electricity, telephone, clothing, taxis, pet expenses, garden costs, household insurance and utilities are in the order of $1,893.94. Many of these monthly expenses are directly related to her occupation of and maintenance of the security of the Taree property.
Sally's Financial and Personal Position. Sally's financial position is not strong although it is better than Mansueta's. Sally has total assets calued at approximately $112,425. These are held mostly in the form of cash but partly comprised of jewellery, furniture and an older motor vehicle. She has a monthly income of $1,862, mostly derived from the aged pension and a little from interest on savings. She has monthly expenditure in the order of $1,842. This is comprised of car running expenses, medical insurance, pharmaceutical expenses, and other miscellaneous expenses.
Sally is retired. She has managed her financial position conservatively over the years and has no liabilities. But she must secure her future as best she can. She wants to improve the granny flat where she lives with her daughter Kristy. She has started to make plans and the total cost is estimated at $60,000, and to make advance payments to Kristy to cover some of the early costs of the upgrade.
Sally suffers from ischaemic heart disease has been unwell for many years with a coronary artery disease, which has resulted in chest pain and breathlessness from time to time, despite the therapies that she is presently on to alleviate the effects of this condition.
Financial Position of Other Family Members. Evidence has not been adduced of the financial position, and any financial needs, of other family members, and in particular Les' daughters.

[25]

Adequate Provision - Analysis

In the Court's view the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life. The Court has decided that this is a case where the Court should make an order dividing the estate including the superannuation and that each party should bear her own costs out of the share apportioned to that party.
The Court has a broad costs discretion associated with making orders for provision under Succession Act, Chapter 3. Under Succession Act, s 99(1) the Court may order that "the costs of proceedings under this Chapter [Chapter 3] in relation to the estate…of a deceased person…be paid out of the estate…in such manner as the Court thinks fit". An order that a party's legal costs be paid from the estate, in conjunction with the order for provision and as part of that order, is in my view within the broad power to make orders in relation to costs "in such manner as the Court thinks fit". This conclusion is supported by the broad power to make ancillary orders that the Parliament has conferred on the Court under Succession Act, s 66 to give effect to family provision orders: "66 Consequential and ancillary orders (1) The Court may, in addition to, or as part of, a family provision order, make orders for or with respect to all or any of the following matters for the purpose of giving effect to the family provision order: … (l) any other matter the Court thinks necessary. .."
Costs inclusive family provision orders have been made in cases which require them: see Taylor v Farrugia [2009] NSWSC 801, (at [70] and [71]). As Brereton J explained in Taylor v Farrugia (at [70]), such orders may be very useful where the alternative may leave the parties vulnerable, for example, to movements in the value of properties, which may be productive of injustice. This kind of order is particularly apt for small estates such as the present: Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney [2013] NSWSC 1520.
The Court, in determining costs orders in family provision cases, will consider the overall justice of the case: Singer v Berghouse (1993) 114 ALR 521, at p 522, per Gaudron J. Here the overall justice of the case can be best expressed by such an order as the Court proposes, dividing the estate.
The parties have co-operated in limiting their legal costs. For a case with some of the complexities of this they have done that very well. Mansueta's legal costs assessed and limited by agreement on the ordinary basis and the indemnity basis is $60,000. The defendant's costs are $50,000 on the ordinary basis and the indemnity basis.
In my view, the proper way to assess this case is to give due recognition to the fact that Mansueta's de facto relationship with Les had come to an end by sometime in November 2017 and Mansueta has on the basis of the Court's findings a significant call upon his testamentary bounty. She is an eligible person. She has been left without adequate provision from the deceased's estate. She has high medical needs. She needs a fund for future accommodation if it is not to be Taree. Due recognition must be given to their relationship between 2013 and 2017 and the fact that Sally had the benefit of a property settlement in 2013.
On the other hand, Les' decision not to change his will and not to seek a divorce was not accidental. These represented ties that he thought went beyond the property settlement with Sally. Those ties also represented to him his fond relationship with his daughters.
This case represents a very difficult balancing exercise of these competing interests. The plaintiff should not be treated as equivalent of a de facto wife at the time of death. But she should be treated well for years of sacrifice. Doing the best the Court can, the Court has reached the view that Mansueta should be awarded 55 per cent of the whole of Les' estate and Sally should retain 45 per cent. This should be on an inclusive of cost basis for each. For the purposes of calculating the estate the parties will be ordered to account as among themselves for the presently disputed superannuation monies in the same proportion. Each party can then pay their legal costs out of their own share of the estate, including the superannuation.
There may be Calderbank letters to be considered arising out of this decision and the Court will grant liberty to apply should that be required. Otherwise this will dispose of the whole proceedings.