(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(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.
31 It is interesting to observe that the foregoing nine matters, which were part of the new section 4 inserted in the Act by the amending legislation of 1999, reflect (albeit not in precisely identical words) the ten factors referred to by Powell J (as he then was) in Roy v Sturgeon (1986) 11 NSWLR 454 at 459.
32 Subsection (3) of section 4 provides,
No finding in respect of any of the matters mentioned in subsection (2)(a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
33 In the instant case the relationship between the Plaintiff and the Deceased obtained from at least the return of the Deceased to Australia in 1967 until his death more than thirty-two years later. Throughout that period the Auburn property was the common residence of the Plaintiff and the Deceased for several days and nights each week. The Deceased had his own keys to that property, and kept his clothes there. He and the Plaintiff shared a bedchamber. A sexual relationship existed between the Plaintiff and the Deceased throughout the entire period of the relationship.
34 In financial matters the Plaintiff and the Deceased largely kept their affairs separate. They did not conduct any joint bank account. Nevertheless, the Plaintiff on at least one occasion advanced to the Deceased a not insignificant amount of money. Exhibit G is an acknowledgment from the Deceased that he had on 29 January 1998 received from the Plaintiff an advance of $5,000, "to be paid back on demand". In addition, the purchase of gold bullion and diamonds (to the existence and acquisition whereof I shall later in this judgment return) was, according to the Plaintiff, in the nature of a joint acquisition by herself and the Deceased.
35 There was a considerable quantity of evidence as to the mutual commitment of the Plaintiff and the Deceased to a shared life. The Plaintiff herself gave direct evidence in that regard. There was also evidence from John Pollock, who had become acquainted with the Plaintiff in 1976, when he moved into the house next door to the Auburn property, and resided there for a year or so. He has maintained his acquaintance with the Plaintiff to the present time. Through the Plaintiff he became acquainted with the Deceased. Mr Pollock said that he recalled the Deceased on one occasion saying to him concerning the Plaintiff, "I love her so much I would kill myself if anything happened to her". There was evidence, from Mr Pollock as well as from the Plaintiff herself, of maintenance work performed by the Deceased upon the Plaintiff's residence.
36 It is only a small matter, but the Plaintiff and the Deceased conjointly acquired a canine pet, "Fifi", to which both of them appear to have been strongly attached.
37 Neither the Plaintiff nor the Deceased had any children.
38 The Plaintiff performed for the Deceased normal household duties, such as cooking, washing and ironing clothes, whilst the Deceased was in occupation at the Auburn residence. It was the evidence of the Plaintiff that when the Deceased became ill towards the end of his life the Deceased stopped making visits to his residence at Greenacre. He was attended at the Plaintiff's Auburn residence by the Home Nursing Service. The Plaintiff purchased all his medications from the local pharmacy and she cared for the Deceased until he entered hospital.
39 On the occasions when they travelled or holidayed together, the Plaintiff and the Deceased held themselves out as being a couple. Indeed, the Deceased himself on occasion proffered, and answered to, the surname Dunk. When the Plaintiff was having problems concerning structural work performed at the residence next door to the Auburn property, not only did the Deceased complain to the Auburn Municipal Council in that regard, but he also was interviewed by the local newspaper. In an article published in the issue of that newspaper on 5 June 1991 the Deceased is referred to throughout as "Mr John Dunk" or "Mr Dunk", and it appears from that article that the Deceased used the surname "Dunk" in his communications on that topic with the Auburn Council. In that article the Auburn property is, in fact, referred to as the Deceased's house. The Deceased appears to have perceived no problem in being regarded as the spouse of the Plaintiff, and in using the same surname as the Plaintiff.
40 According to the Plaintiff, since her arrival in Australia she has always called herself Mrs Dunk, although she has never been married. She occasionally called herself Mrs Donnelly, if circumstances made it appropriate for her to do so.
41 In disputing the existence of the alleged de facto relationship between the Plaintiff and the Deceased, the Defendant relied upon the fact that the parties did not occupy the same residence for seven days a week. I have already expressed my conclusions in that regard.
42 Further, the Defendant points to the fact that the Plaintiff during the lifetime of the Deceased was in receipt of a single pension from the Department of Social Security, and that she never disclosed to the pension authorities the fact that she was, as she asserts, in a de facto relationship with the Deceased. Under cross-examination she frankly admitted that she did not want the Department of Social Security to know of the existence of that relationship, and agreed that she and the Deceased deliberately "worked the system" to get money from the Department of Social Security. That conduct on the part of the Plaintiff reflects no credit upon her. However, it is not determinative of the question whether or not a de facto relationship existed between herself and the Deceased.
43 I have been taken by Counsel for the Defendant to the recent decision of the Court of Appeal in Marshall v Carruthers [2002] NSWCA 47. The essential matter with which the Court of Appeal was concerned in that case was whether the provision made by the testator in favour of his de facto widow was at the time of the determination "inadequate for the proper maintenance, education and advancement in life" of that plaintiff. In that case, which was a claim by a de facto widow of a testator, Young CJ in Eq said [63]
However, the strength of the claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion, also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship.
44 As I read that judgment, the element of commitment to mutual support which, in His Honour's view, adds strength to a legitimate claim, is not determinative of the existence of a de facto relationship. In Marshall v Carruthers there was no dispute that the relationship existed. Such commitment is, however, a legitimate matter to be taken into consideration (in the light of section 4 of the Act) in determining whether or not a de facto relationship existed between the present Plaintiff and the Deceased.
45 The Defendant also relies upon the somewhat strange conduct of the Plaintiff in choosing not to be involved in the necessary arrangements for the disposition of the Deceased's remains after his death (she being with him at the hospital when he died) and her absence from the Deceased's funeral as supporting the non-existence of a de facto relationship between them. In light of the Plaintiff's explanations of that conduct I do not agree with the Defendant's submission in this regard.
46 Despite the foregoing submissions on the part of the Defendant, I am satisfied, in all the circumstances of this case, that a de facto relationship obtained between the Plaintiff and the Deceased from the time when the Deceased returned to Australia in 1967 until his death more than thirty-two years later.
47 In consequence, therefore, the Plaintiff is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standing to bring the present proceedings. In the light of the conclusion which I have just expressed, it is not necessary for me to deal with the alterative submission on behalf of the Plaintiff that she is also an eligible person within paragraph (d) of the definition (being a member of the same household as the Deceased, and being partly dependent upon the Deceased). However, were it necessary for me to do so, I would incline to the view that the Plaintiff is also an eligible person under paragraph (d) of the definition.
48 It will be appreciated that the Plaintiff is the only eligible person in relation to the Deceased. There was no suggestion made on the part of the Defendant that the sole beneficiary, Mr Barry Donnelly, was an eligible person.
49 In a claim under the Family Provision Act it is necessary for the applicant to establish, if she can, that she has been left without adequate provision for her proper maintenance and advancement in life. This is he first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 per Mason CJ, Deane and McHugh JJ.
50 It must be emphasised that it is incumbent upon an applicant for an order for provision to place before the Court as fully and as frankly as possible all information concerning the financial and material circumstances of the applicant.
51 The Plaintiff's only significant asset is her Auburn residence. That property is unencumbered. To it the Plaintiff has ascribed a value of about $180,000. In her original affidavit evidence the Plaintiff disclosed other assets, being an amount of about $20,000 on deposit with Westpac and about $1800 in various bank accounts. Her income consists of the age pension ($380 a fortnight) and an English pension (about $800 a quarter); that is, a total income of about $503 a fortnight.
52 Until, in a response given by the Plaintiff during the course of cross-examination, there was unexpected reference to gold bullion and diamonds held by her in a safe deposit box, the impression given by the Plaintiff to the Court was that she had no assets other than the house and its contents and her own personal effects and the foregoing amounts in banks. There was no very precise evidence concerning the expenditure of the Plaintiff.
53 The unexpected reference by the Plaintiff to the gold bullion and diamonds (a topic concerning which none of the legal representatives appeared to have had any previous knowledge) resulted in it being necessary for the hearing to be adjourned for more than two months, to enable additional evidence to be placed before the Court. That additional evidence revealed that the two diamonds had a total second-hand valuation of $3,229, and that the present value of the gold bullion was $25,018.
54 The inspection of the contents of the safe deposit box which took place during the period of the foregoing adjournment also disclosed the presence therein of an amount of $6,925 in cash. It would appear that the Plaintiff had forgotten about that cash fund at the time when she swore her previous affidavits. In her affidavit of 24 September 2002 she said (at paragraph 3) that she was surprised that there was that cash amount in the box, and that she had indeed forgotten about the box at the time of swearing her earlier affidavits. During the period of the adjournment the Plaintiff used some of the moneys from that cash fund to pay various outstanding accounts (including council rates, water rates, house insurance, grass cutting, electricity, gas and telephone) and an amount of $3,508 in respect to disbursements incurred in the present proceedings. Of that cash fund there remained about $2,000 at the time of the resumption of the hearing on 4 October 2002.
55 Further, material from building contractors revealed that the Auburn property is in need of quite significant maintenance work and repairs. An estimation of the cost of such maintenance and repairs was given by an architect on behalf of the Plaintiff in a total amount of $40,418. My reading of the evidence of a structural engineer, a building consultant and a building inspector filed on behalf of the Defendant is that essential repairs would cost about $13,400. That figure would not include painting, carpeting, a new bathroom and relocation of an outside privy (all of which are somewhat curiously described by the building inspector as being of a "cosmetic" nature or purpose).
56 In approaching the claim of the Plaintiff the Court must take into consideration any competing claims upon the testamentary bounty of the Deceased. The only such competing claim is that of Mr Barry Donnelly, the sole beneficiary. I have already recorded that the Defendant has made a partial distribution to Mr Barry Donnelly in an amount of $83,000.
57 The evidence from the building contractors and the photographs of the Auburn property disclose that the Plaintiff's residence is falling into disrepair and is extremely shabby in appearance. During his life the Deceased contributed to the comfort of the Plaintiff's home. He is no longer present to do so. It is apparent that the Plaintiff lives in modest circumstances.
58 The Plaintiff has a pressing need for maintenance and repair work to be performed on her house property. In addition, at the age of eighty, she requires a fund which will be sufficient to meet unexpected contingencies, and to improve her obviously very modest lifestyle. The appropriate total amount in my conclusion is $100,000. That will be sufficient to meet the necessary work on the Auburn house ($40,418) and to provide a fund (about $59,500) for unexpected contingencies and for enhancement of the Deceased's lifestyle.
59 Mr Barry Donnelly, who had little contact with the Deceased during the latter part of the Deceased's lifetime (especially since the death of their mother in 1982), is in receipt of a married age pension of $676 a fortnight. His only assets consist of the interim distribution of the estate ($83,000), 505 shares in NRMA, a Subaru sedan motor car valued at $17,500, and an account with Endeavour Credit Union in an amount of $25,000. Mr Donnelly and his wife reside in rented accommodation, for which they pay $380 a fortnight. Mr Donnelly was born on 24 January 1934 and is sixty-nine years of age. Both he and his wife are in comparatively good health. In his affidavit evidence Mr Donnelly expressed a wish to purchase a suitable family residence in the area in which he presently resides (being Chevron Island in Queensland). The purchase of a home unit in that location would cost about $120,000, whilst a house would cost about $200,000. He also expressed a desire to have some fund of savings.
60 It should be emphasised that it is for the Plaintiff to establish her own case upon its own merits. Mr Barry Donnelly, as the sole beneficiary under the will of the Deceased, does not have to prove anything. The competing claim of Mr Donnelly upon the testamentary bounty of the Deceased can have the effect of reducing, or even extinguishing, an order for provision an entitlement to which the Plaintiff might otherwise have established. That competing claim of Mr Donnelly cannot have the effect of enhancing the claim of the Plaintiff.
61 Nevertheless, I do not consider that claim as being of a particularly high order. It is relevant to the nature of that competing claim that Mr Barry Donnelly had little contact with his brother after 1982. Further, in respect to that competing claim I regard it of considerable significance that the Deceased had shortly before his death given instructions to a solicitor to prepare a fresh will under which the Plaintiff should be the sole beneficiary, and which should make no provision for Mr Barry Donnelly, and that it was only the fact that the Deceased did not thereafter leave hospital which prevented such will from being made and executed. Further, since Mr Barry Donnelly is not an eligible person in relation to the Deceased, had such a fresh will been prepared, Mr Barry Donnelly would have received no benefit thereunder, and would not have had the standing to bring any claim for provision out of his brother's estate.
62 Mr Barry Donnelly has already received a partial distribution in the sum of a little over $83,000. If the Plaintiff receives a legacy of $100,000 from the amount of about $140,000 presently available for distribution, Mr Barry Donnelly will receive the balance of about $40,000. Thus he would receive from the estate of the Deceased a total amount of about $123,000. With that amount he would be enabled to purchase as a residence a suitable home unit in the locality in which he presently resides (the price of such a home unit, according to his affidavit of 14 June 2001, being $120,000; I note that in his later affidavit he speaks of the price of a suitable villa or duplex being in the range from $125,000 to $180,000). In any event, however, I do not consider that the competing claim of the beneficiary is such as would have the effect of reducing, let alone extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise have established. I consider that she has established an entitlement to a legacy in the sum of $100,000, and I propose so to order.
63 I make the following orders: