By a summons filed within the time limited by section 58 of the Succession Act 2006 NSW, and claiming the status of a "de facto" spouse of the deceased within the meaning of section 57(1)(b) of the Act, Victoria Barbara Huxtable ("the plaintiff") applies to the Court for a grant of family provision relief under Chapter 3 of the Act from the estate, or notional estate, of David Michael Hawkins ("the deceased"), who died on 19 August 2015 aged 54 years.
The deceased left a will dated 13 May 2013, probate of which was granted to his eldest child, Harry ("the defendant"), on 8 April 2016.
The deceased was married only once, to Katrina. They separated in or about late 2011.
There were three children of the deceased's marriage to Katrina; namely:
1. a son, the defendant, now aged about 23 years.
2. a second son, Thomas (Tom), now aged about 21 years.
3. a daughter, Naomi, now aged about 20 years.
By his will, the deceased appointed a solicitor, Mr CJ Mills, and the defendant as executors and trustees; he gave a legacy of $25,000 to Naomi; and he divided the residue of his estate between his three children in equal parts, to be held on trust for them until the age of 23 years.
Mr Mills renounced probate on 25 February 2016, leaving the defendant to take a grant alone.
The deceased was a Qantas Airline pilot by profession and a hobby farmer. His father, before him, was a Qantas pilot. His son Harry (the defendant) is intent upon pursuing a similar career path. The Qantas connection was a substantial one for the deceased. His lifestyle was structured around his job as a Qantas pilot, operating at a senior level of responsibility.
The deceased's actual estate at the time of his death comprised a rural property at Crookwell and a Qantas loss of licence insurance policy. At the time of swearing an executor's affidavit on 21 April 2016, the defendant estimated that the deceased's estate had an estimated value of $1,710,944.00, with liabilities estimated to be $1,202,280.00, leaving a net estate valued at $508,664.00.
The parties are agreed that, in addition to his actual estate the deceased left a "notional estate" comprising the value of a superannuation interest held by the deceased, including death benefits. At the time of swearing his executor's affidavit, the defendant estimated that notional estate had a net value of $905,323.00.
On that basis, the "pool of assets" available for satisfaction of a claim for family provision relief was estimated by the defendant to be worth approximately $1,413,987.00.
There is no real dispute between the parties about the size of the deceased's estate, and property available for designation as notional estate, although uncertainty attends the parties' estimates of value because of anticipated tax liabilities.
Having been liquidated, the deceased's actual estate comprises, in gross, bank account credits totalling approximately $898,000.00, subject to liabilities estimated to total about $246,000.00, leaving a net estate of the order of $652,000.00.
The property available for designation as notional estate is estimated to have a net worth of about $859,000, including an amount of $748,093.00 distributed to the deceased's children (each receiving $249,364.33).
Roughly speaking, the "asset pool" available to satisfy the plaintiff's claim for family provision relief, as well as to allow the deceased's children (the competing claimants on the bounty of the deceased) to retain provision made for them by the deceased is of the order of $1.5 million at the outside, subject to claims for costs totalling nearly $300,000.00 (over $100,000.00 on the plaintiff's side and nearly $200,000.00 on the defendant's side) .
The partial distribution of $748,093.00 of the deceased's superannuation entitlements was made to his children by instalments paid on or about 30 November 2015, 23 December 2015 and 17 March 2016 respectively.
Reserving their respective entitlements to make submissions about costs, the parties anticipate that there will be substantial agreement about the form of orders to be made in the event that (over the opposition of the defendants) an order for family provision is made in favour of the plaintiff. The burden of any family provision order in favour of the plaintiff is to be borne by the deceased's children in equal shares.
The costs incurred by the parties, in their prosecution and defence of these proceedings, are very high. In part, that may be because the plaintiff prepared a broader case than that ultimately pressed. However, it appears in large measure to have been a product of over-zealous attempts on both sides of the record to prove, or disprove, the jurisdictional issue lying at the heart of the proceedings; namely, whether, at the time of the death of the deceased, he and the plaintiff were "living together".
The complexity attaching to that issue is, in large measure, a function of: (a) the peripatetic life lived by the deceased as an airline pilot and the constraints affecting the plaintiff (as a single mother of three young children of her own), each impacting upon the time available for personal contact; and (b) the proximity of the deceased's marriage breakdown to his new relationship, with the plaintiff, involving adjustments to lifestyles and family expectations.
The plaintiff was born in October 1976 and is now aged 41 years. She was recently divorced (with three young children) at the time she and the deceased first met in August 2012. She had received property from her ex-husband in a matrimonial settlement, and looked to him for assistance with expenses associated with maintenance of the children; but she was the primary carer of the children, sustained in large measure by substantial loans made to her by her parents and by income earned from part-time work as a teacher.
Informality in documentation of the parental loans provided an occasion for the defendant to attack the plaintiff's credit but not, in my assessment, an effective answer to the general nature of the plaintiff's claim - supported as it is, particularly, by corroborative evidence about the nature and quality of her relationship with the deceased.
She is, and was at all material times, a teacher by profession, with an aspiration for further study (perhaps in law). Throughout the time of her relationship with the deceased she worked part-time but, literally a day or so before he died, she gave up her job; and she subsequently experienced difficulty in obtaining suitable employment.
[3]
AMBIT OF THE PARTIES' DISPUTE AND THE NATURE OF ITS RESOLUTION
Leaving aside challenges made by the defendant to the plaintiff's credit-worthiness and to the adequacy of her disclosure of her financial circumstances, the central issues for determination by the Court are: First, whether the plaintiff can establish that she is an "eligible person" within the meaning of section 57(1)(b) of the Succession Act; secondly, whether (as required by section 59(1)(c) of the Succession Act) she has been left without adequate provision for her proper maintenance, education or advancement in life out of the estate or notional estate of the deceased; and, thirdly, whether she can persuade the Court, in the context of section 59(2) of the Act, that there "ought" to be an order for provision to be made for her maintenance, education or advancement in life out of the estate or notional estate.
Given the absence of any provision for the plaintiff in the deceased's will, the parties' attention was primarily focused on the first and third of these questions, not overlooking generosity of the deceased towards the plaintiff during the course of their relationship or the plaintiff's own resources.
The focus of attention on the first of the questions was concentrated on the question whether, at the time of the deceased's death, the plaintiff and he were "living together" within the meaning of section 57(1)(b) of the Succession Act, read with section 21C(2) of the Interpretation Act 1987 NSW.
On one view, the difference between the parties on this question is whether (as the plaintiff contends) an admitted, intimate personal relationship between the plaintiff and the deceased (which developed within a short time of their respective marriage breakdowns, when they were respectively re-ordering their lives generally in the wake of a marital breakdown), involving them spending time together at various locations and at various times tailored to meet the demands of their joint and several lives, had matured into a relationship of mutual commitment to a shared life, in which their two lives can be said to have "merged", in the sense spoken of in earlier cases.
In part, the plaintiff appears to have been motivated in these proceedings by a felt need to establish her moral legitimacy as the deceased's partner, pushing against an equal and opposite felt need of the deceased's children to deny her that status, reserving the deceased wholly to themselves. Through the defendant, they do not concede that the relationship between the plaintiff and their father ever did, or was ever destined to, move beyond a casual relationship as "girlfriend and boyfriend".
The task for the Court is to apply legislative criteria to facts properly found on evidence placed before the Court by the parties.
Upon an assumption that the plaintiff has satisfied the jurisdictional requirements of section 59(1) of the Succession Act, the defendant approached the third question - referable to section 59(2) of the Act -methodically by reference to the criteria for which section 60(2) of the Act provides.
He contended that the plaintiff's relationship with the deceased was relatively short, with intermittent personal contact. He contended that the deceased's primary obligations were to his own children, and he pointed to an agreement or understanding between the plaintiff and the deceased that the deceased would not be liable to provide financial assistance related in any way to the plaintiff's children. He also pointed to the relatively small size of the deceased's estate when divided between his three children, those primarily entitled to call on his bounty. He contended that the resources available to the plaintiff, including support from her parents, suggest that she is not well placed, in effect, to call upon the deceased's children for family provision relief - especially as decisions made by her about investments and the education of her children (including decisions made after the death of the deceased), were decisions voluntarily made by her.
He acknowledged that the plaintiff did provide financial assistance to the deceased (totalling $72,550.00), but observed that the deceased repaid some of what he borrowed from her (by regular weekly instalments of $200.00) and she was repaid the balance by his estate. He observed that, during the period of his relationship with the plaintiff, the deceased was generous to her in paying for holidays, gardening assistance, babysitting fees for her children and contributions to her living expenses. He observed, also, that the deceased's will was made after the commencement of the personal relationship between the plaintiff and the deceased, evidencing a continuing commitment of the deceased to his children, taking priority over any commitment to the plaintiff. He contended, finally, that, to the extent that the plaintiff may need financial assistance, she can, and should, look to her parents and her ex-husband without diminishing the testamentary provision made by the deceased for his children.
There is substantial force in each of the defendant's objections to the plaintiff's case; but, on a review of the whole of the evidence, I conclude that they are at their strongest in limiting the quantum of relief to be granted to the plaintiff, not in denial of her entitlement to claim relief. I am satisfied that the plaintiff is an eligible person within the meaning of section 57(1)(b) of the Succession Act and, accordingly, that the jurisdictional requirement of section 59(1)(a) of the Act is satisfied. I am also satisfied that the plaintiff has been left without adequate provision for her proper maintenance, education or advancement in life from the estate or notional estate of the deceased, so satisfying the jurisdictional requirement specified in the Succession Act, section 59(1)(c).
The plaintiff invites the Court to award her a legacy of $275,000.00 out of the estate or notional estate of the deceased. The defendant's primary case is that the plaintiff should be awarded nothing. His secondary case is that she should be awarded a legacy of no more than $50,000.00.
Taking into account the nature and duration of the personal relationship between the plaintiff and the deceased; decisions made by the plaintiff in her purchase of a house at Killara in anticipation of a long-term relationship with the deceased and her substitution of it with a house at Thornleigh after the death of the deceased; her profoundly disappointed expectations, and unemployment, in the wake of the deceased's unanticipated death; the close personal relationships between the deceased and his children, relationships of profound importance to him; and the personal circumstances generally of the plaintiff (a single mother of three young children, approaching middle age, not without assets but with debts and limited income and opportunities) and each of the deceased's children (young adults starting out in life with limited resources) I find, upon an exercise of the discretion for which section 59(2) of the Succession Act provides, that the plaintiff ought to be granted a legacy of $75,000.00 for her maintenance, education or advancement in life.
In selection of that figure, I specifically do not lay at the feet of the deceased's estate any responsibility for funding private school fees incurred by the plaintiff, an element of the plaintiff's claim which, in my assessment, over-reaches any "duty" (however described) the deceased might be thought to have assumed, or otherwise to have had, to make provision for the plaintiff.
Counsel for the plaintiff contends, with some force, that the duration and quality of the plaintiff's relationship with the deceased was such that, had the deceased died intestate, she would have had a primary entitlement to his estate under the Succession Act. However, he did not die intestate, and his testamentary intentions are entitled to respect.
A primary impediment to any grant (or any substantial grant) of family provision relief in favour of the plaintiff is the entitlement of the deceased's children to be provided for by their father, as in substance, he intended that they would be. The respective claims of the plaintiff and the deceased's children on the bounty of the deceased are in direct competition.
In what follows I elaborate key elements in my reasoning towards my conclusion that the plaintiff should be given family provision relief limited to an award of $75,000.00.
[4]
DE FACTO RELATIONSHIP - "LIVING TOGETHER" : Succession Act, sections 57(1)(b) and 59(1)(a)
A jurisdictional requirement for the making of a family provision order is that the Court be satisfied that the plaintiff is an "eligible person" within the meaning of section 57(1) of the Succession Act: section 59(1)(a).
Section 57(1)(b) of the Succession Act defines as an eligible person "a person with whom the deceased person [in respect of whose estate or notional estate family provision relief is sought] was living in a de facto relationship at the time of the deceased person's death".
The expression "de facto relationship" is defined in section 21C(2) of the Interpretation Act 1987 NSW, and (as regards the concept of "a relationship as a couple") elaborated in section 21C(3) of that Act, in the following terms (with emphasis added):
"(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."
The component of the definition of "de facto relationship" critically at issue in these proceedings is the concept of "living together". The plaintiff and the deceased were not married to one another or related by family. They were in a relationship; and (as the defendant concedes) they did present themselves to family and friends as a couple. Throughout their relationship their living arrangements were unsettled, as they accommodated their respective work and family commitments, endeavoured to spend as much time together as possible and planned for the future, always conscious of the deceased's aspiration to live on a farm. At the hearing of the proceedings the defendant accepted that they were "a couple" and that they did enjoy a loving relationship with one another (which he described as a "boyfriend/girlfriend" relationship), but he disputed that their relationship ever constituted a relationship as a couple "living together".
By virtue of section 57(1)(b) of the Succession Act, the question whether there was a "relationship as a couple living together" is directed to the time of the deceased's death on 19 August 2015.
The defendant, uncontroversially, drew to attention several authorities bearing upon the meaning of the expression "relationship as a couple living together". In doing so, he accepted the plaintiff's submission that a de facto relationship may exist even though a couple may cohabite together only for a few days each week, or not all for periods of time when the demands of life intervene, a submission grounded upon observations of White J in Vaughan v Hoskovich [2010] NSWSC 706.
Relying upon Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 at [196], and noting that an appeal from that judgment was dismissed at [2016] NSWCA 62, he observed that, although the test of "living together" is not primarily locational, it has an important locational element.
He emphasised that, in essence, a "de facto relationship" involves "the merger of two lives" (NSW Trustee and Guardian v McGrath [2013] NSWSC 1894 at [18]) and a "personal commitment that is mutually acknowledged and of an emotional kind transcending the mere fact of [a] shared residential setting" (Petersen v Gregory [2007] NSWSC 8 at [11]).
Accepting that "the significance of a common residence, in determining whether a de facto relationship exists, depends on its nature and extent" (Hayes v Marquis [2008] NSWCA 10 at [78]), the defendant emphasised the following extract from the judgment of Hallen AsJ in Thompson v Public Trustee of NSW [2010] NSWSC 1137 at [82]:
"Whilst the concept of a de facto relationship is complex and diverse, such a relationship can, and should, be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleepover at one another's house; and also from the relationship of two people, who share a house, but who do not have a romantic commitment to each other and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to relieve hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared life. It is also different from simple companionship."
Had Smoje v Forrester [2017] NSWCA 308 been decided at the time of the hearing of these proceedings, the defendant might also have drawn attention to the following observations of the Court of Appeal at [42]:
"Whilst the state of living 'together' does not require that the living occur at and from a single place, or that the two adults spend all their time together at the same place, it will ordinarily include elements of interaction and sharing whilst engaging in activities associated with occupying the same place. Repeated visits for a singular purpose, without more, do not satisfy that description."
Substantial emphasis was placed by the defendant on a quantitative assessment of the time spent by the plaintiff and the deceased in each other's company, and in remote contact one with the other, relying heavily upon Amprimo v Wynn [2015] NSWCA 286 at [45] and [67]-[69]; contending that the focus for attention should be confined to a consideration of time spent at the Crookwell farm; and, by a detailed (contestable) analysis of telephone records, criticising the plaintiff's evidence as exaggerated and unreliable.
The nature, extent and purpose of times spent together, and apart, are undoubtedly material to characterisation of a couple's relationship; but, in the context of this particular relationship, a purely quantitative analysis, as focussed as the defendant would have it, is apt to be misleading. Although section 57(1)(b) of the Succession Act requires proof of "a de facto relationship at the time of the [deceased's] death", and the concept of "living together" generally involves a locational element, exploration of the existence and character of the parties' "relationship" can, and should, range more widely than a focus only upon the Crookwell farm as a "shared home" at or about the point of death. It is necessary to view the relationship between the plaintiff and the deceased through the prism of their ongoing personal commitments over time - in the case of the plaintiff, a need to discharge her role as primary carer of young children; in the case of the deceased, his need to fulfil his work commitments (including completion of a retraining programme) for Qantas and his need to stay in touch with his children, young adults in need of reassurance.
The fact that the plaintiff and the deceased spent time together at the Crookwell farm only irregularly, and generally then at times when the plaintiff's children were elsewhere in the care of their father, does not preclude a finding that the plaintiff and the deceased were "living together" as a couple in a de facto relationship. The farm was a place of refuge, not an everyday residence. The deceased did engage with the plaintiff's children across a range of activities (including time at the farm, family dinners, sports events and attendances at a fetê, etc) even if, as was the fact, both he and the plaintiff looked forward to their free time together, at the farm or elsewhere.
The facts that: (a) at no time during their relationship were the plaintiff and the deceased formally engaged to be married; (b) their contemplation of a formal marriage was not tied to a precise timetable or an inevitable eventuality in a continuing relationship of equivalent commitment; and (c) they were content to enjoy the present and the foreseeable future without the formal bonds of matrimony, are material factors upon a consideration of whether there was a de facto relationship. They are not decisive, though. By definition, the field of operation of a de facto relationship lies outside a formal marriage. The legislative criteria found in section 57(1)(b) of the Succession Act, incorporating section 21C(2) of the Interpretation Act, provide the focus for attention.
The plaintiff and the deceased met on 13 August 2012 when introduced by mutual friends. They went out on a first date on 19 August 2012. They enjoyed each other's company for exactly three years until the deceased's unexpected death. From shortly after they met, and throughout their relationship, they were on intimate, romantic terms, with no suggestion, on either side of the relationship, of a competing love or sexual interest. During the course of their relationship, it grew in maturity. That growth was predicated upon an early exchange between the plaintiff and the deceased in which she said to him, and he said he understood, that she did not want "to start anything" if they were "never going to be married" because "one day" she wanted "to be married again". Theirs was not a casual fling. Neither pressured the other towards a formal marriage but, jointly and severally, they consistently had it in contemplation.
At the time of their first meeting each of the plaintiff and the deceased was trying to reconstruct life after a marriage breakdown experienced, in each case, within the past year or so. The plaintiff was living, with her three young children, in her parents' home at Killara. The deceased was living in rental accommodation in Queenscliff.
A month or so after they met, in about September 2012, the deceased moved from Queenscliff to a one bedroom, rental apartment at Kirribilli. Between September 2013 and March 2014 or thereabouts he rented instead a house in Manly. Thereafter, when in Sydney, he stayed at various casual addresses (a "B&B" at Paddington, various "Meriton" serviced apartments and hotel accommodation) as a means of facilitating his work as a pilot, including (between July - December 2014 or thereabouts) training during irregular hours for accreditation as a "A380" pilot.
Throughout the time of the relationship between the plaintiff and the deceased, his Sydney residences were essentially residences of convenience, subordinated to the peripatetic lifestyle to which he was obliged to submit as a Qantas pilot. His preferred place of residence was (between August 2012 and September 2013 or thereabouts) a farm he rented at Mudgee and (from March 2014 or thereabouts) a larger farm he purchased at Crookwell. The plaintiff regarded the farms, first, at Mudgee and, then, at Crookwell as their "shared" homes, with the deceased's Manly house not far behind them in status insofar as she spent a substantial amount of time there with the deceased, their respective schedules permitting.
When the deceased moved from Kirribilli to Manly in September 2013, and when he purchased the Crookwell farm in about March 2014, he sought, and obtained, the plaintiff's assistance in setting up house, deferring to her particularly in establishing the kitchen. From time to time she visited, dined with, and fed the deceased at each of his more transient residences; when he stayed at a serviced apartment, with a double bed, she regularly stayed overnight. In assisting him to establish homes at Manly and Crookwell, she was an integral, active presence and a regular occupant of the home.
From about April 2013 his search for a rural property to buy was a joint project, a shared experience. The Crookwell farm was augmented by the deceased's purchase of adjoining land in about March 2015. The plaintiff moved some of her grandmother's furniture and other gear there and, she says and I accept, that the deceased spoke of them getting married there at an indefinite, future time. A friend introduced to the deceased by the plaintiff (Stephen Cormio) deposed to a conversation with the deceased in mid-2015 in which the deceased spoke of the farm as the place where he and the plaintiff would "end up after Tori's [that is, the plaintiff's] children grow up".
In October 2014, on her own account but in consultation with the deceased and in anticipation of marriage to him at an indefinite, future time, she purchased a house at Killara, taking out a second mortgage as a source of funds to assist him in the payment of substantial credit card debts he then had. She lent him $40,000.00 on 25 October 2014, and a further $30,000.00 on 25 November 2014; on 5 April 2015 she lent him another $2,550.00. The defendant caused this money to be repaid from the deceased's estate on or about 21 December 2015.
In late 2016 and early 2017, the plaintiff sold her Killara home and purchased a less commodious one at Thornleigh, recognising that the Killara property was beyond her financial capacity to retain. The Thornleigh house is in need of renovation. It is subject to a substantial mortgage.
The relationship between the plaintiff and the deceased moved quickly into a serious engagement characterised by mutual introductions to their respective parents; progressive presentation to friends and family as a couple; joint holidays, with and without the plaintiff's children; talk of future marriage, both privately and in the presence of others on the plaintiff's side; stolen time together when their separate commitments allowed; and (throughout the relationship) frequent contact by telephone, text messages and emails when apart.
The plaintiff's father (a veterinary surgeon) deposed to a relationship with the deceased akin to that of a father and a son-in-law, aided by assistance the older man was able to give the younger one in managing cattle, first, at the Mudgee farm and, later, at Crookwell (as well as care for pet animals). The deceased presented himself to the plaintiff, her family and friends as the plaintiff's partner, with an intention to marry her within a few years. In mid-2015 he spoke to a friend and former neighbour of the plaintiff (Cameron Tully), in express terms, about his intention, within months, "to put a ring" on the plaintiff's finger.
The perception of the plaintiff, her family and friends that she and the deceased were in a committed, long-term relationship was not shared by his children or by work associates of the deceased. He was more circumspect with the people in that side of his life than he was on the plaintiff's side, at times downplaying his relationship with the plaintiff, declaring an intention never to remarry, sometimes suggesting (contrary to the fact) that his relationship with the plaintiff was at an end or that he wished it to be at end, and expressing regret at the breakdown of his marriage. He did not introduce his children to the plaintiff for about a year after the commencement of his relationship with her. When he rented the Manly house, there was, for a time, a pattern of family dinners there. There was, in time, contact between the plaintiff (and, to a lesser extent, her children) and the deceased's children; but, from the perspective of the deceased, it was never as much or as casual as he hoped, in time, it would become.
There is no evidence of any attempt at reconciliation between him and his wife, who had apparently re-partnered. Nostalgia or regret about past events (both of which the deceased, from time to time, experienced in adjusting to his new domestic circumstances) do not a reconciliation make. The deceased was emotionally bruised by the experience of a failed marriage; but he was, equally, happy in his relationship with the plaintiff and focused on their future together.
The defendant relied upon an email sent by the deceased to his father on 23 March 2015 as evidence suggestive of coolness in the deceased towards the plaintiff. Selectively quoting from the email, the defendant relied upon a statement in the email in the following terms: "For me, a little at a time every now and then is good. I'm the same way with Tori [the plaintiff]".
Read in context, this email lends support to the plaintiff's case. The deceased was trying to explain to his father why he needed space from his father's evident need for regular contact. He explained that he enjoyed, and needed, time alone - even from Tori. Had his relationship with the plaintiff not been good, and known by his father to be good, this gentle rebuff to a well-meaning father would not have worked.
In cross examination, demonstrating a maturity beyond his years, the defendant conceded that, when his father told him that he only saw the plaintiff irregularly as he was passing through Sydney, that was not correct.
Something of the painful nature of social adjustments within the deceased's family is illustrated by the following text message (with editorial adaptation) sent by the defendant to the deceased on 4 January 2013:
"Dad I'm happy for I'm happy you have found someone. It just hurts that it took so long for you to tell me and the way you told me was not fair. It's a big deal, Christmas or up at the farm you had many opportunities to tell me. It wouldn't have ruined anything as I already knew about it, I was just waiting for you to tell me yourself. And it just scares me that it happend [sic] so quickly, you blink for a second and you will miss something. I've [got] so much going on as well, trying to find where I fit into everything, family, friends… It all is so hard to deal with especially when it's all at once. The one thing that I make sure with myself and the people around me is that I try my best to make people happy and if they arnt [sic] do what I can to make them. I'm glad your [sic] happy, I'm glad you have found someone, yes one day I would love to meet her, but for the moment I just have to step back and take everything in, and evaluate my position with it all. Please take care, please look after this person, hold onto her and don't let her go. We all need someone, dying alone is my biggest fear. I love you, always will no matter what decisions you make, for you are my fat her and always will be."
I accept that the deceased from time to time downplayed his relationship with the plaintiff when speaking to his children and to his long-time Qantas connections. He was embarrassed about the breakdown of his marriage, and possibly about the speed with which his relationship with the plaintiff had developed. He was anxious to maintain a loving relationship with his children, each of whom he (correctly) believed was at an age when adjustment to their parents' new domestic arrangements was a challenge. When speaking of his living arrangements, present and future, he tended to temporise with them, at the same time endeavouring to introduce them slowly to the new reality of the plaintiff in his life.
A measure of his anxiety about maintaining his relationship with the children was his complaint to the plaintiff, from time to time, that his estranged wife was turning them against him.
A measure of his ongoing commitment to his children can be found, first, in his nomination of them in December 2012 as beneficiaries of his superannuation entitlements and, secondly, in his making of a will in their favour in May 2013. Another measure, pointing in the same direction, might be his expressed reluctance to be responsible for payment of private school fees for the plaintiff's children, a reluctance fully understood and accepted by the plaintiff as appropriate.
Despite the deceased's concern to ensure that he did not assume primary, financial responsibility for the plaintiff's children he did involve himself in their lives (attending sporting events, fetes and the like), including to the extent of providing them with pocket money. Considerably younger than his own children, they were more readily accepting of him than his own children were in accepting the plaintiff. They referred to him, from time to time, as their "stepfather"; that is how they described him to their school friends when sharing news of his death.
In evidence of the deceased's Qantas associates adduced by the defendant, there are suggestions that the deceased explained his personal relationship with the plaintiff as limited to a relationship of sexual gratification and convenience. "Boy talk" of that character did not represent the reality of his relationship with the plaintiff, whether viewed from her perspective or his. It was, perhaps, more a reflection of the culture of the Qantas workplace than anything else, a culture which the plaintiff says (and I accept) the deceased told her he wanted to keep at a distance, preferring a quiet life (with her), preferably at his farm.
By all reports, the deceased was an honourable man. For the better part of three years he and the plaintiff maintained a loving, intimate, monogamous relationship during which he held out to her, her family and friends that, in time, he intended to marry her. He actively engaged with her parents and her children on that basis. He intermingled his and her financial affairs at least to the extent that, without security, he borrowed $72,550.00 from her (causing her to take out a second mortgage over her Killara residence for his benefit) for the purpose of payment of his credit card debts, with repayments by way of weekly $200.00 instalments. He also contributed to household expenses. When he acquired a rental property at Manly and purchased a farm at Crookwell he invited the plaintiff to organise the kitchen. He allowed her to move into the Crookwell property items of everyday personal property, including her grandmother's furniture, a fridge, a ping-pong table, tupperware and cutlery. He involved her, generally, in furnishing the Crookwell property. The deceased had a key to the plaintiff's house at Killara; she had a key to his properties at Kirribilli, Manly, Mudgee and Crookwell; and a key to the short-term serviced apartments in which he stayed from time to time in Sydney.
As the deceased knew, and accepted, the plaintiff hailed from a conservative, church-going Christian family; knowing this, he affirmed his commitment to her in a conversation of October 2014 to which the plaintiff's cousin (Helen Paynter) deposed. The general pattern of the relationship between the plaintiff and the deceased bespeaks of a shared life inconsistent with a commitment-free arrangement for casual sex.
The defendant's case, ultimately, focuses upon questions of quantity of contact, rather than quality of relationship and works backwards from that to suggest that the relationship between the plaintiff and the deceased lacked the requisite character of a "shared life".
As advanced by the defendant, it is altogether too mechanistic an approach. It disregards the availability of objective explanations for constraints on the amount of time the couple were able to spend together: he was juggling work commitments (including, for some months, a rigorous A380 training programme) and attempting to manage his relationship with his children; she was preoccupied with her responsibility as the primary carer of three young children, at the same time working part-time. In all this, we know as an objective fact (because the defendant himself conceded as much) the deceased was not entirely frank with his children about the nature and extent of his relationship with the plaintiff.
That the relationship between the plaintiff and the deceased went beyond a mere relationship of boyfriend-girlfriend is confirmed by their interaction at the level of every day living. Certainly, they enjoyed the froth and bubble of a romantic life; he took her on holidays, and out to dinner, at his expense. However, at a much more mundane level, he regularly contributed to her household expenses; he allowed her to have the key to his various residences; he allowed her to organise his kitchen and (including times when he was in self-imposed isolation training for his A380 accreditation) to prepare routine meals for him; on occasions, he collected the plaintiff's children from school; from November 2014, his mail was redirected to her address. They had shared custody of family dogs, at least one of which was nominally owned by his daughter Naomi; sometimes they lived with the deceased, at other times with the plaintiff, and, when they were together, with them both. From time to time they had spats (as friends, lovers and family routinely do), but their relationship was continuous, not marked by any termination short of the deceased's death.
In my assessment, and I so find, the plaintiff and the deceased, at the time of his death, had "a relationship as a couple living together" within the meaning of section 21C(2)(a) of the Interpretation Act 1987 and, by virtue of section 57(1)(b) of the Succession Act she has standing, under section 59(1)(a) of that Act to apply for a family provision order. They did have a mutual commitment to a shared life, and their lives did merge, as they lived across their several residences, with a formal marriage explicitly within their contemplation.
[5]
EVALUATIVE JUDGEMENTS : THE WISE AND JUST TESTATOR, AND COMMUNITY STANDARDS, RELATIVE TO THE PARTICULAR CASE : Succession Act, sections 59(1)(c) and 59(2)
In approaching the legislative criteria for which sections 59(1)(c) and 59(2) of the Succession Act provide the Court must endeavour to place itself in the position of the deceased, and to consider what he ought to have done in all the circumstances of the case, treating him for that purpose as wise and just, rather than fond and foolish (In re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Company Limited [1938] AC 463 at 478-479; Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 at 19-20; Hills v Chalk [2008] QCA 159; [2009] 1 QD R 409 at (40) and [139]), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and, generally, consulting the criteria set out in section 60 of the Act.
Approaching that task, the court must appreciate that the words "adequate" and "proper" in section 59(1)(c) of the Succession Act - implicitly incorporated in section 59(2) of the Act through its use of the word "ought" and the close connection between sections 59(1)(c) and 59(2) - must always be relative to the facts of the particular case: scales Scale's Case (1962) 107 CLR 9 at 19.
By their nature, family provision cases are generally fact-sensitive involving, as they do, evaluative judgements based upon the facts of the particular case known to the Court at the time of decision.
This time perspective contrasts with that required in the determination of whether the plaintiff is an eligible person to make a claim for family provision relief. The eligibility question focuses on the existence of a de facto relationship at the time of the deceased's death: Succession Act, section 57(1)(b). The questions required to be addressed by reference to sections 59(1)(c) and 59(2) of the Succession Act require a focus on the time of decision.
One must be conscious of shifts in time perspective when analysing the facts of the current case.
The plaintiff and the deceased commenced their relationship, which became very serious very quickly, in August 2012; at a time when the deceased, in particular, was emerging from marital strife. In December 2012 the deceased nominated his children as beneficiaries of his superannuation entitlements. In May 2013 he nominated them as beneficiaries in his will. Between April 2013 and March 2014, he involved the plaintiff in a search for a farm to purchase, his Shangri-La. When the Crookwell farm was purchased in March 2014 the plaintiff was actively involved in setting up "house". At the farm the deceased spoke to the plaintiff about their prospective marriage there. By October-November 2014 (about the same time the plaintiff purchased a house at Killara in anticipation of marriage to the deceased) he was sufficiently close to her to borrow $70,000.00 from her to pay his personal credit card debts. In mid-2015, he spoke, freely and openly, to a longtime friend and neighbour of the plaintiff about his intention to marry her. All the while, he developed a familial relationship with the plaintiff's father.
These events all occurred during the deceased's lifetime.
After his death other events occurred which must be taken into account. For example: the defendant, as executor of the deceased's estate, repaid the plaintiff the $72,550.00 the deceased had borrowed from her and returned to her personal property she had at the Crookwell farm; the plaintiff experienced ongoing difficulties in obtaining employment; under financial pressure, she sold her Killara property and bought a lesser house at Thornleigh; the Thornleigh property, home to her and her young children, is in need of renovation; on the other hand, the deceased's children, beginning to make their way in the world, are in need of family support typical of young adults.
In making the evaluative judgements required by section 59 of the Succession Act, the Court must endeavour to adopt the perspective of the deceased, attributing to him the character of a wise and just person conscious of current community standards, taking into account facts which, because they post-dated his death, were unknown to him. In evaluating competing claims on his bounty, the Court must pay due respect to each claimant's needs and available resources, and to the deceased's testamentary intentions as expressed in his will and superannuation nomination.
[6]
(IN)ADEQUACY OF PROPER PROVISION : SUCCESSION ACT, SECTION 59(1)(c)
For the purpose of section 59(1)(c) I am satisfied that the plaintiff has been left without adequate provision for her proper maintenance, education or advancement in life out of the estate or notional estate of the deceased. It is not altogether surprising that, in the early days of his relationship with the plaintiff the deceased made no provision for her in his will or in his nomination of beneficiaries entitled to his superannuation, in each case favouring his children. The fact remains, though, that his relationship with the plaintiff quickly, and steadily, moved towards a marriage-like relationship in which (as illustrated by her borrowing money to fund repayment of his credit card debts and by his contribution to her living expenses) resources were shared.
She is not without assets of her own (assets with an estimated net value of $800,000, most of which is tied up in her house), but neither is she without substantial debts, a mortgage debt in excess of $550,000.00 and a large debt owed to her parents. The deceased was generous in his treatment of the plaintiff (and her children) but, having made no provision for her in his will, and having conferred no superannuation benefits upon her, she is entitled to a finding (for the purpose of section 59(1)(c) of the Succession Act) that she has been left without adequate provision for her proper maintenance, education or advancement in life. The parties' relationship progressively deepened after the deceased made his superannuation nomination, and his will, in favour of his children; the lives of the plaintiff and the deceased became more closely intertwined, financially and otherwise.
My finding that the plaintiff has been left without adequate provision for her proper maintenance etc. is made notwithstanding that, following the deceased's death, the defendant caused the plaintiff to be repaid what she had lent the deceased. In purchasing and mortgaging the Killara property (with the deceased in mind) she over-committed herself financially, giving rise to financial pressures not fully alleviated by her downgrading her residence to her present Thornleigh property, a house which stands in need of renovation. In the aftermath of the deceased's death, she found herself without stable employment.
[7]
A DISCRETIONARY AWARD OF PROVISION? : Succession Act, section 59(2)
A large question, to which the parties devoted greater time and energy, is whether the Court should exercise its discretionary power under section 59(2) of the Succession Act in favour of the plaintiff and, if so, what quantum of provision "ought" to be the subject of a family provision order in her favour.
In the abstract, the plaintiff's claim for a legacy of $275,000.00 can be justified by reference to the various expressions of need (principally, but not only, a need for a reduction of mortgage debt and renovations to her Thornleigh house) despite her possession of assets with a net value of $800,000.00 or thereabouts.
The defendant attacked the plaintiff's claim on several fronts. He criticised her as a person who prefers to buy a house, rather than to rent one; as a mother who would prefer to send a child to a private school than to a public one; and as a person who would want a new car rather than to make do with a second-hand one. He also challenged the authenticity of her evidence that she owes as much as $175,000.00 or thereabouts to her parents.
There is an element of factual truth in the defendant's criticism of the plaintiff as a person with aspirations to strive for what she perceives to be a better life for herself and her children; but, more sympathetically expressed, those criticisms implicitly acknowledge a determination on the part of the plaintiff to protect and advance family interests by what appear, to her, to be prudent choices.
Despite criticism of informality attending the plaintiff's accounting for intra-family loans, I accept the substance of her evidence about the nature and extent of her parents' assistance and her determination to repay them moneys advanced.
As a single mother of three young, dependent children with limited resources and limited opportunities for employment (assuming it to be available), her finances are in a precarious state, notwithstanding that she receives social welfare support for the children and "child support" payments from her ex-husband.
Criticism of her claim of $275,000.00 as larger than what is reasonable, having regard to the duration of her relationship with the deceased and other factors, is not wholly unwarranted. However, a larger problem with it is that it cannot be met without operating as a charge on provision made by the deceased for his children in anticipation of them endeavouring to establish themselves as young adults.
It is not necessary to dwell at length on the personal circumstances of the deceased's children. None of them have significant assets, beyond bank balances which reflect interim distributions made to them in administration of the deceased's affairs. The defendant is studying to become a commercial airline pilot (a career with substantial financial burdens in a training phase before uncertain success) and planning marriage. Tom is training to be a paramedic; Naomi, a childhood educator.
In all the circumstances, weighing the competing claims of the plaintiff and the deceased's children on his estate, my finding is that the plaintiff should receive a legacy out of the estate, or notional estate, of the deceased limited to $75,000.00.
[8]
CONCLUSION
In final submissions, at my invitation, counsel for the plaintiff proferred the following form of orders as appropriate in the event of a finding that the plaintiff be granted family provision relief (to which I add my quantification of that relief in the sum of $75,000.00):
1. ORDER pursuant to section 59 of the Succession Act 2006 NSW that provision be made for the plaintiff out of the estate of the late David Michael Hawkins ("the deceased") by way of a legacy in the sum of $75,000.00.
2. ORDER that the burden of the provision be borne by the residue of the estate to which the defendant, [Tom and Naomi] would otherwise be entitled under clause 7(b) of the deceased's will dated 13 May 2013.
3. ORDER that the plaintiff's costs be paid out of the estate on the ordinary basis.
4. ORDER that the defendant's costs be paid out of the estate on the indemnity basis.
Before making any orders to give effect to these reasons for judgment, I propose to allow the parties an opportunity to make submissions about the form of the orders to be made, and about costs.
[9]
EDITORIAL NOTE (23 Feburary 2018)
Having allowed the parties an opportunity to make submissions about the form of the Court's orders, and costs, Lindsay J made orders substantially in accordance with those set out in paragraph [100] of his Honour's reasons for judgment.
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Decision last updated: 23 February 2018