Fisher v Thomson

Bosch v Perpetual Trustee Company Limited [1938] AC 463 CASES CITED : Mayfield v Lloyd-Williams [2004] NSWSC 419 Re Buckland deceased [1966] VR 404 Singer v Berghouse (1994) 181 CLR 201

PARTIES : Nicole Leanne Fisher (Plaintiff) Lucy Patricia Thompson (Defendant)

COUNSEL : Mr M Heaton QC with him Mr A Paterson (Plaintiff) Mr P Hallen SC with him Mr L Gyles (Defendant)

SOLICITORS : Maddens Lawyers (Plaintiff) Wood Fussell (Defendant)

• 14 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4274/04 NICOLE LEANNE FISHER V LUCY PATRICIA THOMSON

1 This is an action brought under s7 of the Family Provision Act 1982 in which the plaintiff, Nicole Leanne Fisher, seeks provision for her maintenance and advancement from the estate of her late father Thomas Charles Fisher (the deceased). The defendant, Lucy Patricia Thomson, was the defacto wife of the deceased from July 1988 until his death on 17 May 2003.

2 The deceased left a will dated 7 January 2003. Probate of that will was granted to the defendant on 22 September 2003. Under that will the deceased gave all his estate to the defendant. The estate is now valued at $7,586,743. In view of the large amount it is not necessary to set out the assets and liabilities at death. The deceased started, built up and ran a very successful business at Fyshwick selling power tools and workshop equipment.

3 The plaintiff was born on 17 July 1977 the only child of the deceased's marriage to Julie Anne Fisher. The plaintiff's parents were married on 21 January 1972 and separated as a result of the deceased's drunken and violent behaviour in 1979 when the plaintiff's mother took the plaintiff and went to live with her parents at Red Hill. The plaintiff's grandfather died when she was two or three years of age.

4 The plaintiff continued to live in the house with her mother and grandmother during her attendance at Red Hill Primary School and later Telopea Park High School. Neither the plaintiff's mother nor grandmother was engaged in permanent paid employment during this time and were reliant on government benefits.

5 The evidence of the plaintiff shows that her home environment during these years was less than supportive. Her mother suffered panic attacks and extreme anxiety attacks and was on medication almost constantly. She would drink to excess and overuse prescription medication so that as a young girl the plaintiff had constant worries about her mother's health. In addition her grandmother was an alcoholic and the household was chaotic and generally unhappy. This lasted for much of the plaintiff's childhood.

6 The plaintiff spent four years at Telopea High School. She moved to Narrabundah College for Years 11 and 12. She had some psychological problems and depression and lack of self-esteem caused she thinks by her depressing home life. However, things improved when her mother got a job and they moved out of the grandmother's home to a flat in Forrest.

7 Unfortunately at the end of Year 11 the plaintiff's mother started to drink again. She lost her job and was unable to pay rent. The deceased paid for the rent for a few months but ultimately the plaintiff and her mother were evicted from the flat and about six months later evicted from a house in Narrabundah. The plaintiff borrowed money on a credit card to lend to her mother for rent during the six months, but after the second eviction they moved back to the grandmother's home.

8 About a month later in around May 1997 the plaintiff was able to move and live with three friends in a shared house at Aranda. At this time she was receiving youth allowance and this was her main source of income. She continued living in the house at Aranda until August 1999 when she moved to a house in Edithvale, Melbourne rented by a friend of hers who had moved to Melbourne earlier. In 2001 the Edithvale lease expired and the plaintiff moved to a house in Richmond where she currently resides with a friend named Michael.

9 The plaintiff's parents were divorced in 1981. Following this in about 1984 the deceased married a lady by the name of Christine. This marriage did not last. The deceased met the defendant in July 1988 and commenced living with her in a flat in Fyshwick in August that year. They became engaged to be married in May 1989 but in fact never married, although they remained living together.

10 The marriage between the plaintiff's parents ended, as a result of her father's drinking and violent behaviour. After the separation of her parents while the plaintiff was a young child, she had little contact with the deceased and would see him only on two or three visits a year.

11 While in secondary school the plaintiff would see her father about twice a year at first and a little more often during her later school years. She would also communicate by phone with her father especially on key dates such as birthdays.

12 Occasional contact was maintained after the plaintiff left school. In 1998 the deceased invited the plaintiff to stay with him for her twenty-first birthday. This was the first and only occasion this happened, but there were more frequent conversations on the phone. The plaintiff discussed her move to Melbourne with her father and he agreed to guarantee her obligations as lessee if required. 13 After the move to Melbourne irregular contact was maintained between the plaintiff and her father until about six months before his death. This involved visits to Melbourne by the deceased in 2000, 2001 and 2003 and a trip by the plaintiff to Canberra in September 2002. There was also occasional telephone contact. The deceased paid for the September 2002 trip. They spent some time together and with the defendant at Mogo and the defendant drove the plaintiff back to Canberra. The plaintiff told the defendant she had systemic candida and there was discussion about the cost of medication and special foods required. The defendant suggested the plaintiff should write to her father asking for financial assistance. The plaintiff did this and rang her father for a response to be told he had discussed the letter with his doctor who said she had a simple case of thrush. 14 This disclosure led to a serious argument between father and daughter, particularly as the plaintiff had told her mother about it and her mother had rung the defendant. The defendant was angry the plaintiff had disclosed his telephone number to her mother and said to the plaintiff, "I am changing my telephone number so that you can never call me again". In fact he did not do so but the plaintiff thought he would and other than sending a letter explaining her illness and why she needed help, and a birthday card, seems to have made no effort to contact him from that time.

15 Although contact between the plaintiff and the deceased was limited, the deceased was reasonably generous in providing gifts to the plaintiff. The benefits were in the form of gifts and cash payments to the plaintiff. These included a computer, money for tickets and expenses for the plaintiff to attend 'Pearl jam' concerts in Melbourne, Adelaide and Sydney in 1998, a gold necklace and bangle for her 21st birthday and various money transfers of sums between $500 and $2,500 into the plaintiff's bank account. Both recognized and accepted the relationship but it was never close or loving.

Employment of the plaintiff 16 The plaintiff as a result of her medical problems has had problems working in her adult years. There is no evidence however that she is unable to work or that with effective treatment of her illnesses that she would not be able to engage in paid employment to an extent where she would be able to support herself. 17 The plaintiff has engaged in work on both a volunteer basis for a youth magazine and paid employment as an administration assistant, a telemarketer, and as a market researcher for Roy Morgan Research where she is currently employed, but only part time on irregular shifts. She has also recently been able to complete a Certificate 2 in Music Performance at TAFE. This course was completed last year and she combined her part time work with approximately two and a half days at TAFE.

Medical 18 The expert medical evidence for the plaintiff consists of affidavits verifying reports of four doctors and two psychologists. Strangely these reports were all given in 2004 apart from an updating report of Dr Small of March 2006, which does not indicate a new examination but rather explains the medical conditions diagnosed in 2004.

19 Dr Small in her report of 23 March 2006 lists thirteen conditions that she has diagnosed in the plaintiff. These include haemochromatosis, candida, leaking gut syndrome, depression and food sensitivities. I will not discuss these illnesses in turn; I accept that the plaintiff suffers from illnesses that may impact on her everyday life. Dr Poppenbeek the defendant's expert witness agrees her medical impairment affects her life and may be compounded by psychological factors that include psychologically induced fatigue syndrome. He does accept that haemochromatosis is a serious disorder and would affect the plaintiff's quality of life. This does not mean that the plaintiff cannot, with treatment, lead a relatively normal life. He found no basis for leaking gut syndrome. His evidence is supported by Dr Small's final report where after giving the explanations she states, "With proper treatment of all these conditions, Ms Fisher should be able to pursue a career path." It is also supported by the conclusion of Dr Kemp, a general practitioner in a report of 20 April 2004, who after reporting on a diagnosis of chronic fatigue due to Rickettsiosis states "Treatment will be with a comprehensive dietary and antibiotic program. Recovery is probable, but slow, taking between three and thirty-six months." He goes on to say that he expects, "a phased return to normal health". The diagnosis of Rickettsiosis is disputed but the conclusion remains. 20 Dr Ellims in his report of 10 March 2004 expresses a less positive view as to the quality of the plaintiff's life, stating with relation to haemochromatosis that even if the plaintiff follows medical advice 'rigorously' and receives the recommended two venesections per year "her quality of life and life expectancy... will be compromised by the hereditary disorder of iron metabolism that she has". He also states that there is an increased chance of developing other complications. Test results Dr Ellims had available indicated normal iron levels. He stated that this suggested that the venesections were effective. Dr Ellims confirms that haemochromatosis is a serious condition and that if the plaintiff does not follow his advice and have regular venesections performed she will suffer end organ damage. 21 The cost of treatment for the plaintiff's illness is expensive. The venesections she requires will cost $350.00 each. She will need three blood tests per year at $150.00 with additional consultation fees of $150.00. Psychological Health. 22 In addition to the physical disorders which the plaintiff suffers she has illnesses requiring psychological treatments. In this respect the plaintiff relies on the reports of Kate Earl of September 2004 and Dr Christopher Lennings of September 2005.

23 All experts agree that the plaintiff is suffering from a psychological condition and will require further treatment. The report of Dr Lennings states that, "Ms Fisher's psychological condition is of a young woman who does not display signs of depression as such but displays signs of an adjustment disorder which is secondary to long standing attachment problems to her childhood and adolescence." Dr Lennings believes, "that a considerable amount of improvement has occurred as a consequence of her counselling" and that the appropriate treatment for Ms Fisher's psychological problems is to continue treatment with her current counsellor. He states that, "Given that she has been seeing approximately weekly her counsellor for a couple of years now I would anticipate a further couple of years would be required". The report was given in 2004. It is no longer challenged and I accept it.

24 Ms Earl in her report places emphasis on the effect of the plaintiff's physical sickness on her psychological wellbeing. She believes that the childhood experiences of the plaintiff "have contributed to an anxious, self-critical attitude that offers little relief." In her opinion the plaintiff is likely to need psychological counselling for the next decade. Without seeing these witnesses it is difficult to form a conclusion, but I think the views of Dr Lennings should be accepted as to the length of time during which psychological assistance will be required. The plaintiff has established a good relationship with a psychologist who was giving attention at a very cheap rate and who may be prepared to continue this although I do not necessarily assume the cheap rate will continue. Plaintiff's financial position 25 The plaintiff has no assets and limited income. Whatever income she receives is augmented by Centrelink payments up to $350 per week. Matters for consideration 26 It was accepted the deceased failed to make adequate provision for the plaintiff's maintenance and advancement. The question for the court is what provision ought to be made. 27 In making this determination the following matters are significant:

a. It was not the fault of the plaintiff that she had little contact with her father in her early years. The breakdown of the marriage and to some extent his violent behaviour was the reason for this.

b. During the whole of her life until her father's death the plaintiff had no close contact with him. Even their telephone conversations were short, but then, strange as it may seem, some people do not like long phone conversations. The deceased did suggest that the plaintiff should go into his business and learn it as she might take it over one day, but she said that she was not interested in that.

c. The deceased was reasonably generous to the plaintiff in the monetary gifts and other presents he gave to her, although of course he was well able to make those gifts. On the other hand he was aware of her medical problems and general lack of funds and relatively hand to mouth existence in Melbourne and did little to help with this.

d. The large estate of the deceased. This is relevant, not because the plaintiff was accustomed to generous treatment or accustomed to some comfortable lifestyle provided by the deceased, but because it is accepted in this case that there is nothing to prevent the court from making whatever provision is required and proper and because a large estate makes it possible to provide for much more than basic needs.

e. The health of the plaintiff and her difficulty in working on a regular basis up to the present time. While the medical evidence tends to support a conclusion that with continued psychological help, the plaintiff should be able to move towards more working time and eventually full time employment if she wishes, the medical evidence also establishes that haemochromatosis is a serious condition requiring constant monitoring and attention.

f. The fact that the plaintiff has no assets and at present a minimal income.

Provision sought for the plaintiff 28 The claim put forward by counsel for the plaintiff, at least at the commencement of the case, had the appearance of an ambit type claim more familiar to industrial lawyers. He sought:

A. A sum sufficient to enable the plaintiff to purchase and pay the costs to purchase a freestanding three bedroom house in Melbourne in an area in close proximity to the city.

C. An amount sufficient to provide through capital and income a sum after tax of about $1000 per week for the rest of her life, that sum amounting to $1,400,000. This is not the figure sought at the commencement of the case which was close to double that figure. The sum of $1,400,000 was calculated on the 3% Tables and the Australian Life Tables. 29 As to a home, the plaintiff said she would like a house rather than an apartment or unit so that she could have a garden which would be suitable if she married and had children, so she could grow vegetables, so that she could keep a dog, and so that she could keep up her interest in music, especially drumming, which might annoy neighbours in an apartment block. 30 The only evidence of the cost of houses adduced by the plaintiff was quite unhelpful. It consisted of internet searches recording the "top sales" of homes and units in Richmond and Carlton in 2006 and some figures for top sales in earlier years. There are, I think, proper reasons why the plaintiff, at least while she remains single, would wish to live close to the inner city area, but evidence of top prices is not of much assistance. All the evidence shows is that record prices were paid for houses in certain streets in Richmond and Carlton varying from $1,400,000 to about $576,000 and that the close to top prices for units ranged from about $440,000 to $150,000, although there were sales above these figures. The evidence of the defendant on the housing issue was also by way of Internet searches, mainly disclosing prices for units or apartments in reasonable inner city suburbs, but mostly for one bedroom units. There were however some for two bedroom units with price ranges of between $200,000 and $350,000. I will return to this subject. 31 There is no contest about a sum in the order of $20,000 to enable the plaintiff to set up whatever house she should decide to buy if money was ordered to be provided to enable her to purchase a home and in fact I consider a sum of $25,000 appropriate. 32 I now return to the claim for housing and for a lump sum. I was referred by counsel for the plaintiff to the well known and well worn passages from the judgments in Re Buckland deceased [1966] VR 404; Bosch v Perpetual Trustee Company Limited [1938] AC 463 and Singer v Berghouse (1994) 181 CLR 201. There is no point in setting them out again. They provide the foundation principles for the working out of a claim such as this, but the principles must be related to the facts of each case. Senior counsel for the plaintiff referred repeatedly to and placed great reliance on the decision of White J in Mayfield v Lloyd-Williams [2004] NSWSC 419. An appeal from that decision to the Court of Appeal was dismissed, the Court of Appeal determining that the order there made was one not shown to be an incorrect exercise of discretion and explaining that proper provision was not to be unduly restrictive. The facts in Lloyd-Williams were quite dissimilar from those in the present case, other than that it was a claim by an adult daughter - but aged 67 not 28 - and that it was a large estate. Whatever else it does it provides no foundation for some general entitlement to an order for an amount sufficient to provide a weekly payment sufficient to cover all estimated expenses for a daughter for the rest of her life. 33 I come now to the final conclusions as to a proper order. While the defendant submitted that the plaintiff had not provided any evidence to show any problems with her present accommodation and had given no details of it, I have come to the conclusion that proper provision requires an order which includes an amount sufficient to enable the plaintiff to purchase at the least, a comfortable two bedroom apartment in an area reasonably close to the city centre. That sum may also be sufficient to purchase a house if that is what she really desires. I come to this decision primarily because of the plaintiff's uncertain health, the size of the estate of the deceased, and despite the fact that the relationship between father and daughter was anything but close. However, proper provision for advancement does not entail providing a sum sufficient to purchase a top of the range free standing three bedroom house in Richmond or Carlton, but it does require more than the ability to purchase a dull looking one bedroom unit in a recycled building. The plaintiff could, I think, have provided much better evidence on this. However, on the limited evidence available to me, I conclude that a sum of $450,000 will enable the plaintiff to purchase comfortable accommodation in the area where she wishes to live and to pay the expenses involved in such purchase. She should also have a sum of $25,000 to enable her to fit out and furnish whatever home she decides to purchase and the incidental costs of establishing a new home. I should say that I understand the plaintiff's evidence that a house would be nice if she marries and has children, but to provide for that now would be to make provision not for a contingency in its usual meaning in these cases, but for some hoped for but quite uncertain event. 34 So far as the capital sum is concerned, again the plaintiff's medical problems and, I think, her rather dysfunctional life, require an order for a lump sum, but on no basis would these considerations justify an order for a sum to provide a fund which through its capital income would provide a weekly amount necessary to provide for all possible expenses of the plaintiff without having regard to her own earning ability. She is still young, her medical problems are at present under control, she is obtaining regular assistance from a psychologist and says that she will continue to do so and she has been able to do some work on some days and spend other days at her TAFE course. The medical evidence is that she should continue to improve. The deceased, however, knew of her problems even if he was not sympathetic towards her about them. A considerable capital sum is required to enable the plaintiff to meet medical and other expenses which she has or will have as a result of her haemochromatosis, to treat her systemic candida properly, to provide cover while she moves towards more full time employment, and to enable her to live a better life than she would be able to live on an income which cannot be expected to be better than moderate even if she gains full employment. I consider that the deceased ought to have made provision for such a capital of sum and of course he failed to do so. In this matter as in housing those matters I have previously listed bear on the appropriate sum. The cases to which I have referred make that clear. I conclude that $300,000 is the proper sum. 35 It follows from this that an order should be made for provision for the plaintiff out of the estate of the deceased in the sum of $775,000. Orders

1. The plaintiff be paid from the estate of Thomas Charles Fisher, deceased, the sum of $775,000.

2. Interest be paid on such sum at the rate proclaimed for interest on legacies from 15 July 2006.

3. The costs of the plaintiff and the defendant be paid out of the estate of the deceased, those of the defendant on the indemnity basis.

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