Hughes v Charlton

Supreme Court of NSW|2008-05-19|Before: Miss J

CITATION : Hughes v Charlton [2008] NSWSC 467

CATCHWORDS : Family Provision. Claim by person as de facto partner or in a close personal relationship with the deceased. Held only close personal relationship. - Claim dismissed as sufficient provision made by deceased.

PARTIES : Juanita Claire Hughes v David Hamilton John Charlton and Peter John Halliday

SOLICITORS : Roger Wilkinson for plaintiff Priest McCarron for defendants

1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

5228 of 2006 JUANITA CLAIRE HUGHES v DAVID HAMILTON JOHN CHARLTON AND PETER JOHN HALLIDAY JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Allan John Halliday who died on 24 April 2006 aged 68 years. The deceased was survived by the plaintiff who claimed to have been living with him as his de facto partner and his son the defendant. The son was the child of the deceased's marriage to Susan Lauder who died before the deceased. The deceased made his last will on 9 February 2004 under which he provided that the plaintiff should have the right to reside in his property at Fitzgerald Avenue, Smithtown for her lifetime or until she ceases to permanently reside in the property. He also gave her a motor vehicle and a legacy of $5,000. The residue of his estate went to his son, Peter Halliday. In the event of the right of occupation of Fitzgerald Avenue ceasing, the property would pass as to one half to the deceased's son, Peter and one half to the deceased's surviving nieces and nephews. Estate of the deceased 2 The present net value of the estate is $836,029. This includes the deceased's home the subject of his bequest to the plaintiff worth $200,000, his property at Smithtown Road, Seven Oaks where the defendant lives worth $460,000 and a farming property valued at $120,000. The balance of the estate consists of stock plant and other personal property. The costs involved in the proceedings on the part of the defendant amounts to $49,000 and the plaintiff $44,000. Family history 3 The deceased was born on 24 September 1937. The plaintiff was born on 11 July 1945. According to the plaintiff she and deceased met as casual acquaintances in the early 1960s. The deceased married in 1976 and had two children Shane born in 1976 and Peter in 1978. Shortly after the Peter's birth the deceased and his wife separated and the children went to live with their mother. The children stayed with the deceased every second weekend and half the school holidays until 1987 when their mother Susan Halliday moved to Yamba. From that time Shane and Peter stayed with the deceased for the whole of the school holidays. 4 In her affidavit in chief the plaintiff says she and the deceased commenced cohabitation at his home at Fitzgerald Avenue, Smithtown from January 1992. At some stage during 1992, Shane ceased to live with his mother and commenced living with the plaintiff and deceased. At that time he was still at school. In 1995 he moved to Melbourne to take up an apprenticeship. Peter completed his HSC in 1996 and commenced casual employment as a farm hand. In 1999 he obtained full time employment in Dorrigo. 5 In 2000 the deceased became ill and was diagnosed with multiple myeloma. In 2001 the plaintiff in her affidavit in chief in a carefully crafted understatement of the truth, says she received $130,000 from the estate of her late cousin, John Lawrence. From those funds she purchased a property at Fitzgerland Avenue, Smithtown for $60,000 and paid a further $20,000 for the addition of a carport, a water tank and some furniture. 6 In late 2001 Peter began to live at the deceased's farm at Smithtown, Seven Oaks. In January 2002 his brother, Shane, died in a motorcycle accident. The deceased made his will on 9 February 2004 and he died on 24 April 2006. 7 The plaintiff's claim is that she lived with the deceased as his de facto partner until the date of his death. Given the extent of evidence in the matter I will also consider whether she might have had a close personal relationship with the deceased. In his submissions the defendant complained about this aspect being raised in the written submissions. These are proceedings commenced by summons and the defendant should be ready to deal with any claims which may arise on the case made in the affidavit materia. 8 Under the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 which took effect on 28 June 1999 there was an extension of the Act, which applied to proceedings that commenced after that date. The amended Family Provision Act incorporates the definition of a Domestic Relationship in the Property (Relationships) Act 1984. That act applies to domestic relationships which are defined in section 5: " 5. Domestic relationships (1) Before the purposes of this Act, a domestic relationship is: (a) a de facto relationship, or (b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. (2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care: (a) for fee or reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). (3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following: (a) a child born as a result of sexual relations between the parties, (b) a child adopted by both parties, (c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman: (i) of whom the man is the father, or (ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father, except where such a presumption is rebutted, (d) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998). (4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a parties to such a relationship." 9 It can be seen from the terms of section 5 (1) that a domestic relationship can be either a de facto relationship or a close personal relationship. 10 The definition of a 'de facto relationship' itself appears in section 4 and is in the following terms: " 4. De facto relationships (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons: (a) who lived together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether to persons are in a de facto relationship, all the circumstances of the relationship to be taken into account, including such of the following matters as may be relevant in a particular case: (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 inter-dependence, 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. (3) 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. (4) Except as provided by sections 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship." 11 This definition, apart from the provisions of sub-clause (1) merely reflects the existing state of the law as it had been developed under the De Facto Relationships Act 1984 and the Family Provision Act 1982. See Light v Anderson (1992) DFC ¶95-120 applying Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677. 12 Apart from the exclusionary matters in section 5 (2) there is no definition of "close personal relationship". This phrase was recently considered by the Court of Appeal in Hayes v Marquis [2008] NSWCA 10 in regard to whether parties who have not lived together continuously could nonetheless still claim to be in a close personal relationship. McColl JA (with whom Beazley JA agreed) at [75] - [80] said: "Counsel did not identify any authorities in which detailed consideration had been given to the interpretation of a "close personal relationship" in s 5(1)(b). The immediate requirements of the relationship are that it is between two adults, whether or not they are related by family, who are "living together" and one or other of whom provides the other with "domestic support and personal care". It cannot be a de facto relationship, or a marriage (s 5(1)(b)), nor one in which the domestic support and personal care is provided in the circumstances set out in s 5(2). Thus the concept of "living together" will always be something different from living together as a couple, one of the critical requirements for a de facto relationship.

The context in which s 5(1)(b) appears is also significant. A "close personal relationship" is one of two domestic relationships (the other being a de facto relationship) whose existence may be established to attract jurisdiction under the Act. The word "domestic" carries connotations of matters relating to a household. The definition contemplates, in my view, that the facts permit of the conclusion that the two adults are living as a household.

Finally, some guidance as to the purpose of s 5(1)(b) can be gleaned from the Second Reading Speech in which the Minister made it clear the amendments to the Act were to cover persons living in intimate relationships not hitherto covered.

Central to the primary judge's characterisation of the pre-1999 relationship was the proposition that the concept of "living together" in s 5(1)(b) did not require the parties to live together fulltime. In my view his Honour was correct in approaching the case on that basis. The definition of "close personal relationship" does not require the two adults to live together fulltime. The language of s 5(1)(b) does not require such co-habitation. Further a s 5 "close personal relationship" may be contrasted with a s 4 de facto relationship. A de facto relationship is one which might ordinarily be expected to emphasise common residence. However, while the definition of a de facto relationship requires a relationship between two adult persons who live together as a couple, s 4(2) makes it plain that sharing a "common residence" full-time is not essential to a conclusion that a de facto relationship exists: see also PY v CY [2005] QCA 247 (at [7]) per De Jersey CJ. Rather the significance of a common residence, in determining whether a de facto relationship exists, turns on its nature and extent.

Similarly, in my view, the question whether a couple are "living together" for the purposes of s 5(1)(b) will turn on an evaluation of the nature and extent to which they share a household. Having regard to the fact, however, that they do not have to live together as a couple to satisfy s 5(1)(b), it might be thought the requirement of a common residence might be somewhat more attenuated than in s 4. Further, the concept of "living together" is only one of the three indicia of the relationship in s 5(1)(b). The decision as to whether the statutory definition is satisfied will, like the decision about whether a de facto relationship exists, ultimately be a value judgment which has regard to the three indicia to determine whether there is a relationship which fulfils the definition as a whole." 13 Similar points were made by Einstein J who at [165] - [166] said: "Plainly the Act does not provide a definition of the phrase "a close personal relationship". In that regard the following may be said:

i. the language of s 5(1)(b) is explicit in identifying the material concept as involving a relationship other than marriage or a de facto relationship. Hence it is not necessary that there be a sexual relationship.

ii. The relationship must be between two adult persons and they can be of the same family.

iii. It is important in focusing upon the s 5(1)(b) concept of a 'close personal relationship' between adult persons who are ' living together ' , to keep in mind the signal difference between "de facto relationship" concepts relating to a "couple" which are not relevant (cf Dridi v Fillmore [2001] NSWSC 319 at [102]).

iv. One or each of the parties must provide the other with domestic support and personal care. The language of the subsection is explicit in that the requirements for provision of domestic support and personal care are cumulative. Neither one nor the other suffices. Both must be provided. Upon its proper construction the expression "living together" in the context of the instant legislation is to be understood as referring to the sharing of a home: that is to say to cohabit/to dwell together. The test is an objective one. It involves assessing the nature and extent of the claimed common residence. To live together requires that the two adult persons be seen as regarding the place or places in which they live as 'their home'. Both of them may not always be found in that home because from time to time family or business requirements or similar may require one or both to spend some time elsewhere cf: Re Fagan Deceased [1980] 5 Fam LR 813 where Jacobs J observed [at 822] that "there may be states of cohabitation where (the partners) see as much of each other as they can", to which I would add - "in the circumstances". But the dominant parameter will be whether or not the individuals concerned may be discerned to regard the premises in question as their home and in so doing to be acting reasonably." 14 Section 5 (1) (b) refers to persons "who are living together, one or each of whom provides the other with domestic support and personal care". It is notable that both domestic support and personal care must be provided. One of them alone would not be sufficient. The "close personal relationship" has to be between two adult persons who are "living together". Given that they may be members of the same family, such as grandparents and grandchild and a different definition for a "de facto relationship" as I have said before and has been said by McColl JA above, concepts relating to a "couple" are not relevant. Instead, the definition calls for two different links. The first is that the parties are "living together". The second is that "one or each of whom provides the other with domestic support and personal care". 15 So far as the first requirement is concerned it is plain that in this case the plaintiff and the deceased were living together. 16 The second requirement is cumulative. There must be both domestic support and personal care. 17 It is the provision of "personal care" which provides the clue to the meaning of the composite expression "domestic support and personal care". Some of the primary meanings of "personal" include: (a) Of or pertaining to concerning of affecting the individual person or self; individual; private; one's own. (b) Of or pertaining to one's person or body or figure; bodily. 18 Accordingly, personal care connotes care taken in connection with such matters. It could be provided by: (a) The person concerned. (b) An employed valet or lady in waiting, (c) a mother for her sick child, or (d) a daughter for her elderly incapacitated mother.

19 The legislation in terms excludes the first two but would include the last two examples. 20 The regularity and the nature of the "domestic support" and "personal care" provided by a claimant for a deceased is often a critical element in determining whether their application succeeds. This introduces an element of objectivity as it is only if the care is of sufficient duration and quality that the jurisdiction of Act will be attracted. To make such an analysis it is necessary to take into account all of the idiosyncrasies of a case as sometimes particular acts of care may be more or less important in the circumstances of the case. As explained by McColl JA in Hayes v Marquis [2008] NSWCA 10 at [84] - [87]: "The question of whether or not one adult provides the other with domestic support and personal care sufficient to satisfy s 5(1)(b) will also turn on the nature and extent of that assistance. Thus if two adults lived together fulltime and one provided domestic support and personal care to the other only once or twice a year, it would be difficult to say that a close personal relationship had been established.

While Ms Bridger conceded the respondent provided domestic support, she challenged the proposition that the evidence disclosed that either the appellant or the respondent provided the other with "personal care" within the meaning of s 5(1)(b). She drew attention to Dridi v Fillmore [2001] NSWSC 319 (at [105] - [106]) where Master Macready said that personal care connoted care taken with respect to such matters as pertained to, concerned or affected the individual person or self or pertained to one's person, body or figure. She did not explain why the sort of care the respondent provided did not fall within that description.

Master Macready commented (at [108]) that he would not have thought that matters such as "emotional support" would "by themselves" fall within the expression "domestic support and personal care". Clearly each case will turn on its own facts. The Second Reading Speech contemplated that personal care services may encompass ensuring the physical and emotional support of one or both parties for the other.

For my part I have difficulty with an argument that parties accepted to be in a loving sexual relationship, as the primary judge found here, are not providing each other with personal care. And there may be cases where emotional support of itself will suffice. Society recognises the importance emotional support can play in an individual's well being. Psyche is just as much a personal attribute requiring sustenance as one's physical self. The notion of "personal care" should not be confined to matters relating to physicality." 21 Beazley JA agreed substantially with the reasons of McColl JA. At [167] - [169] Einstein J said: "An important pointer in the legislation is seen in the further requirements that one or each of the adult persons is to provide the other with domestic support and personal care. These requirements clearly support the above construction of the term "living together". The key to the correct construction inheres in the notion of two adults living together at the same time as one or each of whom provides and/or receives domestic support and personal care to the other. Whilst it must be acknowledged that there will always be borderline situations requiring close attention to be given to the material circumstances, the expression requiring the provision of "domestic support" would not seem to occasion any particular questions of ambiguity.

The other expression requiring the provision of "personal care" may well result in differences of opinion. The expression is not defined. The ordinary meaning to be attributed to this expression is simply the commonsense experience of one person caring in a personal way for the needs of another. In Dridi v Fillmore , Master [now Associate Justice] Macready expressed the view with which I agree, that the expression 'personal care' seemed to be directed at matters such as assistance with mobility, personal hygiene, physical comfort and emotional support. Nor would I regard this list as necessarily exhaustive. It is unnecessary to presently determine whether in the absence of the giving of assistance of the type outlined above, the giving of emotional support would qualify on its own as 'personal care', although this may well be the case.

Hence it is that in cases such as the present, the exercise involves a close examination of all of the evidence in the search for the indicators of whether or not a close personal relationship between two adult persons living together has been shown to exist." 22 I turn to consider the question whether the plaintiff lived with the deceased in a de facto relationship at the date of his death. 23 It is necessary to note that the evidence put forward by the plaintiff in her affidavit in chief was patently false in some instances. Unknown to her present legal advisers she had previously made a claim under the Family Provision Act in respect of the late Albert John Lawrence. A claim by Kenneth William Lawrence and a claim by Juanita Clare Hughes came before me on 3 and 4 May 2001 in the matters of Lawrence v The Public Trustee; Hughes v The Public Trustee [2001] NSWSC 375 which were heard together. I gave judgment on 10 May 2001. In that case the deceased Albert John Lawrence died in 1998 intestate. He had never married and he had no children. The estate was to pass to the Crown as bona vacentia. The present plaintiff, Juanita Clare Hughes, was a plaintiff in those proceedings and her evidence before me then was that she lived in a caravan at her cousin's property from July 1990 until January 1994 and that she used part of the deceased's house during the time she lived in the caravan. She gave evidence that she rented rooms from a friend who owned a house in Smithtown and that she paid $60 a fortnight for the rooms. The friend to whom she was referring in the earlier proceedings was in fact the deceased in the present proceedings and she had Allan John Halliday (the deceased in these proceedings) swear an affidavit in the earlier proceedings to support her claim. 24 The claim that the plaintiff made in the earlier proceedings was either misleading in that it did not disclose that she was living in a de facto relationship with Allan John Halliday, the deceased in the present proceedings, or it reflected the true situation the defendant states in the present case, namely, that the plaintiff was merely a housekeeper for the deceased, Allan John Halliday, and paid rent to him for two rooms which she occupied in his home. 25 The plaintiff's evidence in the present case was carefully crafted in that she did not say that she had ever had a sexual relationship with the deceased nor did she say initially that she shared a bedroom with him. The evidence in the case given by witnesses including the defendant, Peter Halliday, clearly point to the contrary. 26 There were other conflicts between the evidence she gave in the earlier case. In the earlier case she claimed she had been unable to drive a car since 1989 but in the present case she said she had been driving the deceased to appointments in 2000 which was before the hearing of the earlier matter on 3 and 4 May 2001. 27 Having regard to the conflict between the plaintiff's evidence in the case before me and in the earlier case I do not accept the plaintiff as witness of truth. Plainly given the way her affidavits were drawn, she did not tell the truth to her present solicitors who were different from the solicitors who acted for her in the earlier proceedings. 28 I will now consider other evidence in the case to ascertain the real situation. The duration of the relationship 29 Although they had met years earlier the relevant relationship was from 1994 until the date of death. The plaintiff initially said that it was from 1992 but, having regard to what she said in the earlier case, this was not true and she accepted that it must have been 1994. The nature and extent of a common residence 30 Apart from periods of hospitalisation they both lived in the house on a continuous basis for the same period. Whether or not a sexual relation existed 31 The plaintiff did not suggest that there was a sexual relationship and the observations of others who visited the house suggest that she occupied a separate bedroom from the deceased. Having regard to Peter Halliday's evidence and that of the deceased's sister, Mrs Robyn Simpson, I do not accept the plaintiff's assertion that she only slept in the second bedroom after the deceased became ill. The degree of financial dependence or interdependence and the arrangements for support between the parties 32 The plaintiff grew vegetables, raised poultry and pigs and these activities provided produce for them both. The deceased as well as the plaintiff purchased the usual household supplies. 33 They did not share a bank account and throughout the relationship the plaintiff received a disability pension. The ownership and acquisition of property 34 The plaintiff and the deceased did not acquire property between them during the relationship. The care and support of children 35 During the school holidays the deceased's children stayed with them in the early years. Shane moved in to live with them for three years which covered the last two years of his schooling. 36 I accept that the plaintiff and the deceased cared for the deceased's children. Indeed, one reason why the plaintiff came to live with the deceased in the first place was so that she could look after the children during the school holidays when the deceased was away working. Performance of household duties 37 The plaintiff says she performed household duties but the evidence is full of complaints by the deceased about the ways she performed these tasks. 38 However, evidence from Mrs Cooper confirms the plaintiff's evidence that she cooked for the family and I accept that she did the domestic work for the household. The degree of mutual commitment to a shared life and reputation and public aspects of the relationship 39 As mentioned above a key criterion in determining whether a de facto relationship exists is proof that the deceased and the plaintiff lived as a couple. The following excerpt from the judgment of Gzell J in Ye v Fung [2006] NSWSC 243 at [63] - [65] was relied upon by the defendant and is very useful in this regard: 63 It is clear that a number of the matters specified in the Property (Relationships) Act 1984, s 4(2) apply to the relationship between Mr Ye and the deceased. Their relationship lasted for 10 years. They lived in a common residence, but Mr Ye had his own bedroom and the deceased had hers. The relationship was non-sexual. Mr Ye was partially financially dependent upon the deceased, but there was no financial interdependence and the financial support extended to Mr Ye was ad hoc. There was no joint ownership or acquisition of property and the only property used by both was the unit and its contents. There was mutual commitment to sharing the unit, but not to a shared life. The relationship between the pair was affectionate but not what would generally be regarded as a shared life. There were no children. Household duties were shared. Apart from visits together to functions, restaurants and outings, there was no evidence that either promoted the notion that they were living together as a couple and no evidence of any public perception to that effect.

64 A de facto relationship requires more than adult persons living together. They must live together as a couple. When one thinks of persons as a couple, one thinks of two people in a romantic relationship. That is the first meaning given in the Macquarie Dictionary (4th ed) with reference to people as a couple. The Oxford English Dictionary in defining the word in the sense of the union of two, or a pair, gives as its first meaning with reference to two people: "A man and woman united by love or marriage; a wedded or engaged pair."

65 In my view the word in the Property (Relationships) Act 1984, s 4(1)(a), in the context of the extension of relief under the Act to persons in a domestic relationship, connotes two adult unmarried persons living together, united by love, or living together in a romantic relationship. 40 The defendant, Peter Halliday, submitted that although the plaintiff lived with the deceased for a number of years and conceded that this was the longest the deceased had cohabited with anyone there was no intention from either the deceased or the plaintiff to engage in a romantic relationship. To support this submission the defendant pointed to his own experiences in living and then visiting the deceased's home. In particular he noted that the plaintiff and the deceased never slept in the same bedroom and that there was no outward signs of affection between them. In fact he pointed to quite the opposite in that the deceased constantly complained about the plaintiff and threatened on numerous occasions to evict her from his house. He claims that the only reason why the deceased did not actually evict the plaintiff was that she threatened physical violence if he did and when the deceased did call for her to leave she simply ignored him and refused to leave. When questioned during cross-examination as to why the deceased would tolerate such insolence in his own house, the defendant answered, "My father was a generous man. He allowed people to do things at his advantage- disadvantage rather". 41 Mrs Robyn Simpson, the sister of the deceased, supported Peter Halliday's testimony. She claimed that one time the deceased had told her he was considering taking an AVO out against the plaintiff but withdrew when the plaintiff threatened to burn his house down. Mrs Simpson also gave evidence that the plaintiff would telephone her to try and ascertain what property the deceased owned. However, she always avoided answering these questions. 42 For her part the plaintiff points to the deceased's death certificate where the plaintiff is noted as next of kin and described as his de facto partner. She also points to various social situations in which the deceased acquiesced in treating her as his de facto spouse. This included the plaintiff's membership of the Kempsey RSL where her name is noted as "Jenny Halliday" and her attendance at a family wedding with the deceased in which she has kept the place name that had been set out on the table where she sat with the deceased in which her name is noted as Jenny Halliday. The plaintiff also kept a birthday card in which the deceased signed "with our love Allan and Peter" and a number of photographs which show the deceased and plaintiff coupled together in a seemingly content fashion. 43 The plaintiff submitted that this is evidence that the plaintiff and deceased often socialised as a couple. Peter Halliday gave evidence of the deceased telling him that he had rebuked the plaintiff for using his name and that he only brought her with him to social functions because she refused to be left at home. 44 It seems that the plaintiff did attend many social functions with the deceased and although this may have been at the initiative of the plaintiff it would prima facie seem to indicate that the deceased did enjoy spending time with her and not simply that he was forced to bring her along. On the other hand mere attendance at the same social functions does not automatically translate or elevate a relationship to that of a de facto kind. Friends and even roommates commonly attend the same social functions without any pretence of holding themselves out to the world as a couple. Instances which the plaintiff claims to have used the deceased's surname almost all seem to be of her own creation and may not of even been with the knowledge of the deceased. It is true that the plaintiff was called Jenny Halliday by some members of the deceased family as evidenced by her attendance at the wedding, but that says nothing about whether the deceased approved of her using his name. I am prepared to accept the defendant's evidence that the deceased disapproved of the plaintiff using his name. 45 I also do not place any significance on the card that was written by the deceased to the plaintiff. The word "love" in that context was used in a cordial but not romantic sense as evidenced by the fact that it was also supposed to come from the defendant. A similar conclusion can be drawn from the pictures as they contain no open signs of affection between the plaintiff and the deceased, but merely have them posing together. 46 For these reasons I do not believe that the evidence provided by the plaintiff as examples of where the plaintiff and the deceased acted as a de facto couple is enough to rebut the inconsistent testimony she provided in her earlier proceedings where she described renting two room from the deceased. I also accept the evidence of Peter Halliday and the deceased's sister of their observations that the plaintiff and the deceased were not engaged in any type of romantic relationship. 47 In my view the evidence points to the plaintiff being a housekeeper for the deceased. They did not act as a couple and the deceased's comments concerning the situation he found himself in with the plaintiff in the later years points to difficulties even in that relationship. I am not satisfied that the plaintiff was ever in a de facto relationship with the deceased. 48 The determination of the close and personal relationship claim however is more complicated as the existence of a romantic relationship and the public aspects are not necessary criteria. In this case there is no dispute that the plaintiff and the deceased lived for a prolonged period in the same house and that the first limb of s 5(1)(b) would be thereby satisfied. What appears to be in contention is the amount of "domestic support" and "personal care" the plaintiff provided to the deceased. 49 The plaintiff points to numerous instances where she provided care and support to the deceased as part of her role in providing a household for the two of them. The plaintiff owned numerous chickens and bred pigs on the deceased's property. She claims that those animals were utilized to provide a large amount of food for the household and that she commonly prepared three meals a day for the deceased and any guest who stayed in the house. The plaintiff also gave evidence indicating that she assisted in working on numerous farms around the area and often mended or made the plaintiff's clothes. 50 Despite short periods of remission as the deceased became increasingly incapacitated from his disease he had trouble in caring for his hygiene and carrying out other personal tasks. The plaintiff claims that she stepped in to provide for his care. She claims that she would clean the deceased's clothes and bed sheets, cook his meals and drive him to medical appointments. To the plaintiff's credit these tasks must have become especially arduous towards the end of the deceased's illness as it appears that he suffered from incontinence and became increasingly dependent upon her. The evidence of Mrs Cooper, the stepdaughter of the deceased, supported the plaintiff's evidence of this personal care. 51 For his part, Peter Halliday contests the extent of the care provided by the plaintiff. He points to numerous occasions when he visited the deceased at the home where he says it was untidy and claims that the plaintiff was often tardy in doing the deceased's washing. Multiple myeloma is a degenerative disease and as mentioned above there were periods in which the deceased seems to have gone into remission. Peter Halliday claims that throughout such periods the deceased looked after himself and it was only for a short period towards the end of his life that he became dependent on the plaintiff. Even though Peter Halliday did not live in the house to observe this he claims he was told as much by his father before he died. 52 There is some doubt whether the plaintiff was able to drive the deceased to medical appointments as she had given evidence in her previous trial that she could not drive because of the side effects of a brain haemorrhage she had sustained in 1987. Having regard to her evidence in the earlier case I do not accept that she drove the deceased to his medical appointments until the last few years before his death. 53 The defendant submits that the plaintiff originally moved in to assist the deceased with his children and that she paid the deceased rent for leasing two rooms in the house which accords with her evidence in the earlier case. Sometime after the plaintiff moved in the arrangement probably changed and the plaintiff would perform services, namely cooking, cleaning and when the defendant was younger babysitting. He therefore submitted that the plaintiff was in reality a housekeeper. 54 The problem however for the defendant is that although there may have been no romance to show that the plaintiff and the deceased were de facto spouses there does appear to be a substantial amount of sharing between each party that goes beyond a bare commercial relationship. This can be evidenced most clearly in the deceased's will where he did leave a significant legacy to the plaintiff. Although people do develop close relationships with people they employ and even reside with, if the plaintiff was merely a housekeeper it would be unlikely that the deceased would have granted her a life estate in his house. The explanation is probably that despite his frustrations with the plaintiff the deceased felt some obligation towards the plaintiff for the personal help she provided. 55 As to the amount of personal care and domestic support the plaintiff provided to the deceased, I accept that she did provide him with assistance in his personal care in the last four years of his life. This finding is just not on the evidence provided by the plaintiff but by the evidence of other witnesses such as Debby Anne Cooper. The reality is that as the deceased became increasingly ill he inevitably became reliant on those around him. It is clear that the plaintiff was the only person around him for most of this period and as a corollary only she could provide such care. I accept that domestic assistance was provided for the whole of the period they lived together. 56 As a result I find that the plaintiff and the deceased did live together and that the plaintiff provided him with domestic support and personal care when required. They did live in a close personal relationship in accordance with s 5(1)(b) of the Act. 57 Having overcome this first hurdle it is now necessary to see whether the plaintiff was left with inadequate provision.

Inadequate Provision 58 Section 7 of the Family Provision Act 1982 provides: 7 Provision out of estate or notional estate of deceased person Subject to section 9, on an application in relation to a deceased person in respect of whom administration has been granted, being an application made by or on behalf of a person in whose favour an order for provision out of the estate or notional estate of the deceased person has not previously been made, if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.

59 Section 9 further provides: 9 Provisions affecting Court's powers under secs 7 and 8 (1) ……. (2) The Court shall not make an order under section 7 or 8 in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that: (a) the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate, or (b) …..

is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person. (3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration: (a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to: (i) the acquisition, conservation or improvement of property of the deceased person, or (ii) the welfare of the deceased person, including a contribution as a homemaker, (b) the character and conduct of the eligible person before and after the death of the deceased person, (c) circumstances existing before and after the death of the deceased person, and (d) any other matter which it considers relevant in the circumstances. (4) Nothing in subsection (3) (a) limits the generality of subsection (3) (b), (c) and (d) and the Court may consider a contribution of the same nature as that referred to in subsection (3) (a) or of a different nature in so far as it considers it relevant under subsection (3) (b), (c) or (d).

60 In applications under the Family Provision Act the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 set out the two stage approach that a Court must take. At page 209 - 210 it said the following:- "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." The plaintiff's situation in life 61 The plaintiff is now aged 62 years. She is single with no dependants. She owns the property at Smithtown valued at $110,000 and she credit card debts of $6,428. She has pension entitlements of $543.50 fortnight together with pharmaceutical benefits. From this sum she is able to repay her credit card debts at the rate of $130 per fortnight. The plaintiff suffers from high blood pressure and depression for which she takes medication. 62 The plaintiff made no financial contributions towards the deceased's property and I have earlier dealt with the extent of their relationship. Plainly the deceased felt grateful for the services provided by the plaintiff when he made the provision in his will for the plaintiff to have a life estate in his home. 63 It is necessary to consider the situation in life of others who have a claim on the bounty of the deceased. In this case it is the deceased's son, Peter Halliday, and the deceased's nephews and nieces who take on the determination of the life estate. The nephews and nieces have not put their financial situation or details of their relationship with the deceased before the Court and, accordingly, the Court can conclude that they do not wish these matters to be taken into account when determining the matter. The defendant's situation in life 64 Peter John Halliday is 30 years of age, he is married and lives in the deceased's property at Smithtown Road, Smithtown. Since the deceased's death he has continued to run the deceased's farming property on which he has spent some $10,000. Under the will of the deceased he received two properties and he also receives the 65 head of cattle worth $38,000, plant and equipment worth $22,250 and shares worth $211. There are also funds in the solicitor's trust account of $3,197. He is liable to pay the legacy to the plaintiff of $5,000 and he has to meet liabilities in the estate of some $12,918.56. 65 Peter Halliday has suffered from asthma and he has had damage to his back. Apparently he receives unemployment benefits of $335.29 per fortnight. His wife who suffers from epilepsy also receives an unemployment benefit and a part disability allowance. 66 Peter Halliday has undertaken courses to improve his skills. At present he is has only been able to do occasional handyman work. As I have mentioned he looks after the deceased's property and there is some work and equipment which is required if that is to continue. This will cost in the order of $9,000. In addition he would like to replace the hayshed which would cost some $35,000 to $40,000. 67 The property he receives under the will in which he and his wife reside at Smithtown Road, Smithtown is structurally in a poor state of repair. A report from a builder confirms the structural problems and estimates the cost to repair the property between $65,000 and $70,000. 68 It is plain that Peter had a good relationship with his father and he helped him with work on the property from time to time. There is evidence of one argument they had at one stage but that did not seem to have affected the relationship. He continued to assist his father in recent years and he was allowed to use the property in which he now resides in return for that assistance. 69 It is necessary to see how the plaintiff says that she was left without adequate and proper provision for her maintenance, education and advancement in life. She did not advance any need to supplement her income and it is plain that she can cope adequately at the present time. She says that she needs to receive the fee simple of the property in respect of which she was given a life estate to enable her to have sufficient capital in the future for her to obtain appropriate nursing care accommodation when she can no longer live on the property. No evidence of the costs of nursing care was made available to support this submission. She also advances a case that she would wish to sell her own house to provide funds to carry out repairs to the house in which she has a life interest if the Court were to grant her ownership of the property. 70 As mentioned above in this case the plaintiff was granted a life estate in the deceased's home, a motor vehicle and a legacy of $5,000 in the deceased's will. In addition to these gifts she was also awarded in Hughes v Public Trustee [2001] NSWSC 375 $130,000 in a Family Provision Act claim against her cousin's estate. She used a portion of that money ($60,000) to purchase a small two-bedroom house on land in close proximity to the deceased house at 21 Fitzgerald Avenue, Smithtown. Under cross examination the plaintiff provided the following evidence in regard to the way she has utilized that house: Q. Go to paragraph 46, you say "in about 2000 my cousin John Lawrence died. I received $130,000 from his estate. I used $60,000 of the money to buy a house at 21 Fitzgerald Ave Smithtown". You still have that house?

A. Nobody has paid me rent, my girlfriend's son lived there for a while and he paid the rates and my friend lives there now and he pays the rates, it is only two rooms, it is not really a house, well it is but it is two rooms.

A. Well, he looks after the place mows the lawns and does odd jobs there.

Q. How long did you will girlfriend's daughter -- is that who you said lived there, who else did you say lived there?

Q. And you spent a further $20,000 on it with furniture, carport and a water tank. What furniture?

A. I bought a few things, got myself out of debt and that is what I did.

A. Um there is wardrobes out in the shed and divan and I got some new carpet and just things in general for a small cottage.

71 The defendant submitted that the plaintiff's alleged need for monetary amounts cannot be that great if she is willing to have a caretaker in her house at Fitzgerald Avenue whose only contribution is the payment of rates. As I have mentioned the plaintiff receives a disability pension of over $500.00 per fortnight and she is able to manage on her present income. 72 As I have mentioned the main thrust of the plaintiff's submissions is that although she may have enough income she is worried whether she has enough to maintain her for the long term and into the future. In particular she is worried that if she ages she may be required to leave the deceased's home and may not be able to afford to relocate to some form of nursing home. She submitted that this would be the case even if she sold her own two-bedroom house at Fitzgerald Avenue, Smithtown which she claims would not generate a substantial amount of capital. She claims that if her interest in the deceased home were upgraded from a life estate to a fee simple she would be able to have enough capital to improve that property by selling her own property at Fitzgerald Avenue. She could then use the deceased's property as security to gain entry into a nursing home. The problem with that submission is the lack of evidence to support it. 73 The plaintiff's claim has to be seen in the light of her relationship with the deceased which was in effect as his housekeeper and later when he was ill as his personal carer in the last four years of the deceased's life. I do not see that this would warrant the deceased making the extensive provisions which the plaintiff seeks. 74 Although Peter Halliday received significant assets he does not receive a substantial income. He may not be able to retain the farm if he has to carry out repairs to his residence. The repairs are for a large part essential and not merely a matter of convenience. Given the costs incurred to date it is very likely that he will have to sell the farm in any event. 75 The granting of a life estate in the deceased's home is a significant gift which should save the plaintiff much expense in finding alternative accommodation. Not only does it save expense it also gives the plaintiff the opportunity to lease her own property at Fitzgerald Avenue which will provide her with additional income. That property provides a capital base for contingencies or provision of accommodation. 76 The plaintiff may wish to carry out repairs to the property in which she has a life interest. The total cost of those repairs is $59,560. As there was no cross-examination on this matter it is difficult to see what repairs are really necessary. There is a need for some external painting which will not be a large expense. The plaintiff is not liable for permissive waste and it is likely that she will be able to live in the house for many years. If at any time she has to leave she already has her own house property on which she has paid for improvements. 77 Although I accept that the plaintiff is an eligible person she has not been left without adequate and proper provision. I therefore propose to dismiss the plaintiff's claim. 78 I order that the plaintiff's Summons filed 9 October 2006 be dismissed. 79 I will hear the parties on costs at a time to be arranged with my Associate. ******************

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At a glance

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Judgment (35 paragraphs)

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Cases Cited (7)

Cited By (4)