Ibrahim v Dos Remedios

Re Fulop Deceased (1987) 8 NSWLR 679 CASES CITED : Singer v Berghouse (1994) 181 CLR 201

Denis Ibrahim (First Plaintiff) PARTIES : Maria Lousia Teireira as next friend for Chloe Teirxeira and Mia Teixeira (Second Plaintiffs) Melita Dos Remedios (Defendant)

Mr. J. Anderson (Plaintiffs) COUNSEL : Mr. A. Enright (Defendant)

Hunter Jackson (Plaintiffs) SOLICITORS : B. Hayward & Co (Defendant)

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

4139/03 DENIS IBRAHIM and ANOR -v- MELITA DOS REMEDIOS

JUDGMENT 1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 4 August 2003 Denis Ibrahim, the Plaintiff, claims an order for provision for his maintenance out of the estate and the notional estate of his late mother, Ana Ibrahim (to whom I shall refer as "the Deceased"). 3 The Deceased died intestate, aged about 74 years, on 8 August 2002. Letters of Administration of her intestate estate were granted to Melita Dos Remedios (who is the Defendant named in the summons). 4 Subsequently, on 14 October 2003 an amended summons was filed. By that amended summons claims for provision for their maintenance were also made by two additional plaintiffs, being Chloe Teixeira and Mia Teixeira (described as "second Plaintiffs"), who are the two infant children of Denis Ibrahim. In the light of the nature of the relief submitted on behalf of the Plaintiffs, I shall herein continue to refer to the first Plaintiff, Denis Ibrahim, as "the Plaintiff" and I shall, without intending to them any disrespect, refer to the second Plaintiffs as Chloe and Mia. 5 The only assets of the Deceased at the time of her death were a house property situate at and known as 74 Simmons Street, Enmore (to which in the inventory of property a value of $700,000 was ascribed), and funds held by the Protective Commissioner in an amount of about $9,460. During the course of the hearing it was noted that it was agreed between the parties that the present value of the foregoing house property (to which I shall refer as "the Enmore property") was $635,000. 6 The Deceased was survived by her two children, being the Plaintiff and the Defendant. Upon her intestacy the estate of the Deceased passed to them equally.

7 The Plaintiff was born on 8 October 1965, and is presently aged 39 years. He was born to the union of the Deceased and Najazi Ibrahim, whom the Deceased subsequently married in 1966. The Plaintiff is the only child of that union. The Deceased had previously had one other child, Melita (now Mrs Dos Remedios), who is the Defendant to the present proceedings. 8 The Plaintiff attended Tempe High School until year 10. Although he embarked upon studies for the Higher School Certificate, he abandoned that course at the age of 17. Since leaving school in 1983 the Plaintiff has been employed as a labourer, factory hand, delivery driver, amusement machine assembler and installer. In 1995 he was employed on a full-time basis as a delivery driver for Daily Fresh Frozen Foods. The following year, 1996, he ceased employment to look after his mother, the Deceased. He obtained a carer's pension in that capacity. 9 Since mid-2003 the Plaintiff has been employed as a street cleaner by the Sydney City Council, at first in a casual position and subsequently, since about February 2004, in a full-time capacity. 10 In 1968 the Plaintiff's parents purchased the house property situate at and known as 74 Simmons Street, Enmore. The Plaintiff's parents divorced in 1980, and subsequently the Plaintiff's father returned to Albania, his native land, where he has resided ever since. Upon the breakdown of her marriage the Deceased borrowed money to pay to her estranged husband for his share in the Enmore property, of which she thereupon became the sole registered proprietor. 11 The Defendant is the only child of the Deceased by Joseph Marusic. The Deceased and Mr. Marusic were not married. It is uncertain whether the Deceased and Mr. Marusic lived in a de facto relationship. According to the affidavit filed pursuant to Part 77 rule 59 of the Supreme Court Rules, Mr. Marusic was last known to be in Croatia, and it is uncertain if he is still alive. 12 In 1966, when the Deceased began to suffer from Alzheimer's disease, the Plaintiff left his employment to become his mother's full-time carer. In May of that year the Protective Commissioner was appointed manager of the Deceased's estate, and subsequently in November of that year the Plaintiff was appointed the "person responsible" for his mother by the Guardianship Board. 13 In November 1997 the Deceased was admitted to the Balmain District Hospital, and subsequently, after a hearing before the Guardianship Tribunal on 17 December 1997 (when she was placed under the guardianship of the Public Guardian), the Deceased was admitted to the Ferndale Nursing Home at Mortdale in January 1998, where she remained until her death on 8 August 2002. 14 In 1990 the Plaintiff entered into a relationship with Maria Louisa Teixeira (referred to in the evidence as "Louisa"). Of that relationship were born the two children, Chloe (born on 26 July 1995, who is presently aged nine years) and Mia (who was born on 14 August 1998 and who is presently aged six years). The Plaintiff's de facto relationship with the mother of his children terminated in 1997, before the birth of Mia. 15 From December 1997 until January 2003 the Plaintiff was in receipt of a sole parent benefit. The Plaintiff's two children reside with him at the Enmore property. 16 Nevertheless, despite the fact that the de facto relationship between the Plaintiff and Louisa Teixeira terminated in 1997, Ms Teixeira still has a close and continuing involvement in the lives of their two children, and maintains a harmonious relationship with the Plaintiff. Ms Teixeira until April 2004 resided with her parents and her three siblings at 88 Simmons Street, Enmore, where she had lived from the age of three years. That residence is in close geographical proximity to the Enmore property of the Deceased, at 74 Simmons Street, where the Plaintiff and his two infant children continue to reside. Ms Teixeira has a key to the Enmore property and sees her children on a daily basis. She contributes to the upkeep of the children. 17 Until May 2003 Ms Teixeira was in full-time employment as a graphic artist. She then worked as a graphic artist on a contract basis in a part-time capacity. Since November 2004 she has been a permanent full-time employee at MBF in a capacity known as a "MAC Operator", in which position she earns $688 net a week. 18 Since mid-April 2004 Ms Teixeira has been residing in rented accommodation at Enmore, being a home unit situate at and known as 1/153 Enmore Road, Enmore. She resides on her own in that home unit, for which she pays rent of $140 a week. 19 In 1996 Ms Teixeira, conjointly with her sister Ana Maria Teixeira, purchased for $210,000 a single storey, free standing, two bedroom house situate at and known as 28 Cannon Street, Stanmore ("the Stanmore property"). Ms Teixeira and her sister borrowed $192,000 towards that purchase price, that borrowing being secured by a mortgage. They contribute equally to the mortgage instalments, municipal rates and insurance on the property (Ms Teixeira's half share of mortgage instalments being $200 a week). The Stanmore property is in a derelict state, infested with white ants, and is not habitable. The renovation of that property, in accordance with plans which Ms Teixeira and her sister have had prepared, would cost about $200,000 and would take about nine months to complete. Neither Ms Teixeira nor her sister has the financial capacity to undertake those restorations and renovations to the Stanmore property. However, it is their ultimate intention that upon completion of such restoration Ms Teixeira and her sister would then occupy the property and use it as their personal residence. 20 According to Ms Teixeira the Stanmore property has a current estimated value of $450,000. She and her sister have spent about $5,500 on Council application fees, draftsmen and engineering services, in respect to the proposed restoration of that property. 21 Ms Teixeira holds about $2,400 in her bank account, and has a Visa card indebtedness of about $5,334. She has a superannuation entitlement in an amount of $24,344. 22 According to the evidence of Ms Teixeira, it is neither her intention nor her desire that either Chloe or Mia should reside with her at the Stanmore property when the renovations are ultimately completed. Since her financial commitments in respect to the purchase of that property, as well as any future renovation thereof, would require that she continue working on a full-time basis, she would be unable to care for her two young children on her own. She stated that she would not wish to remove Chloe and Mia from their current residential situation, where she says that they are happy and where they are in close proximity to the support of their mother's family, their schools and local friends. 23 According to Ms Teixeira, on the occasions when she spends the night at the Enmore property (which sometimes happens, especially when the Plaintiff has been performing shift work) she sleeps on a futon in the living room, whilst the Plaintiff spends the night in his own bedchamber. 24 Ms Teixeira was cross-examined concerning the nature of her relationship with the Plaintiff, and she was adamant that the de facto relationship between them had permanently terminated. 25 It was the evidence of the Plaintiff that in or about 1992-1993 the Plaintiff had several conversations with the Deceased concerning where he would live upon her death, in which the Deceased indicated that she wanted him to have a roof over his head, and stated that she would change her will and make provision for him to keep the Enmore property. The will to which the Deceased referred was that made by her in October 1991, which provided for her estate to be shared equally between the Plaintiff and the Defendant. The Deceased retrieved that will from the Defendant (in whose custody it had apparently been), and then destroyed that will. She did not ever make another will and, as has already been recorded, she died intestate. 26 The Defendant was born in Yugoslavia on 6 January 1959. She, together with her mother, her step-father and her half-brother (the Plaintiff), arrived in Australia in the late 1960s. The Enmore property was purchased shortly thereafter. The Defendant attended St. Scholastica's College at Glebe Point, where she attained the Higher School Certificate in 1977. She embarked upon tertiary education (which she abandoned after one year) and then completed a business college course before entering the workforce in 1979 as a typist/clerk with the Commonwealth Bank. 27 The Defendant married Paul Dos Remedios on 19 May 1985. Subsequently four children were born to the Defendant and her husband. It was the practice of the Deceased throughout the period from 1985 to 1992 to stay with the Defendant and her husband at their Mortdale residence during the week, in order to assist with the Defendant's children whilst the Defendant was at work, and then to return to her own home at Enmore at weekends. 28 In 1992 the Deceased reduced the time she spent assisting the Defendant to only three hours a day on three days each week, and she only occasionally stayed overnight at the Defendant's residence. In 1993 the Defendant resigned from her employment with the Commonwealth Bank. 29 After the Protective Commissioner had been appointed by the Guardianship Board to manage the Deceased's finances on 16 May 1996, and after the Deceased was subsequently placed under the guardianship of the Public Guardian on 17 December 1997, the Defendant became the "person responsible" for the Deceased in June 1998. 30 At the present time the Plaintiff's assets consist of savings of about $10,000 and a superannuation entitlement of $4,308. He earns $747 net a week (those earnings reflecting eight hours of overtime which he works each Saturday). The Plaintiff owns a 1978 Mazda motor vehicle, which he purchased in the later part of 2003 for $1,000. He has no liabilities. It was the Plaintiff's evidence that his outgoings totalled $411 a week. 31 According to the Plaintiff, his needs require that he reside in the Enmore property in order to look after his children. He also stated that he requires a new car and requires a fund to meet unforseen contingencies. 32 The Defendant has the following assets (which she owns conjointly with her husband): House property situate at and known as 2A Alexander Street, Penshurst, having an estimated value of $650,000, which is subject to a mortgage to the Commonwealth Bank in an amount of $284,703. Shares in the Commonwealth Bank, having a current value of about $53,300. Motor vehicles: Toyota Prado, to which an estimated value of $32,000 was ascribed. Volkswagen 1978, to which an estimated value of $2,000 was ascribed. Boat, to which an estimated value of $4,000 was ascribed. 33 The Defendant has a superannuation entitlement of $149,183. Her husband has two superannuation entitlements, totalling $50,568.

34 The Defendant's husband, who was formerly employed as a carpenter, receiving a variable income, is now employed as a building supervisor, receiving an annual salary of $65,000 a year, plus a petrol allowance of about $1,300 a year. The Defendant herself is not in employment and is a full-time mother and homemaker.

35 The Defendant's eldest daughter is pursuing a TAFE course to become an architectural associate, and is in part-time employment. The Defendant's other three children are still at school. Her second child currently is suffering various health problems, details of which are set forth in her affidavit evidence. Details of the cost of educating her children are also set forth in that evidence. 36 According to the Defendant's evidence, her husband's income is fully expended on living expenses for the family and mortgage payments upon their residence. It is the Defendant's intention to use her interest in the estate of the Deceased to pay out the mortgage debt on their home and to provide a buffer for the future expenses of raising their four children. 37 The present value of the Enmore property is $635,000. That figure (together with the amount of about $9,460 held by the Protective Commissioner) is the gross value of the estate of the Deceased. The liabilities of the estate at the date of the death of the Deceased (essentially the cost of the funeral and of the headstone) totalled slightly in excess of $9,500. The payment of those liabilities exhausted the cash assets of the estate. However, the costs of obtaining letters of administration and of completing the administration of the estate will total about $6,000. Unless the parties were prepared to advance that sum themselves, it was inevitable, even had the present proceedings not been instituted, that the Enmore property would have had to be sold in order to meet those costs of administration. 38 If the house property were to be sold, then there would be agent's commission and State tax on disposal (those two items estimated to total almost $27,625), as well as legal costs on the sale (in an amount of about $1,500) which would be payable out of the proceeds of sale, as well as the foregoing administration costs of $6,000. Accordingly, of the estimated value of $635,000, there would remain for division between the parties an amount of slightly less than $600,000. Thus, had the present proceedings not been instituted, each of the Plaintiff and the Defendant would have received upon the intestacy of the Deceased, an amount of about $300,000. 39 It will be appreciated, however, that in calculating the amount actually available for distribution in the circumstances where the present proceedings have now been instituted the costs of these proceedings must be taken into account. In the event that he be successful, the Plaintiff will be entitled to have his costs out of the estate, and, irrespective of the outcome of the proceedings, the Defendant will be entitled to her costs out of the estate. It is estimated that the costs of the Plaintiff will total almost $39,000, whilst those of the Defendant will total $32,000. In consequence, therefore, the net distributable estate of the Deceased will be in the vicinity of $529,000 of which amount, upon intestacy, the Plaintiff and the Defendant would each be entitled to one-half, being about $264,500. 40 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff and of his two infant children. 41 I have had the benefit of receiving chronologies and written outlines of submissions from Counsel for the respective parties. Those documents will be retained in the Court file. 42 The Plaintiff as a son of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings. 43 It will be appreciated that the Defendant is also an eligible person within the same paragraph of the foregoing definition. 44 It is submitted on behalf of the Plaintiff that each of his two infant children is also an eligible person in relation to the Deceased, being such within paragraph (d) of the foregoing definition, since, so it is submitted, each of Chloe and Mia is not only a grandchild of the Deceased, but was also dependent upon the Deceased for her shelter. 45 However, it is submitted on behalf of the Plaintiff that the claim of his two infant daughters is, in effect, subsumed within his own claim, and that if he were to receive the Enmore property absolutely, then Chloe and Mia would not need to pursue their claims. 46 The foregoing submission is not an approach with which the Court is in agreement. Each of Chloe and Mia has brought proceedings through her next friend, being her mother Maria Louisa Teixeira. The Court must decide the claim of the two infant Plaintiffs. They, through their next friend, have not chosen to abandon that claim or to seek the leave of the Court to discontinue their claim. 47 Throughout the entirety of their lives each of the infant Plaintiffs has resided with her father, the Plaintiff. They have resided in a household located in the Enmore property, of which their grandmother, the Deceased, was the owner. To the extent that their father was dependent upon the Deceased for accommodation, and that the infant Plaintiffs were themselves in the care and custody of their father and remained so throughout the lifetime of the Deceased, and thereafter (although, as I have already recorded, they had regular, close and continuing contact with their mother, who until the death of the Deceased resided either in the Enmore property or, from late 1997, in the same street as and only several houses from the Enmore property), it has been submitted that the infant Plaintiffs were dependent upon the Deceased for accommodation and shelter. 48 It seems to me, however, that in circumstances where, as here, infant children are residing with one of their parents (or, indeed, with both of their parents, which was the case of Chloe for the period from her birth until Ms Teixeira moved out of the Enmore property in late 1997), the fact that the house property in which they reside belonged to the grandmother of those infant children, and that they have been residing there in consequence of the permission given by the grandmother, does not of itself make either of those infant children dependent upon their grandmother. Those children were dependent upon their parents, especially their father, for shelter and sustenance. The present is not a case where, for example, a grandmother has adopted the role of mother towards an infant grandchild who has been deprived of one or both of her parents. 49 Since in my conclusion they were not totally or partly dependent upon the Deceased, neither Chloe nor Mia is an eligible person in relation to the Deceased. But even if (contrary to the conclusion which I have just expressed) Chloe and Mia were eligible persons in relation to the Deceased, it would be necessary for them, being such only within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act, to establish that there are factors which warrant the making of the application (section 9(1)). 50 In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection (which formed no part of the Draft Bill produced by the Law Reform Commission)", McLelland J (as he then was) said in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 that the factors referred to in section 9(1) are factors which, when added to factors which render the applicant an eligible person, give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a testator. In the circumstances of this case I am not satisfied that there are such factors. 51 Accordingly, the claims of Chloe and Mia will be dismissed. 52 Other possible eligible persons in relation to the Deceased are Joseph Marusic, the father of the Defendant (who may no longer be alive, and in any event, his whereabouts are unknown), and Najazi Ibrahim, the former husband of the Deceased and the father of the Plaintiff (whose whereabouts are not known to the Defendant, but who is understood to reside in Albania). 53 There would seem to be the possibility that Maria Louisa Teixeira, the former de facto spouse of the Plaintiff and the mother of Chloe and Mia, may also be an eligible person in relation to the Deceased. For the period from 1994 until 1997 she resided at the Enmore property and was a member of the same household as the Deceased. It is possible to suggest that she may have been dependent upon the Deceased for her accommodation. But, as she was residing in the Enmore property only in her capacity as the de facto spouse of the Plaintiff, and not in any independent capacity, the views which I have earlier expressed concerning the asserted dependence upon the Deceased of the infant children of the Plaintiff are equally applicable to the de facto spouse of the Plaintiff. Further, although aware of the present proceedings (being the next friend of Chloe and Mia and having provided several affidavits in support of the claim of her infant daughters and their father), Ms Teixeira has not herself made a claim. In any event, her solicitor has provided a certificate dated 1 October 2003, pursuant to Part 63 rule (46) of the Supreme Court Rules, that Ms Teixeira has no interest in the proceedings adverse to that of Chloe Teixeira and Mia Teixeira. In these circumstances, I consider that the Court is entitled to disregard the possibility of any claim by Ms Teixeira against the estate of the Deceased. 54 It will be appreciated that it is for the Plaintiff to establish his claim upon its own merits. The Defendant does not have to prove anything. She is content to receive one half of the estate consequent upon the intestacy of the Deceased. The competing claim of the Defendant to that share of the estate arises from her entitlement upon the intestacy of the Deceased. But her status as one of the two objects of the testamentary beneficence of the Deceased under the will which the Deceased made on 31 October 1981 is also relevant to, and consistent with, that competing claim. The financial and material circumstances of the Defendant are relevant only to the extent that those circumstances may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff may otherwise have established. Those circumstances cannot have the effect of enhancing or improving the claim of the Plaintiff. 55 It should also be appreciated that an order for provision is not made as a reward for good conduct on the part of an applicant. Neither is such an order withheld as punishment for perceived bad conduct on the part of the applicant. In the instant case the Plaintiff looked after his mother during the onset of her mental deterioration, and until it was necessary for her to be admitted to hospital and subsequently to a nursing home.

56 From the time when the Deceased left the Enmore property (to go into hospital and subsequently into a nursing home) at the end of 1997, the Plaintiff has had the benefit of continuing to reside, for more than seven years, in the Enmore property, without paying any rent or occupation fee (either to the Deceased herself or, during the period of more than two years since the death of the Deceased, to her estate). That fact has been to the considerable financial benefit of the Plaintiff. 57 The Plaintiff submits that his need is for accommodation for himself and for his two infant daughters. He is desirous of remaining in residence in the Enmore property, and for that purpose he is desirous of buying out the interest of the Defendant therein. He seeks an order for provision in terms that he receive the Enmore property absolutely, upon payment by him to the Defendant of the sum of $250,000. 58 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 the Court must first determine whether the Plaintiff has been left without adequate provision for his proper maintenance. The provision for the Plaintiff which he receives upon the intestacy of the Deceased is a one half interest in the estate of the Deceased. In the event that the only significant asset in the estate, being the Enmore property, is sold (and that must be the practical consequence of a situation where there is not sufficient in the way of monetary assets to meet the liabilities of the estate), the Plaintiff, had the present proceedings not been instituted, would have received about $300,000. The essential need of the Plaintiff is for accommodation. The question then arises whether, in circumstances where the Plaintiff was entitled to receive from the estate $300,000, is in full-time employment and is able to raise a significant sum by way of a mortgage loan upon a residence, it can be said that he has been left without adequate provision for his maintenance. 59 As has already been observed, if the present proceedings had not been instituted, and if the Enmore property had been sold, each of the Plaintiff and the Defendant would have received, from the net proceeds of sale, an amount of about $300,000. However, in the light of the institution of the present proceedings, and taking into account the totality of the costs of the parties to the proceedings, the half share to which each of the parties is entitled upon intestacy would be about $264,500 (or perhaps somewhat more if the Plaintiff's costs not be payable out of the estate).

60 I have already observed that the evidence is skimpy, if not non-existent, concerning the nature of any appropriate accommodation which the Plaintiff may be able to purchase, and the cost of such accommodation.

61 There is no evidence before the Court as to the nature of any accommodation which the Plaintiff could acquire for about $300,000, or for about $264,500, or for those amounts augmented by a housing loan of up to $290,000. 62 It is incumbent upon an applicant for an order for provision, who is seeking accommodation, to place before the Court evidence of the nature of the accommodation which the applicant desires, and the cost of the accommodation. In the instant case the Plaintiff has chosen not to do this, but merely to rely upon his submission that he should be enabled to remain in residence in the Enmore property and, for that purpose, to acquire the interest of the Defendant therein. 63 If the Plaintiff were to obtain a housing loan of $290,000 (which it would appear that the Plaintiff would not be financially able to repay), or if he were to obtain a housing loan in a somewhat lesser figure, the repayments upon which he could realistically meet, then it is likely that he would be able to acquire a residence costing at least $500,000. An ability to acquire such a residence does not support the conclusion that the Plaintiff has been left without adequate provision for his proper maintenance. 64 However, the Court is, by section 7 of the Family Provision Act, enjoined to look to the circumstances as they exist at the present time. Accordingly, the Court is not entitled to disregard the fact that, in consequence of the costs which would have been associated with the sale of the Enmore property and the costs incurred by the Plaintiff and by the Defendant in the present proceedings, the Plaintiff will be entitled to receive no more than $264,500 out of the estate as his share upon intestacy, from which amount he may be required to pay his own costs of $39,000 and may also be required to pay the costs of the Defendant, estimated in an amount of $32,000. In such circumstances the amount which the Plaintiff would have available to him from the estate of the Deceased would be reduced to about $193,500. Even that amount, when added to a realistic housing loan of about $200,000, together with his savings of about $10,000, would still probably be adequate to enable the Plaintiff to purchase a residence for himself and the two infant children. (I would here interpolate that there appears to be no reason why the Defendant, who is in full-time employment, and who has a significant asset, being a one-half share in the Stanmore property, should not contribute equally with the Plaintiff to the maintenance and expenses of Chloe and Mia.) 65 Even upon the approach which I have postulated that the Plaintiff will receive only one-half of the net proceeds of sale of the Enmore property, from which he may be required to pay his own costs and possibly those of the Defendant, I am not satisfied that the Plaintiff has established that he has been left without adequate provision for his proper maintenance. 66 It follows, therefore, that the discretion vested in the Court under section 7 of the Family Provision Act has not been activated, and thus that the Plaintiff's claim must be dismissed.

(2). I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis.

(3). I order that the Defendant be entitled to retain out of the assets of the estate of the late Ana Ibrahim ("the Deceased") the difference between the costs which she may recover pursuant to order 2 hereof and the costs of the Defendant on the indemnity basis. (4). The exhibits may be returned. ********

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