1 MASTER: These are proceedings under the Family Provision Act 1982.
2 By summons filed on 17 September 1999 the Plaintiff, Jenny (Zhi Ying) Mao, claims an order for provision for her maintenance and advancement in life out of the estate and/or notional estate of the late Michael Alan Tytherleigh Dale (to whom I shall refer as "the Deceased").
3 The Deceased died on 21 February 1999. He left a will dated 17 January 1980, probate whereof was on 11 August 1999 granted to Ronald Peddley, the executor named in such will (who is the Defendant to the present proceedings).
4 By that will the Deceased left the entirety of his estate equally between his brother Colin Richard Kay Dale and his sister Susan Margaret Sonia Dale.
5 The Deceased (who was working in and was a resident of Thailand at the time of his death) left assets in New South Wales and assets in Thailand. The assets in New South Wales included a house property situate at and known as 215 Raglan Street, Mosman (to which a value of $900,000 was attributed in the inventory of property) and a superannuation entitlement ($440,700), together with other assets, having a value in total of $1,349,071. The assets in Thailand included a shareholding in a company which owned the residence of the Deceased at Pattaya in that kingdom. To that shareholding was attributed a value of 4,300,000 baht (the equivalent in Australian currency disclosed in the inventory of property being $175,081); and also salary and leave entitlements owing to the Deceased at the time of his death, being 1,027,007 baht ($44,308).
6 The Defendant has subsequently received payment of the outstanding salary and leave entitlements of the Deceased (in amounts totalling $45,858), and has transferred to Australia the net proceeds of sale of the company which owned the Deceased's residence at Pattaya and the moneys held in two bank accounts in Thailand (those amounts totalling $149,739).
7 The assets of the estate presently consist of the Raglan Street property (having a present value of $900,000), furniture (having an estimated value of $3,150), the entitlement of the Deceased in the Maunsell McIntyre Superannuation Fund (having a present estimated value of $440,700), together with an amount held in a cash management account ($113,418) and an amount held in a solicitor's trust account ($40,177). In consequence, therefore, it is estimated that the total value of the assets of the estate is in the order of $1,500,000.
8 In respect to the foregoing superannuation entitlement it should be noted that the trustee of that fund on 27 September 1999 proposed to pay from the fund to the Plaintiff the sum of $36,000 and to pay to the estate the balance of the entitlement of the Deceased in that fund (see Exhibit A). It is my understanding that the foregoing amount estimated to be $440,700 represents that balance.
9 It will be appreciated that in calculating the value of the estate available for distribution allowance must be made for the costs of the present proceedings. The Defendant will, in any event, be entitled to an order for his costs out of the estate; the Plaintiff, in the event that she be successful in her claim, will also be entitled to an order for costs. In accordance with the prescribed procedure an affidavit has been filed by the solicitor for each party concerning the amounts of those costs. The solicitor for the Plaintiff estimates that the costs of the Plaintiff will total $45,000. The solicitor for the Defendant estimates that the costs of the Defendant will total $32,000.
10 In addition, the legal costs which have been incurred by the estate to the present time, including costs relating to the obtaining of probate and the administration expenses of the estate, total about $27,325.
11 It would appear that the Deceased, who was not resident in Australia for tax purposes from 1989 until the date of his death and did not lodge Australian income tax returns for that period, was not liable in respect to Australian income tax. A letter from the Deceased to the Commissioner of Taxation dated 26 July 1989 set forth the Deceased's understanding in that regard. There appears to have been no liability of the Deceased for income tax during that period, and in consequence no provision for any such liability should now be made by the estate.
12 The Plaintiff asserts that she was a person with whom the Deceased was living in a domestic relationship at the time of his death, and that, in consequence, she is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act. In this regard, I note that the proceedings were instituted after the commencement of the amendments to the Family Provision Act effected by the Property (Relationships) Legislation Amendment Act 1999. By virtue of those amendments the phrase "domestic relationship" has the same meaning in that statute as it has in the Property (Relationships) Act 1984 - this is, a de facto relationship, or a close personal relationship. Those phrases are defined in section 4 of the Property (Relationships) Act.
13 Further, in the event that the Court be not satisfied that she was a person with whom the Deceased was living in a domestic relationship at the time of his death, then the Plaintiff asserts that she had been a member of the same household as the Deceased and that she had been partly dependent upon the Deceased, and that, in consequence, she is an eligible person within paragraph (d) of the definition of that phrase.
14 The Defendant denies the foregoing assertions, and disputes the status of the Plaintiff as an eligible person in relation to the Deceased. I shall, in due course, return to this critical question of the status of the Plaintiff as an eligible person.
15 The Plaintiff was born in China on 18 December 1954, and is presently aged forty-six. The Plaintiff arrived in Australia in about November 1988. According to the Plaintiff, she first met the Deceased in 1988, and they commenced a sexual relationship at the end of 1989. At the time when they met the Deceased was residing in the Raglan Street property, and the Plaintiff was living in rented accommodation at Stanmore Road, Stanmore. The Plaintiff moved into occupation in the Raglan Street property in about April 1991 (at, according to her, the suggestion of the Deceased). At that time the Deceased was working in Thailand, where he spent the major part of each year.
16 The Plaintiff remained in residence in the Raglan Street property from April 1991 until the death of the Deceased (with the exception of a period of fifteen months, an absence which, somewhat curiously, was omitted from her affidavit evidence in chief), and she has continued in residence since then to the present time. She had paid no rent or occupation fee to the estate of the Deceased for the benefit which she has received from occupying the Raglan Street property after the death of the Deceased and, indeed, she has herself been receiving income ($80 a week) from letting out part of that property in the period since the death of the Deceased).
17 The Deceased, who was born in Trinidad on 6 April 1940, appears to have been of English upbringing and education. He was a civil engineer by profession. In 1965 he left England to live and work in Australia. He held an Australian passport, although the evidence does not disclose when he became naturalised as an Australian citizen. In September 1989 he left Australia to take employment with Sindhu Maunsell Consultants in Thailand. With the exception of the trips to Sydney to which I will shortly refer, the Deceased resided and worked in Thailand from then until his death, at the age of fifty-eight.
18 Whilst the Deceased was in Thailand the Plaintiff was involved in what might be described as the administration of the Raglan Street property (although other persons who resided therein were also involved in overseeing the property). At the direction of the Deceased, she attended to various aspects of the maintenance of that house property. She paid a number of small bills in relation to household outgoings from moneys which the Deceased left with her, informing him of what she had done in that regard. They kept in regular communication by telephone, mail or facsimile transmission. A number of more significant bills and business communications such as bank statements were forwarded by the Plaintiff to the Deceased in Thailand.
19 A considerable quantity of evidence was devoted to the circumstances surrounding the acquisition by the Deceased of a house property at Pattaya in Thailand, and the reconstruction of the dwelling upon that property. That house property, which the Deceased had previously occupied as a tenant, was purchased by him (through the vehicle of a company) in about 1997. The Deceased then had the house itself totally rebuilt, and he remained in occupation of the newly constructed residence until his death in February 1999. According to the Plaintiff, that house property (in which, however, she herself did not ever reside and which she did not ever even visit) had been intended by the Deceased and by her to be their matrimonial home. In this regard it should be recorded that, although during the period of her alleged de facto relationship with the Deceased the Plaintiff visited Asia on two separate occasions, she did not choose to include in those trips a visit to Thailand, to be with the Deceased and to see the house which, according to her, was to become her home.
20 It was asserted by the Plaintiff that during the Deceased's visits to Sydney he and the Plaintiff went out together frequently; that they often ate at a Chinese restaurant and at the Mosman Rowing Club (the Deceased always paying for those meals); that they often had friends to dinner at the Raglan Street house; that the Deceased always visited his doctor when he was in Sydney, and that the Plaintiff accompanied him on those visits.
21 Throughout most of the period whilst the Plaintiff was in residence in the Raglan Street property she was in employment. However, that employment was usually of a casual nature. The Plaintiff said that the reason for that was because the Deceased had in contemplation taking an early retirement, and that he was desirous that the Plaintiff should be available to spend that retirement with him. In consequence, according to the Plaintiff, the Deceased expressed to her a wish that she should not work in permanent full-time employment.
22 Since June 1998 the Plaintiff has been employed as a cashier at the Chinese Cultural Club. In that position she works from 6pm to 2am, receiving a salary of $468 a week gross ($409 a week net). In addition, she receives an allowance of $30 a week in respect to her employment, and has additional income of about $25 a week, that amount representing interest upon deposits totalling $19,000 held in a bank account and dividends upon shares having a present value of about $56,000.
23 The Defendant has a credit card liability in an amount of $2,200, and also owes her solicitors about $15,000 in respect to the costs of the present proceedings.
24 From September 1989 the Deceased was essentially working full-time in Thailand. From then until his death in February 1999, some nine and a half years later, it was usual for the Deceased to return to Sydney and stay in the Raglan Street property twice a year (being in April and in November/December in each year), those visits being for periods ranging from eight to fourteen days on each occasion. However, from December 1991 until December 1993 the Deceased did not visit Sydney; neither did he visit Sydney from April 1994 until April 1995.
25 A considerable quantity of evidence was given by various friends and acquaintances of each of the Deceased and the Plaintiff concerning the observations of those witnesses in relation to the presence of the Deceased in the Raglan Street property and the manner in which the Deceased and the Plaintiff comported themselves together whilst in the presence of other persons.
26 Amongst those witnesses who provided affidavits were Gregory Alan Eisenmenger, who (together with his wife) had resided in the Raglan Street property from October 1989 until April 1991. During that period the Deceased was living in Thailand, although he visited Australia and stayed in the Raglan Street property each April (for his birthday) and each December whilst Mr and Mrs Eisenmenger were in residence.
27 Another of those witnesses was Noel Thiele, who had resided with the Deceased in the Raglan Street property from 18 July 1987 until 16 April 1988, before the Deceased departed for Thailand.
28 It was the practice of the Deceased whilst he was residing in Thailand to communicate with Mr Thiele (by telephone or by facsimile transmission) some time before each of his regular visits to Sydney, with the request that Mr Thiele should during the Deceased's forthcoming visit arrange at least one social function for him. That was particularly so in respect to his April visits, when the social function was intended as a celebration of the Deceased's birthday (which fell on 6 April).
29 From the Deceased's departure from Australia in September 1989 until his own departure from Sydney in November 1995 Mr Thiele socialised with the Deceased frequently during his visits to Sydney and attended a total of about thirty-four functions with him, those functions including dinners and luncheons. Mr Thiele, having reviewed his personal records, including diaries, compiled a schedule (annexure A to his affidavit of 24 February 2000) in respect to those social occasions, setting forth, amongst other matters, the number of persons attending. According to Mr Thiele the Plaintiff attended only ten of those thirty-four functions.
30 Some weeks before April 1990 the Deceased communicated by way of facsimile transmission with Mr Thiele, requesting him to arrange a party to celebrate the Deceased's fiftieth birthday on Friday, 6 April 1990. The Plaintiff did not attend that celebration. It was almost always Mr Thiele who would collect the Deceased at the airport on his arrival and return him to the airport on his departure when he visited Sydney from Thailand between 1989 and 1995. Mr Thiele removed from Sydney to South Australia on 27 November 1995. However, he thereafter maintained contact with the Deceased by telephone.
31 From August 1995 to November 1996 the Plaintiff was resident in Melbourne, where she conducted a photographic shop business, which she had purchased in that city. That absence from the Raglan Street property for a significant period was not referred to in the Plaintiff's principal affidavit filed in support of her claim. According to her evidence the Plaintiff returned to the Raglan Street property each month, and was always in residence there during the visits of the Deceased from Thailand. The Plaintiff sold the business in Melbourne in November 1996, that sale resulting in a significant profit to the Plaintiff.
32 Although the Plaintiff asserted that she was the only person who resided in the Raglan Street property on a permanent basis from April 1991 until the death of the Deceased (and, indeed, to the hearing of the present proceedings), the evidence discloses that a considerable number of other people also lived in that property for various periods during that time. Those other persons included a Chinese lady, Helen Lin Jin Heng; a Thai couple, Max and Rattana Taprasert; Noel Thiele; Gregory Eisenmenger and his wife Kittiluck.
33 At the time when the Plaintiff said that she commenced to reside in the Raglan Street property in April 1991 there was already living in that house another Chinese lady, Helen Lin Jing Hang (referred to in the evidence as Helen Lin), who resided there from December 1988 until April 1993. It would appear that Miss Lin (through whom the Plaintiff originally met the Deceased) was residing in the house in the capacity of at least a girlfriend to the Deceased.
34 The accommodation in the dwelling at Raglan Street included three bedchambers. When she arrived there the Plaintiff occupied the smallest of those rooms (what was described as the third bedroom), whilst Miss Lin occupied the largest (what was described as Mike's room).
35 Despite assertions of the Plaintiff to the contrary, I am satisfied that she continued to occupy the third bedroom except when, on occasions during visits by the Deceased to Sydney, she resorted to the Deceased's accommodation in the principal bedchamber.
36 It is a fair summary of the evidence of those co-residents of the Raglan Street property that the Plaintiff, although generally residing in that property, was there essentially in the role of an administrator or housekeeper. Further, that she was not the only lady who was present during the short periods whilst the Deceased visited the property, and that she appears not to have been alone in providing favours of a personal nature for the Deceased during those short periods.
37 For example, during one of the visits by the Deceased to the Raglan Street residence, in December 1998, he brought with him, at his expense on a first-class air ticket from Bangkok, a Thai lady Orasa Fong-In (also known as Sar). During that visit, throughout which the Deceased and Sar were sharing a bedchamber, it is unlikely (although not impossible) that the Plaintiff was providing for the Deceased even sexual favours.
38 It will be appreciated that at the outset it is necessary to establish whether or not the Plaintiff is an eligible person in relation to the Deceased. She asserted that she was the de facto spouse of the Deceased at the time of his death and that, in consequence, she is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act.
39 I have had the benefit of receiving written outlines of submissions from Counsel for the respective parties. Those written outlines will be retained in the Court file.
40 In regard to the alleged status of the Plaintiff as the de facto spouse of the Deceased, it is relevant that in 1991 the Plaintiff made to the Department of Immigration an application for permanent residency in Australia. In support of that application the Plaintiff was required to provide written documentation and she was subsequently required to participate in an interview with an officer of the Department.
41 The file of the Department of Immigration in respect to that application by the Plaintiff for permanent residency was in evidence before me (Exhibit 6). The Plaintiff was cross-examined concerning the contents of that file, and, in particular, concerning the form upon which she grounded her application, and concerning the interview conducted with her in November 1991.
42 It was the assertion of the Plaintiff at the time when she made application for permanent residency that she was entitled to such permanent residency in consequence of her being at that time the de facto partner of one John Francis Clarke. In fact, Mr Clarke supported the Plaintiff's application and accompanied her to the interview in November 1991.
43 It will be appreciated that if, as she alleged to the Department of Immigration, the Plaintiff was in 1991 the de facto partner of Mr Clarke, she could not at that time have been also the de facto partner of the Deceased. Nevertheless, in the present proceedings she asserts that she was at that time the de facto partner of the Deceased.
44 The Plaintiff attempted to explain this inconsistency by saying that, although she had previously been the de facto partner of Mr Clarke, her relationship with Mr Clarke had already come to an end at the time when she was making her application to the Department of Immigration. She also asserts in the present proceedings that the information which she gave to the Department of Immigration, both in her written form of application and during her oral interview with the officer of the Department, was false. That is, it was the sworn evidence of the Plaintiff in the present proceedings that the information which she had given to a Department of the Commonwealth Government (including information given by her in a statutory declaration dated 28 September 1989) was, in her own words, a lie. Such an explanation, even if ultimately accepted as being accurate, reflects most unfavourably upon the character and the credibility of the Plaintiff. It means that she was prepared to lie to the Commonwealth Government in order to obtain for herself an advantage, that advantage being the right to reside permanently in Australia. (It should here be noted that the Plaintiff was successful in her application for permanent residency.)
45 It is also relevant in regard to the application made by the Plaintiff to the Department of Immigration that that application was supported by a letter from the Plaintiff's sister in China written in February 1991 concerning the asserted knowledge by the Plaintiff's sister that the Plaintiff was living in a de facto relationship with Mr Clarke. According to the Plaintiff, the content of that letter was false, since, at the time when the letter was written the Plaintiff was (according to her) no longer living in a de facto relationship with Mr Clarke, but was living in a de facto relationship with the Deceased. The explanation offered by the Plaintiff concerning this false statement in the letter from the Plaintiff's sister was that the letter had, in fact, been written in terms directed by the Plaintiff, and, further, that, although the Plaintiff's sister was aware of the existence at an earlier time of a de facto relationship between the Plaintiff and Mr Clarke, she had not been informed by the Plaintiff that the relationship had already come to an end by February 1991. The Plaintiff's sister did not give evidence in the present proceedings.
46 Once again, if that explanation of the Plaintiff concerning the letter from her sister supporting the Plaintiff's application for permanent residency be accepted, the conduct of the Plaintiff in this regard (and, possibly, that of the Plaintiff's sister) reflects no credit upon the Plaintiff.
47 Evidence was given by Mr Clarke, by way of affidavit and under cross-examination. The purport of his evidence was that he first met the Plaintiff in 1989 in Australia and they entered into a de facto relationship. Based upon that relationship he supported the Plaintiff's application for permanent residency. The de facto relationship broke down in April 1991 when the Plaintiff went to reside at the Raglan Street property. However, Mr Clarke maintained a good relationship with the Plaintiff, and was hopeful of what he described as a "reconciliation" with her. He continued to support the permanent residency application which the Plaintiff made in August 19991 and for that purpose he attended an interview with an officer of the Department of Immigration in November 1991. In December 1991 he was, so he said, informed by the Deceased that the Plaintiff and the Deceased were in a de facto relationship, and that, in consequence, it would not be possible for him to effect a reconciliation with her. (I would here interpolate that it was also in December 1991 that the Plaintiff, in providing to the Department of Immigration personal particulars for character assessment, maintained her statement that she was in a de facto relationship with John Francis Clarke.)
48 Although Mr Clarke was aware from at least the time when the Plaintiff went to live in the Raglan Street property in April 1991 that the de facto relationship between himself and the Plaintiff had come to an end, nevertheless he did not inform the Department of Immigration of that fact. Further, in November 1991, that is, some seven months later, Mr Clarke accompanied the Plaintiff to the interview with Mr Harvey Purse, an officer of the Department of Immigration, and maintained to Mr Purse that he and the Plaintiff were still living in a de facto relationship. That information maintained by Mr Clarke to the Department of Immigration was false, and Mr Clarke at the time of that interview was fully aware that it was false.
49 It should here be recorded that, irrespective of whether or not the de facto relationship in which the Plaintiff was living at the time was a relationship with Mr Clarke (as she then asserted) or with the Deceased (as she now asserts), some of the information given by the Plaintiff and Mr Clarke at the interview in November 1991 was, in any event, totally false: for example, the assertion that she and Mr Clarke were paying to the Deceased rent of $400 a month. No rent or occupation fee was ever paid by the Plaintiff to the Deceased. Similarly, the sketch which the Plaintiff drew for Mr Purse at that interview concerning the sleeping arrangements of the various residents at the Raglan Street property was false in depicting the Plaintiff and Mr Clarke as occupying the second bedroon.
50 Mr Clarke in his oral evidence stated that in 1991 he was aware that he was misleading the Department of Immigration.
51 The conduct of Mr Clarke after his relationship with the Plaintiff finally broke down in April 1991 reflects very badly upon the credibility of Mr Clarke, as well as upon the credibility of the Plaintiff herself. It is quite apparent either that the Plaintiff and Mr Clarke in 1991 conspired to mislead a Department of Government of the Commonwealth of Australia in order to obtain an advantage for the Plaintiff, or, alternatively, that each of them has in the present proceedings given false evidence. In either case their conduct has been most dishonourable, and reflects extremely poorly upon the credibility to be given to the evidence of each of them.
52 Also relevant to this question of whether or not the Plaintiff was at any stage living in a de facto relationship with the Deceased, is the fact that throughout the period of fifteen months whilst she was living and working in Melbourne the Plaintiff lodged income tax returns. In no such return did the Plaintiff disclose (as she was required by the terms of each return) that she was either married or living in a de facto relationship, and, if so, the name of her spouse or partner. If, as she asserts in the present proceedings, she was in a de facto relationship with the Deceased from 1991 until the date of the death of the Deceased, then the information contained in her income tax returns lodged during that period is incorrect, in that it does not, as required by the terms of each such return, disclose the name of the Deceased as the de facto partner of the Plaintiff.
53 In regard to the Plaintiff's alleged status as the de facto spouse of the Deceased, it is also relevant that for about a year, from late 1996 until about Christmas 1997, the Plaintiff was in receipt of an Austudy allowance. In her application for that allowance the Plaintiff did not disclose the Deceased as her de facto husband. Similarly, she did not disclose the Deceased as her de facto husband when she made application for a Jobstart allowance.
54 I have already observed that the phrase "domestic relationship" appearing in paragraph (a)(ii) of the definition of "eligible person" in the Family Provision Act is given the same meaning as in the Property (Relationships) Act. That latter statute describes a de facto relationship in section 4 thereof. Subsection (2) of that section is in the following terms,
In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: