Marsh-Johnson v Hillcoat

Marsh-Johnson v Hillcoat - [2008] NSWSC 1337 - NSWSC 2008 case summary — Zoe

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1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Douglas Kirkpatrick who died on 30 August 2006 aged 57 years. He was survived by the plaintiff with whom he had a relationship for the previous 11 years, his three stepchildren and his former wife. LAST WILL OF THE DECEASED 2 The deceased made his last will on 18 March 1988 before he had met the plaintiff. He appointed the defendant, his stepdaughter as the executor. By his will, the deceased gave the whole of his estate to his three step-children, Mark Forsyth aged 39 years, Glenn Forsyth aged 38 years, and the defendant aged 35 years in equal shares. THE ESTATE OF THE DECEASED 3 The deceased's main asset was a unit at Ball Place, Albion Park which has now been sold. After payment of debts, there is cash in the estate of $229,744 which will accrue interest at $3,398 on 4 February. This sum of $233,142 is after paying the defendant's legal costs of $38,000. The remaining defendant's costs will be about $11,000 and the plaintiff's costs are estimated to be in the order of $50,000. FAMILY HISTORY 4 The deceased was born in February 1949 and the plaintiff in December 1960. The stepchildren who were children of Christine Beddall, who became the deceased's second wife, were Mark, Glenn and Kylie. Mark was born in August 1969, Glenn in November 1970, and Kylie in August 1973. The deceased's first marriage was to Jennifer Waugh in 1974 and he divorced her in 1980. There were no children of the marriage. He married Christine Beddall in November 1981. 5 The deceased made his last will on 18 March 1988, as I have already mentioned. He was divorced from Christine in January 1995, and in September, the plaintiff and the deceased commenced their relationship. The plaintiff at that stage had two children, Nicholas who was born in December 1986 and Mitchell born in February 1988. The plaintiff divorced from her husband in April 1996. 6 In July 1996, the deceased commenced to live with the plaintiff at her home at Melinda Grove, Lake Heights near Wollongong. The reason for him doing this was because he could not meet the obligations on his mortgage and he could not recover his unit until about November 1996, when he did so with the help of his sisters. He then moved back to that unit. 7 In 1997, the deceased commenced work with Boral Transport and in 1999 he changed work with a company called Load Haul. 8 On 10 June 2000, the plaintiff and the deceased announced their engagement to be married. 9 By February 2003, the plaintiff's youngest son, Mitchell had turned 14. At this time, the plaintiff started to spend two nights a week at the deceased's home, leaving her children alone in her house. They continued to spend weekends together. 10 The deceased died on 30 August 2006. He died suddenly and unexpectedly from an aneurysm. He was in good health until then. 11 Letters of administration with will annexed were granted to the defendant on 15 November 2006. 12 The deceased and the plaintiff had set a date for their wedding, 30 December 2006, and it did not come to pass because of the deceased's death. 13 The proceedings were commenced within time on 5 September 2007. ELIGIBILITY 14 The plaintiff says she is an eligible person on three bases. First, she says she and the deceased were living together in a de facto relationship although not married. Second, she says that she and the deceased enjoyed a "close and personal relationship" as defined in section 5(1)(b) of the Property (Relationships) Act 1984 from June 1995 up until the deceased's death. Third, and in the alternative, the plaintiff says she was a member of the household of which the deceased was a member and was partially dependent on the deceased during the course of their relationship, particularly for the accommodation during the time she stayed at the deceased's house at Albion Park Rail and also during a period of unemployment.

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(g) In the three month period prior to the deceased's death, he was working at Wetherill Park working a midday to midnight shift. The plaintiff spent weekends at the deceased's home together with the deceased when he was not working. When the deceased was working, the plaintiff cooked for him and left his dinner in the microwave. WHETHER A SEXUAL RELATIONSHIP EXISTED 20 It is clear that there was a sexual relationship between the plaintiff and the deceased. THE DEGREE OF FINANCIAL SUPPORT 21 Each maintained their own bank accounts and kept their financial affairs separate. Occasionally they would assist the other by, for example, meeting a bill or putting fuel in someone's car. There was a time from 2005 to March 2006 when the plaintiff was not in full-time employment. In this period she had some casual employment, maybe a week at a time, or sometimes a day at a time. In paragraph 39 of her affidavit of 1 May 2008 she said: "Centrelink has rules about cohabitation and the amount of time you can spend with each other. We complied with these rules. I was not receiving benefits at all times and had not received full benefits for many years. There was a period of time I was receiving no payments because although I was not working I had too much savings in the bank. Doug supported me during this time." 22 This shows some degree of support by the deceased of the plaintiff. The matter was not expanded upon in cross-examination. OWNERSHIP OF PROPERTY 23 There was no jointly owned property and each owned their own residence during the relationship. The plaintiff's residence was not subject to any debt, although, apparently, the deceased's unit was subject to a mortgage. THE DEGREE OF MUTUAL COMMITMENT TO A SHARED RELATIONSHIP 24 Marriage was discussed from time to time during the relationship. In June 2000, the deceased bought the plaintiff an engagement ring which she continues to wear. There was an announcement of the engagement at a party with friends on the plaintiff's 40 birthday. They planned to marry on 31 December 2006, but the deceased died before that date. Apart from this, there is no particular relevant evidence apart from the living arrangements. THE CARE AND SUPPORT OF CHILDREN 25 There is virtually no evidence of the deceased's care and support for the children. PERFORMANCE OF HOUSEHOLD DUTIES 26 As can be seen from the above, the plaintiff did housework and domestic chores for the deceased but this was not full-time. REPUTATION AND PUBLIC ASPECTS 27 Although the plaintiff gave some evidence of she and the deceased socialising together and he introducing her as his wife on occasions, there is no other evidence to support this evidence. None of the usual forms of evidence which one often sees in these cases, evidencing the public aspects of the relationship, were present in this case. OTHER MATTERS 28 The plaintiff gave evidence of the reasons for not living together with the deceased on a full-time basis. In her affidavit in reply she gave the following evidence in paragraphs 16 and 39: "16. Not living together full time was a joint decision between Doug and I. My son Nicholas had a very loving relationship with Doug. However, my son Mitchell has Asperger's Syndrome and does not have a bond with anyone, including myself and his father. He also finds it difficult to communicate with anyone. Doug was a strict disciplinarian and with Mitchell this was a potential source of problems for us and a key reason why we did not live together full time. Mark was aware of this and had said, "I feel sorry for your kids. I know what Doug is like." 39. Centrelink has rules about cohabitation and the amount of time you can spend with each other. We complied with these rules. I was not receiving benefits at all times and had not received full benefits for many years. There was a period of time I was receiving no payments because although I was not working I had too much savings in the bank. Doug supported me during this time."

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30 The reference to the Centrelink rules in paragraph 39 which I have quoted does of course have no bearing on my determination of the question other than supporting the plaintiff's version that she has given of her living arrangement. This evidence also, which is somewhat surprising in a case like this, does support my view that the plaintiff was a truthful witness that I can accept her uncorroborated evidence. This is one of the rare cases where people apparently have tried to live within the law for the purposes of obtaining their entitlements from Centrelink. 31 The first two sentences of paragraph 46 are revealing, and given the deceased's could be argumentative, they probably availed themselves of this opportunity to live their lives separately at times and have the retreat available to withdraw from the other person. This opportunity to retreat from the relationship points against their being a de facto relationship. 32 There have been of course cases where a part-time relationship has met the requirements of being a de facto relationship. Weston v Public Trustee (1986) 4 NSWLR 407 and Ward v Anderson (Unreported) Wardell CJ 6/6/89 are examples. All cases are different on the facts. In the present case, the changes over time in the nature of the deceased's working arrangements did not lead to the parties spending more time together. This is particularly true in respect of the time later when he was working just ordinary daytime hours and was not involved in long-haul driving. It seems to me that the parties kept limited arrangements for good personal reasons and I would not conclude that they were in a de facto relationship. WHETHER THE PARTIES WERE IN A CLOSE PERSONAL RELATIONSHIP 33 This requires that the parties live together although not as a couple. In Przewoznik v Scott [2005] NSWSC 74 McDougall J said at 21 the following: "The authorities make it clear that parties may be in a de facto relationship, or (under a former version of s 6 of the Family Provision Act) living together as man and wife on a bona fide domestic basis, even though their cohabitation is not continuous and even though it occurs in different premises. I see no basis for concluding that the words "living together" in s 5(1)(b) of the Property (Relationships) Act should be given any substantially different meaning to the words "live together" in s 4(1)(a). I therefore conclude that the evidence is capable of supporting the conclusion that the plaintiff and the deceased were, for a period of time, at least from the second half of 1999 until the deceased's death on 1 December 2003, living together. Further, there being no real evidence to controvert that, I think that I should conclude that they were living together."

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45 Beazley JA at paragraph 1 said that she "substantially agreed with the reasons of McColl JA". One thus is in some difficulty in deciding what is the ratio of the decision. It appears that comments on this aspect were obiter as the court found for a later de facto relationship which resolved the matter. 46 On the view which I have expressed, it is clear on the evidence that there was domestic support but there is no evidence of any personal care in the sense to which I have referred in the cases where I have discussed it. However, the evidence is also silent on whether there was emotional support and it would be necessary to infer such support from the fact that the parties had had a sexual relationship and spent part of their time together. I think it is inappropriate to so infer such support in the absence of any direct evidence on the matter. Given the broad range of relationships between persons, I would not think that the inference of emotional support is more probable than not. I would conclude that there was no close personal relationship at the date of death. PART OF THE HOUSEHOLD AND PARTLY DEPENDENT 47 These requirements do not have to be met at the date of death. There was period of four months when both lived full-time at the plaintiff's house. This is a reasonably substantial period and I am satisfied that the plaintiff and the deceased were members of the same household. 48 In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. Samuels J at page 490 said the following: "His Honour concluded that 'dependent' meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person', par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. 'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey L.J. In Lee v. Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probabilities'. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency."

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51 In Benney v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of an emotional relationship between them. 52 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the court once again considered the meaning of dependency. At page 346 the court had the following to say: "I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v. Newey (1988) 13 NSWLR 489 at 491, that '"dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'. If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop Deceased or to 'other forms of dependance analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v. Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v. Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

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The provision of accommodation in the deceased's house. 56 On the first matter, the question is whether having regard to the sparse nature of the evidence, which I have set out above, the dependence could be classified as "more than minimally" or perhaps "significantly". Having regard to the period of nine months, I think I would classify it as more than minimally. On the other question, each owned their own home. In the plaintiff's submission the lifestyle that they chose was designed to give both of them privacy from the children for a few nights a week in the middle part of the relationship and this involved the plaintiff being dependent upon the deceased for her accommodation at those times. The evidence is clear that they chose this living arrangement, which is not unreasonable, in order to support the mode of life that they wished to pursue. I think in these circumstances the fact that each had a separate house or a unit is irrelevant. In my view, the plaintiff was partly dependent upon the deceased. The plaintiff is, therefore, an eligible person. FACTORS WARRANTING 57 In considering relevant factors, it is necessary under section 9(1) of the Family Provision Act for the court to first determine whether there are factors warranting the application. This expression has been dealt with by courts on a number of occasions in Re Fulop Deceased (1987) 8 NSWLR 679 at 681. McLelland J described that expression in the following terms. "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 58 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added: "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."

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60 In the present case it was a long-standing relationship. The parties were engaged and even the deceased's former wife noticed the engagement ring. They had a date for their wedding set. In my view, there are, on the traditional basis, factors warranting the making of the application. I will consider whether there are prospects of success. 61 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 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."

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THE PLAINTIFF'S SITUATION IN LIFE 62 The plaintiff is 47 years of age, single, with two dependent children aged 22 and 20. She works as a superannuation clerk with Pillar Administration earning a gross wage of $42,000 per annum. Her assets consist of a three bedroom home worth somewhere between $270,00 and $345,000. She has a car worth $10,000, superannuation of about $16,000, cash of about $30,000, and shares of about $2,000. She has a debts of $2,500. 63 I had already addressed the relationship in making my earlier comments on the question of eligibility. She did not contribute to the estate of the deceased. 64 It is also necessary that I consider the situation in life of others having a claim on the bounty of the deceased in this case - the three beneficiaries of the estate, the three step-children. THE SITUATION IN LIFE OF KYLIE HILLCOAT 65 Kylie is married, aged 35, and has three children aged between 7 and 10. She and her husband have a home worth $650,000 which is subject to a mortgage of $135,000. They have a share in an investment property but they have little equity in that place. They have a caravan worth $20,000 and a car worth $45,000. The husband works for a family business and there is a net wage of, apparently, $1,200 per week for the family. 66 So far as relationship between the deceased and Kylie is concerned, it was not good. Since the separation of the deceased and her husband, they had a disagreement, and Kylie did not see him for the last five years of his life. She made no contribution to the house, and if she receives something from the estate, she wants to spend a little over $30,000 doing repairs to her house. SITUATION IN LIFE OF GLENN DAVID FORSYTH 67 Glenn is 38 years old, single, and has no dependants. He has a house worth between $320,000 and $350,000, which is subject to a mortgage of $85,000. He also has an investment property with equity in it worth about $15,000. He has cars worth $32,000, cash of $11,500, and he works as a self-employed electrician, however, that is not particularly remunerative as he earns about $20,000 per annum net. 68 He did not in his affidavit evidence put forward any details of the relationship which he had had with the deceased, and the court can assume, therefore, that he does not want this taken into account. He apparently only saw him when he bumped into him by chance. He made no contribution to the estate, and if he receives something, he wants to do some repairs to his house worth $38,000. THE SITUATION IN LIFE OF MARK DAVID FORSYTH 69 Mark is 39 years of age. He does not put forward any financial information. Accordingly, the court can assume he does not want the court to take that into account when considering the matter. He had a relationship over the years with the deceased at work, as they worked together, and that at times was apparently fiery. He certainly has not seen him a lot in the years before he died. He made no contributions to the estate. CONSIDERATION OF RELEVANT FACTORS 70 It is necessary to see how the plaintiff says she has been left without adequate proper provision for maintenance, education and advancement in the life. The plaintiff's claim is for provision out of the deceased's estate which would enable her to:

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