Marsh-Johnson v Hillcoat

SOLICITORS : Williamson Isabella for plaintiff Access Business Lawyers for defendant

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

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.

RELEVANT SECTIONS OF THE PROPERTY (RELATIONSHIPS) ACT

15 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. 16 That Act applies to domestic relationships which are defined in s 5 as follows: "5. Domestic relationships

(1) For the purposes of this Act, a domestic relationship is:

(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:

(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,

(c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman:

(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 party to such a relationship."

It can be seen from the terms of s 5 (1) that a domestic relationship can be either a de facto relationship or a close personal relationship.

The definition of de facto relationship itself appears in s 4 and is in the following terms:-

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and (b) who are not married to one another or related by family.

(2) 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:

(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 interdependence, 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 section 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."

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 95120 applying Simonis v Perpetual Trustee Co Ltd (1990) 21 NSWLR 677. " 17 I will first deal with the claim that the plaintiff and the deceased were in a de facto relationship at the time date of death. It is convenient to address in the terms of the relevant criteria in section 4(2) and (3) of the Act. DURATION OF THE RELATIONSHIP 18 The period of relationship was 11 years. THE NATURE AND EXTENT OF ANY COMMON RESIDENCE 19 This is a critical issue in this case. Each of the plaintiff and the deceased had their own unit or house. The plaintiff had the custody of her two children who were aged seven and nine at the commencement of the relationship. The deceased was by then divorced and his stepchildren were leaving separately from the deceased. The living arrangements differed, from time to time, but in terms of the period of residence, it seems that the situation was in part usefully summarised in submissions in terms which I will modify and incorporate to accommodate the situation as it appeared in the evidence: (a) Between June 1995 and 1996 the deceased worked as an inter-state truck driver being away four nights a week. He generally spent three nights at home at the plaintiff's home. During this time on every second school holidays the plaintiff spent two weeks at the deceased's home. This was because her children were at that stage with their father.

(b) Between July 1996 and November 1996 the deceased lived at the plaintiff's home because his home at Albion Park Rail had been repossessed.

(c) Between 1997 and 1999, when the deceased worked for Boral doing the local trips, the plaintiff and the deceased spent alternate weekends at each other's homes. During the week, as the deceased started work at 4am, he came to the plaintiff's home for dinner and then went back to his home to sleep at night. There was a period during this time when the deceased was away for a number of months at Goulburn for work reasons.

(d) In 1999, the deceased started work with Load Haul. He had a management position with that company and worked from 8am to 5pm. Up until 2003, the plaintiff and the deceased spent alternate weekends at each other's home. The deceased slept in his home during the week. The plaintiff cooked and cleaned for the deceased and sometimes stayed overnight at his home during the week.

(e) In 2003, when the plaintiff's youngest son turned 14, the plaintiff and the deceased spent on average two nights a week during the week together. They also spent weekends together at the decease's residence. Occasionally, during this time, the deceased stayed over at the plaintiff's home.

(f) In 2005, there was a break in the relationship for some weeks after an argument over a credit card bill. It then recommenced.

(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."

29 In answer to an allegation about not having the keys to the deceased's unit for some months, she also gave the following evidence in paragraph 46 from her evidence: "46. I deny that Doug and I ever split up. We had the luxury of returning to our own homes if we ever fought. I never removed my engagement or friendship rings. The only time I returned my keys was when his friend Peter Jones was visiting from Queensland to stay and needed to give him access to the unit. Peter stayed for three months until he sold his business 'The Cheesecake Shop'."

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."

34 This matter was also dealt with more recently by McColl JA in Hayes v Marquis [2008] NSWCA 10 at paragraphs 75-82 as follows: "75 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.

76 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.

77 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. 78 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.

79 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 s4.

80 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.

81 Young J (as his Honour then was) so held in Weston v Public Trustee (1986) 4 NSWLR 407, a case which concerned the phrase "living ... as his wife…on a bona fide domestic basis" in s 6 of the Family Provision Act 1982. The applicant had been in a relationship with the deceased for thirty years during which time he had stayed at her flat in Homebush several days every week but had kept a separate residence in Bondi. They had holidayed together, shared a car for which the applicant paid and garaged, but whose operating expenses were paid for by the deceased. She had done almost all his laundry.

82 Young J held (at 408 - 409), by analogy with cases which turned on whether people had lived separately and apart for the purposes of grounds for divorce under the former divorce legislation, that the court "was not looking to see whether the parties were physically cohabitating but whether there was a relationship between them which was one which showed that the marriage relationship was still alive". The court was concerned to see whether the two parties had a bond akin to marriage. His Honour concluded that the word "living" in s 6 had the same connotation. Accordingly, it was not fatal to the applicant's case that she and the deceased had not physically lived in the same place seven days a week, fifty-two weeks a year."

35 Einstein J in that case also regarded that paragraphs 165 and 165 as important, the difference between living as a couple, which is required for a de facto requirement, and simply living together. In paragraph 166 he said the following: "166 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."

36 It can be seen from this that his Honour considers that it is possible that the two adults persons can be seen regarding the place or places in which they live as their home. In this case the parties did not regard themselves as living in both places and both places being the home because of the ability of each of them to retreat from the other in cases of arguments or disagreements. I do not think one could describe the parties as living together with such an arrangement. 37 The other requirement is the provision of "domestic support and personal care". This is a matter which I have commented on in a number of cases, including Dridi v Fillmore [2001] NSWSC 319 in these terms: "Apart from the exclusionary matters in s 5(2) there is no definition of " close personal relationship". Little help is obtained from the reading speeches as to the meaning of "close personal relationship". It is apparent from the terms of the separate definition of de facto relationship that a close personal relationship does not necessarily involve the concept of living together as a couple. Instead s 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 a grandparent and grandchild and the different definition for a "de facto relationship" 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".

38 So far as the first requirement is concerned since one is not concerned with concepts applicable to couples the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be a sharing of food or eating arrangements together. 39 The second requirement is cumulative. There must be both domestic support and personal care.

40 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 body or figure; bodily."

41 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.

42 The legislation in terms excludes the first two but would include the last two examples.

43 These comments of mine also attracted attention in Hayes v Marquis. McColl JA said: "85 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.

86 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.

87 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."

44 Einstein J disagreed with her view, commenting at paragraphs 167 to 168 in these terms: "167 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. 168 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."

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."

49 His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could have only received a partial benefit. At page 492 he addressed the argument in these terms: "Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v. Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v. Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is 'the actual fact of dependence or reliance on the earnings of another for support that is the test': per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v. Reeman (1973) 128 CLR 177 at 189. 'The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. "

50 This passage emphasises the factual nature of dependency be it financial or otherwise.

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."

53 In McKenzie v Baddeley (NSWSC unreported, 3 December 1991), His Honour Mr Justice Meagher, although in the minority, further discussed dependency and described it as "financial, economic or material dependency, not a mere emotional dependency". Important in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant "more than minimally" or perhaps "significantly". 54 In Williams v Legg (1993) 29 NSWLR 687 the Court in considering a case of a young child needing mothering pointed out that the absence of financial dependence is not conclusive. 55 The relevant dependency alleged is twofold:

1. The period when the plaintiff had part-time work and was supported by the deceased;

2. 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."

59 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

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."

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:

(a) Carry out necessary repairs to her own home, having an agreed value of $23,000; (b) Carry out necessary dental work, having an estimated value of $24,195; (c) Have a small capital sum which is in addition to her savings would provide a nest egg for the future. She asks for $70,000 and notes the fact that there are some uncertainties in respect of her present employment. 71 All these claims are reasonable ones but have to be seen in the light of the amount of the estate, the present cash reserves, and the competing claims in. In my view, an appropriate legacy for her is $50,000. 72 Accordingly, the order that I make is that the plaintiff receive a legacy out of the estate of the deceased in the sum of $50,000. I order that the defendant's costs be paid or retained out of the estate of the deceased on the indemnity basis. 73 So far as the plaintiff's costs are concerned, I am prepared to make an order for payment of some costs. But it seems to me that this is a very small estate, and given the notice that has been given in Practice Notes, and otherwise, I think it would be appropriate to cap the plaintiff's costs. The figure that I had in mind is $35,000, but I will hear submissions on that from the plaintiff. 74 I fix the plaintiff's costs at $35,000 and order that these costs be payable out of the estate of the deceased. Exhibits can be returned.

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