Morrison v Carruthers

Supreme Court of NSW|2010-04-30|Before: Bergin CJ, Mr J

CITATION : Morrison v Carruthers [2010] NSWSC 430

CATCHWORDS : SUCCESSION - family provision and maintenance - whether plaintiff is an eligible person - whether adult grandchild partly financially dependent upon deceased - matters to be considered in such applications

Ball v Newey (1988) 13 NSWLR 489 CASES CITED : McKenzie v Baddeley [1991] NSWCA 197 Petrohilos v Hunter (1991) 25 NSWLR 343 Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223

COUNSEL : A Hill (Plaintiff) J Mitchell (Defendants)

SOLICITORS : Armstrongs Solicitors Pty Ltd (Plaintiff) Burgess Lawyers (Defendants)

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

2008/281679 CATHY MORRISON v WARREN ERNST CARRUTHERS & ORS JUDGMENT 1 The plaintiff, Cathy Morrison, is the granddaughter of Emily Betsy Carruthers who died on 2 January 2008 (the deceased). The defendants, Warren Ernst Carruthers, Russell James Carruthers and Jayne Maree Morrison (Mrs Morrison) are the deceased's children and executors of the deceased's estate. Mrs Morrison is the plaintiff's mother. The plaintiff makes application for provision pursuant to s 7 of the Family Provision Act 1982 (the Act) out of the estate and/or notional estate of the deceased. 2 The deceased's last Will, dated 23 April 1996, left the whole of the estate to her three children, the defendants in the proceedings. Probate was granted on 28 April 2008 at which time the estate was valued at $370,759.52 consisting of the deceased's family home at 48 Railway Parade, Blackalls Park and an adjoining block of land at 48A Railway Parade, Blackalls Park (the property). The property is currently rented and the income has been used for upkeep of the property and the costs of this litigation. Eligibility 3 The plaintiff claims eligibility to make the application pursuant to the following provisions of s 6(1) of the Act: (d) a person: (i) who was, at any particular time, wholly or partly dependent upon the deceased person , and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member. 4 The plaintiff claims eligibility as a grandchild with partial financial dependency upon the deceased. 5 The matter was heard on 29 and 30 April 2010 when Mr A Hill, of counsel, appeared for the plaintiff and Mr J Mitchell, of counsel, appeared for the defendants. The plaintiff relied on her four affidavits; two in chief on 22 October 2008 and 23 April 2010 and two in reply on 17 July 2009 and 21 October 2009. The plaintiff also read the affidavits of Darien Leanne Cullen, a family friend, sworn on 21 October 2009; Kelly Morrison, the plaintiff's youngest sister, sworn on 16 October 2009; Teegan Jack sworn 25 November 2009 and the plaintiff's solicitor Stephen John Churches sworn 23 April 2009. The defendants relied on the affidavits of Warren Ernst Carruthers sworn 4 June 2009 and 21 August 2009; Russell James Carruthers sworn 3 July 2009 and 17 August 2009; Mrs Morrison sworn 9 June 2009; the deceased's sister, Shirley Marion Bottomley sworn 17 August 2009; the plaintiff's father, Alwyn Rex Morrison sworn 13 August 2009, and the defendants' solicitor, Damian Burgess, sworn 21 April 2010. All deponents except Ms Jack and the solicitors were cross-examined. 6 Counsel advised the Court that the affidavits of their respective clients and witnesses contained much inadmissible material, however they had decided that rather than spend valuable court time in trying to rectify the deficiencies, they would not take objections but ask the Court "to give appropriate weight" to those affidavits that the Court considered "necessary". There is no doubt that many parts of the affidavits are in inadmissible form with broad allegations and claims taking the place of admissible evidence as to the real facts of the matter. For instance the plaintiff made a broad claim that she "depended" on the money from the deceased to pay for certain items, without any particulars of her expenses and income during that particular period. The affidavits relied upon by the defendants had the same problem, for instance, including a claim that the deceased was "not well off". The respective parties' solicitors' affidavits disclose costs of $48,618 on the plaintiff's side and $84,194 on the defendants' side. It is highly unsatisfactory that such large amounts of money have been spent on preparing affidavits in such form. 7 The broad claims in the affidavits are of little assistance to either the parties or the Court in the assessment of the reality of the situation. It is unsatisfactory that the affidavits are in such a state, however it is understandable that counsel have sought to avoid further costs by not taking objections. Where there are matters of significance to the determination of the real issues in the proceedings I do not intend to give any weight to broad claims in inadmissible form without supporting material. Applicable principles 8 In Ball v Newey (1988) 13 NSWLR 489, Samuels JA with whom Hope and Mahoney JJA agreed, identified that the dependence claimed in that case was "only financial" and said at 491: "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 LJ in Lee v Munroe (1928) 98 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". Whilst 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. 9 His Honour also said at 492: 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 on 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). 10 In Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 Palmer J said: 42 Dependence for the purpose of s 6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance. 11 In Petrohilos v Hunter (1991) 25 NSWLR 343 Hope A-JA, with whom Clarke and Sheller JJA agreed, said at 346 that "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". In McKenzie v Baddeley [1991] NSWCA 197 Priestley JA, with whom Hope AJA agreed, described the receipt of $20 on earnings of $150 as a matter of "real importance" and "necessary" for the appellant's "daily life" and said: The word "partly" in the phrase "partly dependent" in par (d)(i) of the definition of "eligible person" is a word of some elasticity; it does not seem to me in its context necessarily to mean "substantially"; rather its suggests to me the meaning of "more than minimally" or, perhaps, "significantly". 12 It may be difficult to identify any real difference between the meaning of the words "substantially" ("of real importance or value") and "significantly" ("of real import") in this context: The Concise Oxford Dictionary, however I am of the view that financially "partly dependent" in this context means that the applicant relied on the deceased to provide financial support without which the applicant would not have been able to meet the reasonable costs of living. The assessment of dependency in respect of a child will be different from the assessment of dependency in respect of an adult. When an adult grandchild claims financial dependency there will be matters that need consideration that would not be relevant in the case of a child. It is important in this regard to draw the distinction between expectation and dependence. If an adult receives payment on a regular basis from the deceased and chooses not to obtain money from another available source because of the expectation of regular payment from the deceased, that does not amount to dependence within the meaning of that term in the Act. Financial dependency in the case of a healthy adult who is able to work means a necessity to rely on the deceased because there is no other source of finance available. 13 Although the Court's task in this regard has been described generally as one involving the consideration of "past events and future probabilities", I am of the view that in claims brought by healthy adult grandchildren who are able to work, dependence should be assessed by having regard to matters including: (a) the applicant's cost of living showing the break up of expenses on a weekly/monthly/or other (depending on the particular circumstances of the case) basis; (b) the income of the applicant (excluding the amount received from the deceased); (c) the amount received from the deceased on a weekly/monthly/or other basis; (d) whether the applicant was able to work and earn income to meet the reasonable costs of living that was otherwise provided by the deceased; (e) whether other sources of finance/income were available to the applicant to meet those living costs; (f) whether the applicant was able to work and chose not to do so; and (g) if the applicant chose not to work, whether that choice was necessary in all the circumstances, for instance, to care for the deceased; or infants; or elderly or infirmed members of the family.

The facts 14 The plaintiff was born on 1 February 1980 and is presently 30 years of age. She is one of five children being the younger sister to a brother, Casey, with younger twin sisters, Emily and Eileen, and a younger sister Kelly. The plaintiff has two sons, Cale, born on 12 January 2005 and Eli, born on 13 July 2007. 15 The plaintiff's father, Alwyn Rex Morrison (Mr Morrison), and Mrs Morrison were divorced in approximately 1997/1998. It is apparent that the plaintiff's formative years were difficult and her relationship with her mother was at times volatile. It is also apparent that presently there is quite a deal of tension, to use a neutral term, between the plaintiff and the defendants. 16 After her divorce Mrs Morrison formed a relationship with her present partner of 12 years, David Bowtell. Mr Bowtell owns a property at Stroud, New South Wales. Mrs Morrison suffered injuries in two motor vehicle accidents, one in 1996 and one prior to that date for which she was paid compensation in the amount of approximately $35,000 and $70,000 respectively. Mrs Morrison claims to have a residual back injury and Mr Bowtell has been her "carer" since 2006. 17 Mrs Morrison's brother, Warren Ernst Carruthers, the first defendant, is married with three children in their thirties. Mr Carruthers and his partner, Susan Rhodes, own their own home at Nymboida, located in the mountains approximately 55 kilometres south west of Grafton, New South Wales. The unchallenged evidence is that the property is valued at approximately $85,000 with a mortgage to the National Australia Bank of $22,500. Mr Carruthers' only income is a Disability Pension and related allowances that he receives from Centrelink. He has described the conditions in respect of which that Disability Pension is paid. He has been given medical advice that in the "near future" he will require increased medical attention with mobility aides such as a back brace, walking frame and/or mobility scooter. It is apparent that his health will deteriorate and in due course he will not be able to live in the present home. The plan is to sell the home and to purchase another home closer to Grafton or Coffs Harbour. The cost of the changeover, taking into account the equity in the current home, will be approximately $150,000.

18 Russell James Carruthers, the second defendant, is a massage therapist. He is married with three children aged 22, 18 and 15. Mr Carruthers' wife works with a chemical company in the raw materials ordering department. There is no evidence of the level of her income, however until 9 weeks ago Mr Carruthers' income was approximately $1,400 per week. He is presently unemployed by reason of a decline in demand for his services. The family home in Adamstown Heights is valued at approximately $390,000 with a mortgage of $235,000. There is a personal loan of $14,500 with credit card debts of approximately $5,000. The family motor vehicle is valued at approximately $12,000. Mr Carruthers' unchallenged evidence was that the mortgage repayments, living expenses and expenses for the children's requirements and educational needs exhausted the $1,400 per week. 19 There was a deal of hotly contested evidence in relation to the time the plaintiff claimed she spent with the deceased when she was growing up. Although the relevance of this evidence was marginal, the defendants submitted that they are entitled to test the nature of the plaintiff's evidence generally to support a submission that her claims of dependency are exaggerated and should be rejected. 20 The plaintiff's affidavit evidence included the following: 6 My mum did not work and dad worked at the BHP working various shifts. Dad would drop my mum, my brother and sisters and I off at my Nan and Pop's home at Railway Parade Blackalls Park in the mornings and we would stay all day. If dad had afternoon shift we would stay for dinner at Nan and Pop's home and sleep the night. If dad had dogwatch we would sleep at Nan and Pop's home. This arrangement was like this for about 10 years.

7 Prior to my mum giving birth to my younger sister, Kelly, in 1986, my mum was admitted to hospital with complications. My brother and I, and our younger twin sisters, Emily and Eileen, lived with Nan and Pop at their house for thirty five days.

8 Almost every day my sisters, my brother and myself would be at our Nan and Pop's home and most times sleep over. Sometimes my mother would be there as well but my Pop would drive her home and we would stay with Nan at her house. My Pop died in 1992 and when Pop died I stayed with Nan at her house for about 2 or 3 months to keep her company. During that time Nan provided my food and my place to stay as I was only 12 years of age. She washed all my clothes and packed my lunches for school. I used to catch the bus from the corner of the street where Nan lived to school each day. Throughout High School my sisters and I regularly slept at Nan's home. We always had Christmas, Easter and birthdays at Nan's home. 21 Mr and Mrs Morrison gave evidence that the plaintiff did not stay with the deceased for thirty five days whilst Mrs Morrison was in hospital. Mr Morrison took three weeks long service leave from BHP to care for his children when Mrs Morrison was admitted to hospital some weeks prior to the birth of her youngest daughter Kelly. I am satisfied that during the three weeks of the thirty five days that Mrs Morrison was in hospital, Mr Morrison looked after his children, including the plaintiff, at the family home. I am also satisfied that when Mr Morrison had to return to work, the plaintiff and her siblings stayed with the deceased for the balance of the time Mrs Morrison was in hospital. 22 The defendants submitted that the plaintiff's evidence in relation to the thirty five days was an exaggeration and is indicative of the plaintiff's exaggeration of her claims of partial financial dependence on the deceased. The fact that the plaintiff claimed that she stayed with her grandmother in 1986 for thirty five days when in reality, she only stayed with her for approximately fourteen days is as a matter of fact, an exaggeration, however that exaggeration may have been a mistake rather than an intentional inflation of the time she spent with the deceased in that period. A finding adverse to the plaintiff in respect of the time that she claimed that she spent with the deceased in 1986 does not, on its own, impact adversely on the plaintiff's claim of partial financial dependence. However it will be taken into account when reviewing the plaintiff's claim. 23 The plaintiff's relationship with her children's father is apparently complicated. Her evidence is that he does not live with the family and it is also apparent that he has a drug dependency. The plaintiff has made claims in her affidavit evidence that he is not supportive of the children and is not financially supportive of her, providing only $39 per month for the children. There are also claims of the theft of money. 24 In 2003 the plaintiff moved to Adamstown and was studying for a Diploma of Youth Work/Community Services for three days a week. In late 2004 the plaintiff moved from Adamstown to Fennell Bay which is the next suburb to Blackalls Park. The plaintiff claimed that she moved to Fennell Bay because "no one else would look after Nan". She claimed that she would stay with the deceased at her house about one or two nights during the week and sometimes the weekends. That affidavit evidence included the following (at par 16): I had a bedroom where my children and I slept. I did not keep clothing for my children or myself at Nan's because all of the laundry both for my children, Nan and myself was done at my house at Fennell Bay because Nan's washing machine was an old Hoover Twin Tube and I had an automatic washing machine so it was much easier just to take clean clothing for the children and myself for the time we spent at Nan's and bring all the dirty washing back to my place at Fennell Bay. 25 Although the plaintiff has referred to this period as being in approximately 2004, the use of the expression "my children" supports the conclusion that it was a time after the birth of her second son in July 2007. The same can be said for the following affidavit evidence of the plaintiff: 19 Throughout my life and my relationship with Nan, she always looked after me, as we, my boys and I, often stayed at her place. Nan always helped me with money and food for my two boys and myself. Financially I became reliant on Nan providing food and clothing items for the boys and myself.

20 Nan, Cale, Eli and I would go to the raffles at the club once a week and have dinner at the same time. Nan would always pay. Nan would always buy dinner or if we went to the coffee shop she would buy milkshakes and cake. Every Thursday, without fail, I would go to the bank for Nan. Nan would always give me $50.00 to help me with the boys or my car payments or to help with the rent.

21 Every week I took Nan shopping. We did our shopping together. Nan would always put food in my shopping trolley which she would pay for. She would also give me money towards the food I purchased for myself and the 2 boys at least $50 a time. This $50 was in addition to the $50 that Nan gave me when I went to the bank for her.

22 I was paid a part carers allowance for Nan from 2006 until her death. I worked 2 days per week at the Morisset Youth and Community Centre in addition to caring for Nan until May 2007 when I proceeded on maternity leave for the birth of my son Eli. I was still on maternity leave when Nan died on the 2 nd January 2008.

23 I was at Nan's every day up until she died. The boys always came with me. We stayed at Nan's at least one night per week and some weekends. On the nights that I went home to Fennell Bay I would usually be at Nan's until after dinner, until the boys went to sleep. When they were asleep and Nan was comfortable I would then go to my house. Nan always provided the food when we ate at her home, which was every day. 26 The evidence of the plaintiff's sister Kelly Morrison (Ms Morrison) does not support the plaintiff's evidence of her presence at the deceased's home during that period. Although Ms Morrison's affidavit evidence was that after their mother moved to Stroud in April 2006, the plaintiff became the deceased's carer, and the plaintiff attended to numerous aspects of the deceased's needs, it does not include evidence of the plaintiff's presence at the deceased's home "every day". In cross-examination Ms Morrison was asked about a draft affidavit that had been prepared by the solicitor for the defendants after consulting with Ms Morrison. That draft affidavit included the following: 7 From March 2007 to approximately July 2007 I lived at my Nan's home. I would help my Nan with most of the domestic chores, including washing up, tidying the house, laundry and helping in the yard. At that time Nan had a cleaner who would call weekly to assist with the house.

8 I recall going shopping with Nan and sometimes my mother or one of my sisters would accompany us. We would normally pay for our own food, however, occasionally Nan would buy us a drink, especially when we accompanied Nan to the club after shopping.

9 I do not deny that Cathy assisted my Nan, however, equal assistance was provided to Nan by all the family, and in particular my sisters Emily, Eileen and myself. 27 In cross-examination Ms Morrison was invited to identify any parts of the draft affidavit that were inaccurate. Her evidence was that the words "however, equal assistance was provided to Nan by all the family, and in particular my sisters Emily, Eileen and myself" in paragraph 9 were inaccurate. Ms Morrison was also asked how often the plaintiff stayed with the deceased from 1995 onwards. Her evidence was as follows (tr 25): Q. So from that point on, how often did Cathy stay with your grandmother? A. I am not sure.

Q. You were not sure? A. No. I know Eile only stayed there a fair bit. Q. But was it a lot that she stayed with your grandmother. Did Cathy stay with your grandmother a lot? A. I don't know. Could have been.

Q. Could have been? A. It might have been.

Q. Not sure? A. I'm not sure. … Q. Is it true then to say you actually don't know how often Cathy stayed with your grandmother. A. No.

Q. And when you say you are not sure or you don't remember, are we to take that, that is from when you were 9 in 1986 up until your grandmother died in 2008, that you are just not sure as to how often Cathy stayed with your grandmother? A. I'm not sure.

Q. Not sure? A. Not sure. 28 Ms Morrison's affidavit sworn on 16 October 2009 included the following: 28 … I know that Cathy was Nan's primary carer. We would only help out if we could and mum did do the most for Nan up until she moved to Stroud in April, 2006. Nan was not as well as Russell is saying either physically or mentally. When I was living with Nan she would not eat properly and she was forgetful about taking her medicine. She was also physically weak and would have to hold onto things as she walked around. When she would walk up the hallway to open the door she would have her hand on the wall as she walked along to steady herself.

29 … Cathy and I had a really close relationship with Nan as we were the people who spent the most time with Nan on a regular basis.

30 … Nan and Cathy would go to the raffles at the Workers Club at get dinner. Sometimes I would be there and Darien Cullen would be there too. If we did not have money Nan would pay for our tickets and dinner and a drink. No other family members would ever be with us at these times. 29 Ms Morrison lived with the deceased from March 2007 until January 2008. It is difficult to reconcile the lack of memory that Ms Morrison has of the plaintiff's presence in those months prior to the deceased's death with the plaintiff's claim that she stayed most weekends with the deceased and was present every day before returning home to Fennell Bay with her boys after dinner. It is also difficult to reconcile Ms Morrison's affidavit evidence that the deceased was not eating properly with the plaintiff's claim that she ensured the deceased had dinner and was comfortable prior to returning to her home at Fennell Bay. 30 It is not necessary to detail the evidence of the defendants and their broad brushed denials of the plaintiff's claims of the care that she provided to the deceased. Nor is it necessary to detail the deceased's sister's evidence in this regard. Ms Cullen's evidence was supportive of the plaintiff shopping with the deceased and dining with the deceased. Ms Jack's evidence proved that the plaintiff took the deceased to have her hair done every six weeks. There is no doubt that the plaintiff had a close relationship with the deceased and cared for her. 31 There was evidence that the plaintiff was a recalcitrant in respect of the motor vehicle laws. This evidence emerged from the plaintiff herself in response to a claim by the defendants that the only reason the plaintiff became the "carer" for the deceased was so that she could obtain a drivers licence. The plaintiff admitted that her licence was suspended because she failed to pay fines for "fare evasion". Her evidence was that she was "caught" driving a car whilst her licence was suspended on three occasions and was then disqualified from driving by the Court. The RTA subsequently declared the plaintiff an "habitual offender" and cancelled her licence for a further 15 years. The plaintiff claimed that the Court overturned that declaration. 32 The plaintiff claimed that she had been advised by the Attorney General's Department that she could apply for a licence if she was an officially acknowledged carer. The fact of the matter is that the plaintiff obtained her licence because the deceased agreed for her to claim that she was the deceased's carer. The plaintiff received a licence on this basis in September 2005. It was not until April 2006, when the plaintiff's mother moved to Stroud, that the plaintiff took on a greater caring role for the deceased in driving her to the bank, to the shops and attending dinner with her at the local club. 33 The deceased was very popular with her children and her eleven grandchildren. It is clear from the evidence that the deceased liked attending the raffles at the local clubs. It is also clear that these evenings were attended by not only the plaintiff but also her mother and Mr Bowtell, Ms Morrison and Ms Cullen. I have no doubt that the plaintiff was very kind to the deceased and had deep affection for her. However the sole issue is that of partial financial dependence.

34 The plaintiff's claim that the deceased gave her $100 per week was the subject of challenge by the defendants, however the defendants did not tender any bank or other records showing the deceased's income prior to her death. Although there are claims by the defendants that the deceased was not "well off", there is no evidence of the actual income the deceased was receiving, particularly between April 2006 and her death, the period during which the plaintiff claims partial dependency. 35 Similarly the plaintiff did not provide any evidence of her actual income or expenses during the period April 2006 and January 2008. Mr Hill submitted that I could assume that the plaintiff's financial position as at 22 October 2008, as deposed to in an affidavit of that date, would have been the same during the period April 2006 to January 2008. The evidence that the plaintiff gave in her affidavit of 22 October 2008 on this topic was as follows: 37 I reside at the above address with my 2 boys. I am currently working at the Southlake Youth Centre as a Youth worker. I work 12 hours per week and earn income of about $200 per week after tax. I am receiving social security in the amount of $500 per week which is for myself, the 2 boys and rent assistance. I receive child support from the boys' father of $39.00 per month.

38 I am studying a bachelor of social work at Charles Sturt University, distance education. I could finish this degree in 18 months if I was able to study full time, but I am unable to do that at present due to my financial position. I do not know how long it will take part time, if I am working and also caring for my boys. I do not have anyone to help care for the boys when I am studying.

39 Once I have completed the degree I would like to obtain full time employment in social work, working with neglected and abused children.

40 My expenses are as follows: Rent $235.00 per week Personal Loan Repayment $100.00 per week Food, nappies $200.00 per week Child Care Fees $40.00 per week

Fuel, vehicle expenses $100.00 per week Phone, utilities, internet $80.00 per week Entertainment $20.00 per week Clothing $20.00 per week Traffic fine $10.00 per week

41 I basically live week to week. I rely upon a credit card to purchase basic items for myself and the boys. The credit card has a limit of $2,000 and I owe about $1,000. I am only able to pay the minimum repayment which is $40.00 per month.

42 I need the internet connected as much of my distance education study is online.

43 I would like to be able to afford a deposit on a house for the 2 boys and myself. If I am able to complete my degree in a relatively short time I believe I would be able to find full time employment. My eldest son Cale commences school in 2010. I moved to Fennell Bay so I could help Nan. I would like to move closer to the centre of Newcastle as there are more opportunities for employment. I believe I would need a deposit of about $60,000. 36 Although Mr Hill submitted that I could regard this evidence as applicable to the period April 2006 to January 2008, such submission fails to take into account that the plaintiff's second child was not born until July 2007. Consequently the costs in relation to the care of the children would have been lower for the period April 2006 to July 2007. There would also be a reduction in the costs of education and clothing. 37 The plaintiff was cross-examined in relation to the receipt of the money from the deceased. That cross-examination included the following (tr 14-15): Q. You would go into the bank with your grandmother's passbook or with a plastic savings or credit card, is that … A. A passbook account.

Q. And you go to the teller and how much would you draw down each time, was it a regular amount? A. I wouldn't go to the teller. Inside the branch?

Q. Yes? A. Depends how much my grandmother wanted to withdraw. Q. Did she have a regular withdrawal that she made, was it -- A. It would, I can't remember. Q. So there wasn't a regular withdrawal, let's say $150 a week or a set amount that your grandmother regularly withdrew? A. No.

Q. It varied from time to time? A. Yes.

Q. And when you did withdraw that what occurred in respect to you then handing the money to your grandmother? A. I would just pass her bankbook over to her with her money in it.

Q. And what would your grandmother say to you in respect to that money, would she give you money then and there or would she take it and put it in her purse? A. She would put it in her purse.

Q. So how did it come to be that you came into possession of $50 from your grandmother? A. We would do our grocery shopping together after we would go to the bank which she would give me money while we were in Woolworths.

Q. And this took place over, this was a regular occurrence, was it? A. Yes.

Q. Over what period of time? A. From when I started caring for her to when she passed away. Q. When did you start caring for her? A. In 2006.

Q. What month was that? A. I'm not sure, it was early 2006.

Q. So from early 2006 to early 2008, your grandmother died on 2 January? A. Late 2007.

Q. You are saying for approximately a two year period that this was a regular occurrence? A. Yes, it was, yes. 38 The plaintiff was not cross-examined in relation to the second payment being made in exchange for the mowing of the deceased's lawns. The reference to the "boys" and the "2 boys" in paragraphs 19 to 21 of the plaintiff's affidavit, extracted earlier in this judgment, limited the claim of the two payments of $50 per week to the period after the birth of the plaintiff's second son, Eli, being some time after 13 July 2007 and 2 January 2008. The cross-examination above expanded this period to April 2006 to 2 January 2008. However that evidence is subject to the deficiencies in the plaintiff's evidence in relation to her income and expenses during that period and the inconsistent evidence that she gave in relation to the second payment of $50 referred to below.

39 The plaintiff's original claim in paragraphs 20 and 21 of her affidavit of 22 October 2008 was that $100 was paid to her by the deceased every week; $50 on Thursdays when she took the deceased to the bank; and $50 when she took the deceased shopping. In an affidavit sworn a year later on 21 October 2009, the plaintiff said the following in relation to those payments (at par 13): I took Nan shopping every week for her groceries and she would buy me groceries out of her money and buy my boys clothes at Best and Less and she would give me $50 in cash each week which I relied upon to pay for my groceries. She would also give me money to mow her lawn and give me $50 to do this and she would say, "I know it's a lot but just take it because I know that you need it", which I did and I relied upon it to pay my bills and buy groceries for my children and myself. 40 This affidavit evidence suggests that the second payment of $50 was made in exchange for the plaintiff mowing the lawns. This is a different version of the payments to that given by the plaintiff in her earlier affidavit that $50 was paid when the plaintiff took the deceased to the Bank and that a further $50 was paid when the plaintiff took the deceased to do her weekly shopping. The evidence is further complicated by the plaintiff's affidavit evidence that the deceased had a person named Willy "who would come and mow her lawns with his little daughter named Brooke". The plaintiff went into the detail of claiming that she often sat with Brooke whilst she and Brooke would talk with the deceased whilst her father, Willy, mowed the lawn. The plaintiff's affidavit evidence was that this occurred in 2007 when she was pregnant with her second child and could not do the mowing of the lawns. Her evidence was (at par 36): After I gave birth to Eli I took over the task of mowing the lawn which I continued to do until Nan passed away. Nan would give me $50.00 to mow the lawn as I have said above. 41 It is apparent that the second payment of $50 was dependent upon the plaintiff mowing the lawns. The plaintiff's evidence was that she did not mow the lawns whilst she was pregnant with her second child. That would appear to be between October 2006 and July 2007. There is no evidence about the frequency of the mowing of the lawns and thus the frequency with which that $50 was paid. In any event this evidence is inconsistent with the plaintiff's earlier evidence about the payments in which there was no suggestion that the payment was conditional on the completion of the mowing of the lawns. 42 When the plaintiff swore her first affidavit in October 2008 she was working as a youth worker and receiving $200 per week in addition to the social security payment of $500. In her affidavit sworn on 21 October 2009, the plaintiff claimed that she had become a full-time student at the University of Newcastle in February 2009 and "as a consequence" could not continue working. At that time she claimed her income was $550 per week from Centrelink "as a parenting payment" plus an "education supplement" from Centrelink of $30 per week. In her affidavit sworn 23 April 2010, the plaintiff clarified her earlier evidence in respect of her income from February 2009. The plaintiff claimed that from this date she was in receipt of a "single parenting payment" of $280 per week for herself; a Family Tax Benefit for her two children in the sum of $213 per week; "rent assistance" of $60 per week and "education assistance allowance" of $31 per week. The plaintiff also claimed she received irregular child support payments from the father of the children of $39 per month. Her affidavit of 23 April 2010 included the following (par 9): I later found I was not able to support myself and my family and I was forced to return to working on a part time basis. When I completed the second semester of the academic year at the University of Newcastle I obtained part time employment on the 23 rd November 2009 at Ability Options in Tudor Street, Newcastle West. I was working on a part time basis as a social educator working with young adults with intellectual disabilities. My income varied between $310 and $450 depending upon the number of hours per week made available to me. 43 The plaintiff decided to resign from her employment as a social educator just prior to the trial in March 2010 "due to abusive clients" (tr 18). Her evidence was (tr 18): I was working in the disability sector, that is not my passion, I found out. So I am going back to go to uni next semester. 44 The plaintiff did not give any evidence in her October 2009 affidavit of the income she was receiving as a "social educator" nor did she give any oral evidence of that amount during the trial. The plaintiff's evidence was that as she was no longer employed she intended to enrol for the second semester of the academic year in July 2010 to continue her studies on a full time basis. The plaintiff has adjusted the expenses referred to in paragraph 40 of her affidavit of 22 October 2008 by: increasing the rent by $10; increasing the food expense by $10; adding $10 per week for school uniforms and expenses, $5 per week for sport for Cale; and $10 per week for a credit card repayment, with total expenses of $850 per week.

45 The only income that the plaintiff has disclosed additional to her social security payment in the period April 2006 and January 2008 is the $200 per week for her employment as a youth worker. The plaintiff's income during that period (excluding any money from the deceased) was therefore $700 per week. If I were to take the expenses outlined by the plaintiff in her affidavit of 22 October 2008 at $805 as the cost of living during the period April 2006 to January 2008, then it would be the case that the plaintiff would need a supplement of $105 per week to meet her expenses. However I do not accept that such an amount is an accurate reflection of the plaintiff's cost of living during that period. The figure for "food, nappies" of $200 and "child care fees" of $40 would have to be reduced accordingly by reason of the second child being born in July 2007. The figure for entertainment and clothing would also be reduced. That would reduce the expenses by at least $100 up until at least July 2007. 46 The plaintiff's evidence in relation to her employment was most unsatisfactory. There was no evidence as to whether she could obtain extra hours as a youth worker nor was there any evidence of the level of income she could receive in addition to her social security payments without putting them at risk. There was no evidence at all of any efforts to obtain employment additional to the two days about which she gave evidence. It is clear that the plaintiff was capable of working. It is also clear that the plaintiff was able to obtain low-cost child-care whilst she was working. 47 There was nothing in the admissible evidence to suggest that the only way the plaintiff could meet the cost of living was by the receipt of the moneys from the deceased. Although the plaintiff made broad claims that she relied on the payments from the deceased, there was no supporting material in relation to any of the expenses the plaintiff claimed to have incurred on a weekly basis during the period April 2006 to 2 January 2008. 48 I do not accept that the plaintiff was present at the deceased's house as often as she claimed. I am satisfied that if the plaintiff had been present as often as she claimed, particularly during the period when Ms Morrison was living with the deceased, Ms Morrison would have said so. Ms Morrison's evidence in cross-examination that she was "not sure" about the plaintiff's presence was, in my view, rather devastating to the plaintiff's claims of her constant visitation upon the deceased and the claims of spending weekends with the deceased. That does not mean that I do not accept that the plaintiff cared for the deceased and had a close and loving relationship with her. It means that the plaintiff had time to do other things, including working to make income for her expenses. 49 When I raised with counsel for the plaintiff the lack of evidence in relation to the plaintiff's actual income and expenses during the period in which she claims she was financially dependent on the deceased, he submitted that I could take "judicial notice" of the social security payments that the plaintiff would have been receiving during that period (tr 84). I do not agree with this submission. The plaintiff has apparently been in receipt of various types of social security payments and it was a matter for the plaintiff to prove her actual income and expenses during the relevant period she claimed she had been partly financially dependent upon the deceased. The plaintiff has not established her actual cost of living during the period April 2006 to January 2008. Nor has she proved her actual income during that period excluding the amount received from the deceased. As to her claims of the receipt of moneys from the deceased, notwithstanding the cross-examination in which she claimed that the receipt of $50 was a "regular occurrence" over that period, the plaintiff's inconsistent evidence in respect of the second payment leads me to reject her evidence that she received an additional $50 from the deceased every week. It may be that she received such an amount for the mowing of the lawns from time to time but I do not accept that it was a regular payment. 50 I am of the view that in a claim of partial financial dependence by a healthy adult granddaughter who is able to work, it is necessary to demonstrate that there are no sources of finance or income, other than from the deceased, to establish such dependence. It seems to me that the plaintiff chose not to work for more than two days per week. There was no evidence of an inability to obtain employment for more than two days per week. I am not satisfied that the plaintiff's care of the deceased took such time that prevented her from working, for instance, an additional one or even two days per week. 51 Even assuming that the plaintiff was not able to work for the period June to October 2007 by reason of her late stage of pregnancy, birth of her second son and post natal care, I do not accept that the expenses were such that the plaintiff was partly financially dependent upon the deceased. Even if that is wrong and the plaintiff was dependent upon the receipt of $50 during the period June to October 2007, I am not satisfied that such a short period would satisfy the eligibility in this instance. As Palmer J said in Re Estate of Hakim; Simons v Permanent Trustee Co Ltd the financial assistance must occur over a significant period of time. I am not satisfied that the period in this case was in all the circumstances a significant period. 52 I am not satisfied on the balance of probabilities that the plaintiff was partly financially dependent on the deceased. Accordingly the plaintiff is not an eligible person to bring this application. Even if the plaintiff were eligible, the competing claims of the beneficiaries are such that I would not exercise my discretion in the plaintiff's favour. Additionally the plaintiff is well able to work and there is no evidence to establish a lack of employment opportunities. Although the plaintiff claimed to have given up her employment because of abusive clients, I am satisfied that the real reason she has chosen not to work is so she can complete her degree in a shorter period of time. As an able bodied young woman with the capacity to work, I am not satisfied that the plaintiff has established a relevant need. 53 The Summons will be dismissed. If the parties are unable to agree on a costs order, I will hear argument on a future date to be fixed by arrangement with my Associate. Such arrangement should be made by the parties contacting my Associate by no later than 2 June 2010. **********

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At a glance

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Before

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Judgment (47 paragraphs)

Parties

Cases Cited (6)