24 As soon emerged in cross examination, this picture of a close, harmonious and loving relationship painted by the Plaintiff was totally false. In truth, there had been a history of violence and drunkenness in the relationship, almost from its commencement when, in September 1986, the Plaintiff, who is tall and solidly built, hit the Deceased in the face during a violent argument. Thereafter, the Plaintiff, on frequent occasions throughout the whole of his relationship with the Deceased, severely beat her, causing her injury, abused her and humiliated her in private and in public and intimidated both her and her daughter, the Defendant, while the Defendant was living with them.
25 The evidence of the Defendant and the Deceased's former husband attest to the physical injuries caused to the Deceased by the beatings given her by the Plaintiff. The evidence of the Defendant and the Deceased's sisters, as well as that of the Deceased's former husband, attests to the Plaintiff's abuse and humiliation of the Deceased in public. I accept that evidence in its entirety. It is corroborated by what is, in effect, a written confession by the Plaintiff himself in a letter which he wrote to the Deceased in about November 1994, when she had finally compelled him to move out of her house. The letter was written in an unsuccessful attempt by the Plaintiff to persuade the Deceased to take him back.
26 The relevant part of that letter reads:
"I've been praying to [the Deceased's parents] to forgive me for:- the constant physical and mental torment I've inflicted on you and Mary. For hitting you, for kicking you, for spitting in your gorgeous face, for throwing the ashtray that damaged your leg, for breaking your teeth, for breaking your furniture, for ridiculing you in private and in public, for beating you in private and in public, for cursing you, for frightening you and Mary, for intimidating you and Mary, for being abominably rude to your family and friends, for all my filthy name calling of your family and friends, for my abuse of your love, for my arrogant disdain of your unique intelligence, for mimicking certain aspects of your grammar and speech, for my total disdain of your faithfulness, for taking you and your sweet love for granted, for ignoring you, for freezing you out of my life and for treating you like shit."
27 When confronted with all of this evidence in cross examination, the Plaintiff was compelled to admit that he had done all the things to the Deceased of which he had accused himself in his written confession. By this admission, he showed that the evidence as to the relationship which he had given in his first affidavit to this Court, and even in the first part of his cross examination, was false and must have been deliberately false. That false evidence was given by the Plaintiff for financial gain out of the Deceased's estate.
28 I conclude that I cannot accept the Plaintiff's evidence on any matter in dispute unless his evidence is satisfactorily corroborated or is inherently probable.
29 What emerges from the evidence of the relationship between the Plaintiff and the Deceased is that from the beginning the Plaintiff, who had no assets of his own and a very irregular income, made no contribution to the property acquired by the Deceased. He made only intermittent and relatively unsubstantial contributions to their joint daily living expenses until he ceased doing so entirely in about 1990. In effect, the Plaintiff was supported, and supported comfortably, by the Deceased.
30 It is clear that by November 1994 the Deceased could no longer tolerate the Plaintiff's violent and abusive conduct towards her. In effect, she threw him out. However, it is also clear that for some considerable time afterwards he was in the habit of harassing her by continuing to come to her house, banging on the door and shouting abuse at her in public places.
31 The Plaintiff did not attempt to find work after he was ejected by the Defendant. He says he was depressed and his arthritis prevented him from working as a drummer. It is true that he has been on medication for depression and for arthritis since about December 1994. However, he was never hospitalised for depression and his arthritis, apparently, does not prevent him from practising his drumming for up to four hours a day. -I am not satisfied that the Plaintiff has been completely incapable of earning any income from any source since he was ejected by the Plaintiff almost ten years ago.
32 The Plaintiff's eyesight is not good and he requires considerable dental work but, otherwise, he appears to be well nourished, solidly built and generally healthy, although I do note that he now suffers from a heart condition.
33 I accept that the Plaintiff, who is now 63, has little prospects of finding remunerative work in the future. His assets are worth about $20,000. His sole income is a disability pension of $272 per week. He has accumulated debts of some $16,000. His living expenses are about $250 a week and he will have continuing medical expenses. He has cataracts in both eyes and surgery is required to remove those cataracts. That surgery will cost about $3,300. A dental reconstruction, which is required, would cost about $40,000.
34 Mr Ellison concedes that the Plaintiff, as a former husband of the Deceased, is an "eligible person", as defined in the Act. Mr Ellison does not dispute that the circumstances of the Plaintiff are such that, but for the question of his conduct towards the Deceased, consideration would have to be given to some provision for him out of the Deceased's estate.
35 However, Mr Ellison says that having regard to the conduct of the Plaintiff towards the Deceased, both during and after their marriage, the Court should determine that the Plaintiff's application is not warranted, so that the application should be dismissed in accordance with s.9(1) of the Act.
36 Mr Armfield says that the conduct of the Plaintiff towards the Deceased is but one of the circumstances which the Court takes into account in deciding whether the application is warranted. Mr Armfield points to the following factors.
37 First, the Plaintiff was undeniably married to the Deceased and they co-habited for a little more than eight years. Second, the Plaintiff contributed to household expenses although, as I have said, I find that the amounts were irregular and unsubstantial and ceased from about 1990. Third, the Deceased cared for the Plaintiff when he developed arthritis and, by her conduct, recognised that she had an obligation to him.
38 Fourth, the Plaintiff did not seek a property settlement on his divorce, although I should point out here that the evidence is that the Deceased gave the Plaintiff a sum of money after they separated in order to stop his further demands. The amount is disputed. The Plaintiff says it was $1,000; the Defendant says it was between $10,000 and $15,000. I am not able to accept the Plaintiff's evidence with any degree of satisfaction, but I am not able to find that the money was as much as $10,000 to $15,000.
39 Fifth, the Plaintiff has no secure accommodation and, having regard to his age and physical disabilities, he will continue to remain dependant on his pension. His financial position, in itself, says Mr Armfield, can amount to a factor warranting the making of an application for the purposes of s.9(1) of the Act.
40 Sixth, the violence exercised by the Plaintiff towards the Deceased must be understood in the light of what was a violent marital relationship. Mr Armfield says that there is evidence suggesting that the Deceased herself was given to violent behaviour, such as shouting, spitting and scratching, and that she was also given to drug and alcohol abuse. As to this last submission, I am not satisfied that the Defendant was regularly abusing drugs throughout the marital relationship, although I find that she was sometimes drunk and abusive. Whether this conduct was a response to the Plaintiff's behaviour or, as the Plaintiff suggests, provoked the Plaintiff's behaviour, is impossible for me to find on the evidence.
41 Nevertheless, the important consideration is that, however difficult or offensive the Deceased's behaviour might have been at times, there could have been no possible justification for the Plaintiff to respond with violent physical abuse. Domestic violence is not a response that our society condones in any circumstances and it must be quite clear that this Court cannot condone it either.
42 I accept that the overall consideration in applications under the Act is whether, in all the circumstances of the case, the applicant has demonstrated that he or she is a person who would generally be regarded as a natural object of testamentary recognition by the Deceased: see Re Fulop (1987) 8 NSWLR 679; Churton v Christian (1988) 13 NSWLR 241, at 252. I accept also that in determining that question the Court pays regard to what it conceives to be current attitudes and expectations in the community: see Walker v Walker (unrep.) 17 May 1996 per Young J.
43 In the present case, I take into account the following considerations. Throughout the whole of their cohabitation, the Plaintiff was violently abusive of the Deceased, physically and emotionally. The Plaintiff deliberately lied to the Court about the quality of the marital relationship. After cohabitation ceased, the Plaintiff harassed the Deceased and abused her in public. The Plaintiff made no contribution at all to the assets of the Deceased and very little contribution to their daily living expenses during cohabitation. I am not satisfied that the Plaintiff's present lack of assets and means generally is the result of inability to work in the ten years since cohabitation ceased, rather than the result of a disinclination to work.
44 In these circumstances, I am of the view that the Plaintiff's conduct during and after the relationship with the Deceased would generally be regarded, according to current attitudes and expectations in the community, as disqualifying him as a natural object of testamentary recognition by the Deceased. Accordingly, in my opinion, there are no factors which warrant the making of this application for provision out of the Deceased's estate. In accordance with s.9(1) of the Act, therefore, I cannot proceed further to determine the application and it must be dismissed.
45 There was an issue raised during the proceedings as to whether a unit owned in the name of the Defendant in King Street, Newtown was, or was not, part of the estate of the Deceased, in that it was said by the Plaintiff that the unit was held by the Defendant on trust for the Deceased. Because of my conclusion that this application must be dismissed, I do not need to determine that question.
46 In any event, as I think both Mr Armfield and Mr Ellison recognised, the determination of that question would not have mattered very much in quantifying what, if any, provision should have been made out of the Deceased's estate for the Plaintiff, if he had been entitled to any.
47 If the unit was held by the Defendant on trust for the Deceased, so that it formed part of her estate, nevertheless, the Plaintiff did not seek a legacy in excess of $130,000, which is less than the present cash surplus of $148,000 presently left in the estate. That would have left the unit to have been disposed of out of the estate to the Defendant in any event.
48 The result, therefore, is that the Plaintiff's Summons is dismissed.
49 The Plaintiff will pay the Defendant's costs of the Summons.
50 Exhibits may be returned.
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