(i) the reputation and public aspects of the relationship.
20 It is interesting the observe that the foregoing nine matters, which were part of the new section 4 inserted in the Act by the amending legislation of 1999, reflect (albeit not in precisely identical words) the ten factors referred to by Powell J (as he then was) in Roy v Sturgeon (1986) 11 NSWLR 454 at 459.
21 Subsection (3) of section 4 provides,
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.
22 The Plaintiff, who was born on 12 July 1949 (and is presently aged fifty-three) met the Deceased in mid-1995. At that time the Plaintiff was residing in Housing Commission accommodation at 13 Cobby Street, Shortland (where she had been living for the preceding three years; before that she had also been residing in Housing Commission accommodation). The Deceased at that time was living in rented accommodation in a flat at 1/29 Nelson Street, Newcastle.
23 Within three weeks of their meeting, the Deceased, whilst retaining tenancy of his flat at Nelson Street, in effect moved into residence with the Plaintiff in her house at 13 Cobby Street, in August 1995. Most of his clothes were moved into that house. It was the practice of the Deceased to spend every night of the week at the Plaintiff's residence. They shared a bedroom and a bed, and participated in a sexual relationship. On 18 August 1997 the Plaintiff and the Deceased became engaged to be married. They appointed 7 August 1999 for their wedding, at the New Lambton Baptist Church in Newcastle, and afterwards at 95 McNaughton Avenue, Marylands, and sent out printed invitations for that occasion. They received pre-marital counselling from the Reverend Dennis Alfred Carter, the Minister of the Baptist Church at New Lambton, where both the Plaintiff and the Deceased were attenders on a regular basis.
24 However, after sending out invitations to their wedding the Plaintiff and the Deceased decided that the costs associated with a wedding of the size and nature which they desired were beyond their means at that time; therefore they decided to postpone the wedding. The Deceased died suddenly four months after the date originally appointed for the wedding, and before any fresh arrangements had been made for their nuptials. The death of the Deceased occurred at the residence of the Plaintiff.
25 Evidence was given by various kinsfolk and other persons acquainted with the Deceased, with a view to attempting to establish that the Plaintiff was not the de facto spouse of the Deceased. The furthest that any of that evidence went was that the Deceased did not reveal to all his friends and relatives that he was living in a de facto relationship with the Plaintiff.
26 There was evidence that the Deceased stated to various acquaintances that he was retaining tenancy of his Nelson Street flat because he did not wish his status as de facto partner of the Deceased to be publicly revealed, since it would affect the Social Security benefits which the Plaintiff was receiving. However, the Deceased had the gas and telephone services disconnected from the Nelson Street premises. The Plaintiff admitted under cross-examination that she was aware that she had an obligation to inform Centrelink whether or not she was in a de facto relationship and that she did not so inform Centrelink because she did not want to jeopardise the continuation of her pension. Similarly, she was aware of an obligation to inform the Housing Commission whether there was anyone else living with her in her Housing Commission accommodation and she did not do so.
27 The foregoing conduct on the part of the Plaintiff reflects no credit upon her. Nevertheless, it is not determinative of whether or not she and the Deceased were living in a de facto relationship.
28 Of the matters set forth in section 4(2) of the Property (Relationships) Act, I have already referred to the short duration of the relationship. However, throughout the period of the relationship the parties shared a common residence. A sexual relationship existed between them. There was a degree of financial dependence between the parties. There was mutual commitment to a shared life, manifested by their engagement to be married and the arrangements made for the wedding. Similarly there was a sharing of household duties, such as shopping, although the major part of the domestic activities, such as preparation of meals, washing and ironing, was performed by the Plaintiff. Despite the apparent lack of awareness on the part of the kinsfolk of the Deceased, there was a degree of reputation and public aspects in respect to the relationship, and the Plaintiff and the Deceased were to an extent regarded as a couple, especially in the context of social functions associated with the Deceased's employment as a pool attendant, and functions relating to his twenty-five years' service for the Newcastle City Council. The Plaintiff and the Deceased went on several holidays together, and they played bingo together three times a week, as well as attending church services together every Sunday.
29 The Plaintiff and the Deceased maintained separate bank accounts during the period of their relationship, in order (according to the Plaintiff) to avoid any effect upon her disability pension. They shared equally the weekly grocery bills and the telephone bill. The Plaintiff paid for the electricity, whilst the Deceased paid for the gas. The Deceased paid for all their social activities and holidays.
30 The evidence of the Plaintiff herself, of her son, and of the Reverend Mr Carter are more than sufficient to satisfy me that the Plaintiff and the Deceased were living in a de facto relationship from mid-1995 until the death of the Deceased in December 1999. But, in any event, there was placed in evidence the death certificate of the Deceased (Exhibit C). The informant in respect to the registration of the death of the Deceased was the Defendant herself, Janette Brennan. The information disclosed in that death certificate includes the fact that at the time of his death the Deceased was in a de facto relationship with Anne Nelson, and that he was aged fifty-three at the commencement of that relationship.
31 I regard the information contained in the death certificate firstly as being virtually conclusive of the status of the Deceased at the time of his death, and, further, as constituting an admission by the Defendant herself in that regard.
32 It follows, therefore, that the Plaintiff is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standing to bring the present proceedings.
33 The Plaintiff had previously been married and was divorced in about 1975. She has three adult children. The Deceased, although he acknowledged Kristy Lee Meaker as his daughter, had never been married. No children were born to the relationship of the Plaintiff and the Deceased.
34 The Plaintiff suffers a degree of intellectual retardation, although she is not a disable person. The Plaintiff is in receipt of a disability pension, in an amount of $213.80 a week. She estimates that her weekly expenses total $205, the most significant of those expenses being rent ($45) and food and household supplies ($70). The Plaintiff's assets are meagre. They consist only of household contents and personal effects (to which she ascribes a value of $2,500) and moneys in her bank account, which in her affidavit evidence were stated to be not more than $400, although her bank statements reveal, at times, higher amounts. Those assets are hardly any different from the Plaintiff's assets at the time when she first met the Deceased in mid-1995. At that time the Deceased's assets appear to have consisted only of a motor vehicle, to which a value of $3,000 is ascribed by the Plaintiff.
35 The Plaintiff suffered from encephalitis as a child. That condition affected the left side of her body, and her left foot was further injured in an accident when she was aged fifteen. She suffers problems with her right hip and left knee, and has difficulty in negotiating the steps in the front and rear of her house. On account of the Plaintiff's mental and physical disabilities, it is unrealistic to suggest that she would ever be able to engage in remunerative employment.
36 Essentially, the Plaintiff submitted that her need was for alternative accommodation. She placed in evidence extracts from the real estate section of the Newcastle Herald, setting forth details of accommodation which she said would suit her needs and was located in areas of her preference. Those houses had prices ranging between $135,000 and $180,000.
37 In performing the first stage in the two stage exercise identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-210, it is necessary to establish first whether, in all the circumstances, the provision (if any) made for the Plaintiff was inadequate for the proper level of maintenance for the Plaintiff, having regard, amongst other matters, to the Plaintiff's financial position, the size and nature of the estate, and the totality of the relationship between the Deceased and other persons having a legitimate claim upon his bounty.
38 In the instant case, it must be recognised that the de facto relationship between the Plaintiff and the Deceased was of short duration, being only four and a half years. Nevertheless, the evidence discloses that it was a close and loving relationship. There was a considerable degree of commitment between the Plaintiff and the Deceased, manifested by the fact that they became engaged, intended to marry, went so far as to make arrangements for the wedding and for the wedding reception, and took instruction from the Minister of religion who was to perform the marriage ceremony.
39 The Plaintiff leads a modest lifestyle. Her assets are meagre in the extreme. She has no reserves to fall back upon.
40 She has been, as a result of the terms of the will of the Deceased, left without adequate provision for her proper maintenance.
41 It is the desire of the Plaintiff to acquire accommodation of her own. Nevertheless, it will be appreciated that the Plaintiff is secure in her present accommodation, where she has been living for the past ten years, and that she previously also resided in Housing Commission accommodation. The Deceased also was living in rented accommodation at the time of his death. There was no evidence to suggest that upon their marriage the Plaintiff and the Deceased proposed to purchase a residence. Indeed, the financial resources of both the Plaintiff and the Deceased during the lifetime of the Deceased were such that it would not have been possible for them to do so, at least until the deceased retired from employment. It is only in consequence of the superannuation of the Deceased which has come into his estate upon his death and the various amounts payable by his employer at his death that the assets of the estate are considerably more than would probably have been the assets of the Deceased until he retired from employment. There was no evidence as to when he proposed to retire. But it will be appreciated that he was aged only fifty-seven at the time of his death, and there was no suggestion that he did not propose to continue in his employment as a pool attendence at the Wallsend Swimming Pool.
42 In addition to accommodation, the Plaintiff seeks to receive from the estate provision which will enable her to acquire a new motor car (for example a Toyota Corolla, to which she ascribes a price of $20,000), new bedroom furniture and dining room furniture ($2,000), new washing machine and microwave oven ($1,000), sewing table for sewing machine given to the Plaintiff by the Deceased ($500).
43 The claim of the Plaintiff must be viewed in the light of competing claims upon the testamentary bounty of the Deceased.
44 The competing claim of the Plaintiff's daughter Kristy has been recognised by the consent orders which have been made in her favour, giving to her a legacy in the sum of $130,000. In this regard it must not be overlooked that Kristy was one of the chosen objects of the testamentary beneficence of the Deceased. The Deceased publicly acknowledged that Kristy was his child, describing her as such in his will (although he privately expressed some doubt in this regard). He paid child maintenance for her until she attained the age of eighteen. The Defendant, by those consent orders, has acknowledged that the benefit given to Kristy by the will (be it one fourth of the residue or one eighth of the residue) is such that as a result of that testamentary provision Kristy has been left without adequate provision for her proper maintenance.
45 The evidence in proceedings 5225 of 2001, in which Kristy is the Plaintiff, is sufficient to support an order for provision in favour of Kristy in the sum of $130,000, although it must be recognised that, had that claim by Kristy proceeded to a contested hearing, that claim must have been approached in the light of the competing claim of the present Plaintiff, the de facto widow of the Deceased. It must also be appreciated that that evidence has not been in any way tested in the form of a hearing of Kristy's claim. I express no view as to whether, if the claim of Kristy had proceeded to a contested hearing, she would have been awarded an amount of $130,000, or some lesser or greater amount. The essential significance to the claim of the present Plaintiff of the proposed legacy in favour of Kristy is the question of whether the residue available for distribution is sufficient to accommodate that proposed legacy in favour of Kristy as well as an order for provision in favour of the present Plaintiff.
46 Evidence has been placed before the Court by the children of the Deceased's sister Janette Brennan and the children of the Deceased's sister Kay Turner (all of whom are beneficiaries under the will). That evidence discloses that the Deceased had a good and reasonably close relationship with his various nephews and nieces. However, I do not consider that those persons, although among the chosen objects of the testamentary beneficence of the Deceased, had any claim against the estate which would have the effect of reducing, let alone extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise establish.
47 There remains to be considered the benefit given by the Deceased to Brian Joseph Ahkin. He is the son of a lady with whom the Deceased was in a relationship for a number of years. It clearly emerges that there was a very close and affectionate relationship between the Deceased and Brian Ahkin, who is now aged nineteen. That relationship was in the nature of a father-son relationship, and continued after the Deceased and Brian's mother ceased to be in a relationship, and to the time of the death of the Deceased a few weeks before Brian's eighteenth birthday.
48 I have already observed that the precise effect of clause 3(c) of the will is somewhat unclear. That is, the entitlement of Brian thereunder could be regarded as either to one fourth of residue or to one eighth of residue (each of Janette Brennan and Kay Turner having three children).
49 If the amount of the distributable estate be treated as $290,000 (being $347,400, less $57,000, representing costs), and if, for the purposes of this exercise, there be deducted from that amount of $290,000 the full amount of the proposed legacy of $130,000 for the Deceased's daughter, there would remain only $160,000 in residue. (It is likely that the amount will be somewhat less than $160,000, if the costs of the Defendant executor in proceedings 5225 of 2001 also be paid out the estate; the amount of those costs does not appear from the evidence.) Since any benefit given to the Deceased's daughter as a result of the proposed settlement of her proceedings by way of the aforesaid legacy is in lieu of the benefit given to her under the will of the Deceased, then the consequence would be that the residue would be divided only amongst the persons in the first three categories set forth in clause 3(c) of the will. That would mean that Brian Ahkin would be entitled either to one third of the remaining $160,000, thus receiving about $53,000, or to one seventh of that amount, thus receiving about $23,000.
50 Beyond the fact that in his affidavit of 27 September 2001 Brian (who was born on 24 February 1983, and is now aged nineteen) is described as a student, the Court has no information concerning the present financial and material circumstances of Brian.
51 Indeed, the Court has no information concerning the financial and material circumstances of any of the beneficiaries named in the will of the Deceased, other than those of the Deceased's daughter Kristy.
52 I am not satisfied that the Plaintiff has established an entitlement to receive from the estate of the Deceased an amount sufficient to purchase a house. In this regard, I have already observed that the relationship between the Plaintiff and the Deceased was of short duration. More importantly, in my view, is the fact that the Plaintiff has always resided in rented accommodation, and that she is secure in her present accommodation. Apart from the condition of that accommodation (which, according to the Plaintiff, is in need of some enhancement), there appears to be no problem about the Plaintiff continuing to reside in the Cobby Street house.
53 The competing claims upon the testamentary beneficence of the Deceased (in particular, the competing claim of the Deceased's daughter Kristy, which has been recognised by the Defendant as justifying provision in the amount of $130,000) are not such as would, in my conclusion, have the effect of reducing, let alone extinguishing, the order for provision an entitlement to which I am satisfied that the Plaintiff has otherwise established.
54 I consider that the Plaintiff has established an entitlement to receive from the estate an amount sufficient to enable her to enhance her present very modest lifestyle, and to enable her to acquire the motor car and additional furniture and furnishings to which she refers in her affidavit evidence, as well as to provide her with a fund to meet unexpected contingencies and to enable her, by investment, to increase her present very small income. In all the circumstances, therefore, it seems to me appropriate that the Plaintiff should receive from the estate of the Deceased a legacy in the sum of $100,000.
55 I would here observe that if the Plaintiff receives a legacy in that amount, and if the proposed legacy of $130,000 to Kristy Meaker remains undisturbed, there would remain about $60,000 (perhaps somewhat less) as residue in the estate, to be divided among the other beneficiaries named in clause 3(c) of the will. Of that amount Brian Ahkin would be entitled to receive either one third (being about $20,000) or one seventh (being about $8,600). Similarly, each of the nieces and nephews of the Deceased would retain some benefit under the terms of the will.
56 Accordingly, I make the following orders: