RICHARDSON v KIDD

Supreme Court of NSW|2002-04-17|Before: Miss J

CITATION : RICHARDSON v KIDD [2002] NSWSC 306 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2847 of 2001 HEARING DATE(S) : 21/03/02, 22/03/02 JUDGMENT DATE : 17 April 2002

PARTIES : WENDY RICHARDSON v FRANCES JOY KIDD (Estate of Eric Alfred Dudeney) JUDGMENT OF : Master Macready at 1

COUNSEL : Miss J. Pentelow for plaintiff Mr C. Harris for defendant SOLICITORS : Marsdens for plaintiff Maclarens for defendant CATCHWORDS : Family Provision. Application for declaration that plaintiff was living with the deceased as his de facto partner at the date of death. Declaration refused. Application under Family Provision Act. - Held no domestic relationship as parties not living together but plaintiff was an eligible person as part of household and partly dependent. Order for legacy in favour of plaintiff. DECISION : Paragraph 73

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

No 2847/ 2001 WENDY RICHARDSON v FRANCES JOY KIDD

ESTATE OF ERIC DUDENEY JUDGMENT 1 MASTER: This is an application brought by the plaintiff in which she seeks, first, a declaration that the defendant holds the estate of the late Eric Alfred Dudeney upon trust for the plaintiff absolutely. In the alternative she seeks orders pursuant to section 7 of the Family Provision Act 1982 out of the estate of the late Eric Alfred Dudeney. A Judge of the Court has referred the trial of the matter to a Master. 2 The deceased died on 28 August 2000 aged 46 years. He had never married and had no children. His closest relative was the defendant, his sister. He was also survived by the plaintiff who submits that she lived with him at the date of his death as his de facto partner. 3 As there is an intestacy, absent the claim of the plaintiff, the whole of his estate would normally pass to his sister, the defendant. At the date of his death the deceased owned a home unit at Queensborough Road, Croydon Park which had an estimated value of $130,000. The unit has been sold and the proceeds resulting from the sale, after allowance of expenses, amount to $116,758.44. The deceased also held superannuation interest in respect of his employment with Telstra. The Trustee has determined that the total benefit, namely, $94,600 shall be paid as to 80% to the estate and 20% to the plaintiff. Accordingly, the estate will receive $75,680. There are a number of other minor assets and some small liabilities for costs and other matters. 4 There is some doubt as to whether or not income tax will be payable on the superannuation payout to the estate. In the event that tax is not payable the estate will comprise $181,993.85. In the event that income tax will be payable the estate will comprise $170,641.85. Both parties have incurred costs in the matter. The plaintiff's costs are estimated at $37,920 and those of the defendant are estimated at $24,223. This is a total of $62,143. I am thus dealing with a case in which the estate available for distribution, in the event that the plaintiff succeeds, is likely to be either $107,498 or $119,850. 5 The plaintiff's principal claim is for a declaration that she is entitled to the whole of the deceased estate pursuant to section 61B(2) of the Wills Probate and Administration Act. Under that section the plaintiff says that she was the wife of the deceased by virtue of the fact that she was living with the deceased in a de facto relationship at the date of his death. In the event that the court does not find in favour of her claim in this respect the plaintiff makes an alternative claim under the Family Provision Act 1982. The relevant claim is that she was living with the deceased at the date of his death in a domestic relationship which was a close personal relationship rather than a de facto relationship. In the event that this claim is not successful the plaintiff makes a claim that she is an eligible person under section 6 (1) (d) of the Family Provision Act 1982 in that she was at one time part of the household of the deceased and at one time partly dependent upon the deceased. 6 In her evidence in this case the plaintiff initially suggested that she lived with the deceased at his unit at Croydon Park from April 1998 until September of that year. In her later affidavit evidence she suggested that she lived with him from April 1998 until January 1999. The plaintiff had first met the deceased some time in 1996 although she initially wrongly suggested that she first met him in 1995. She was then living in a Housing Commission property which she rented at Minto. The plaintiff maintained this property throughout the time that she knew the deceased. After she ceased living at the deceased's unit at Croydon Park on a full-time basis she returned to her Minto house. She says that she continued her relationship with the deceased and that on weekends or at times when the deceased was sick or on holidays they would reside together at his unit at Croydon Park. 7 In respect of the first claim by the plaintiff the defendant raises as a defence an issue estoppel which is said to arise because of proceedings which occurred in the Probate Division of this court before His Honour Justice Young, Chief Judge in Equity. Because this may be a bar to the plaintiff's principal claim it is convenient that I deal with this issue before the other matters. 8 The plaintiff lodged a caveat against a Grant of Administration in the deceased's estate based upon her interest which she claimed was that she was the deceased's de facto spouse and as such was entitled to his estate on intestacy. The defendant lodged a summons seeking administration of the estate of the deceased and also filed a notice of motion on 27 February 2001 seeking that the caveat filed by the plaintiff cease to be in force. On 2 April 2001 Mr Justice Young directed the caveator to file all evidence on which she based her a claim no later than 10 April 2001 and stood the notice of motion into the Duty Judge's list noting the issue to be tried was whether there is a prime facie case that the caveator was, at the date of death, the de facto wife of the deceased. 9 The matter came on for hearing on 24 April 2001 and the present plaintiff's then available evidence was read on the hearing of the motion. No defendant's evidence was read and there was no cross-examination. His Honour, Mr Justice Young, heard the matter on that day and gave judgment. At page 15 he concluded his judgment with the following remarks. "Therefore I do not consider that there is sufficient material here to let the case go further for trial and so I decided that there is not, on a prime facie level, sufficient evidence of a de facto relationship to allow the matter to proceed further. That is the question that I was asked to decide, and I decide the same by order under part 31 of the Supreme Court Rules 1970. " 10 Part 78 rule 69 of the Supreme Court Rules deals with orders that a caveat ceases to be in force. Of importance is rule 69 (4). That provides: -- "Where in respect of the caveat, or any of the caveats, the court considers that the evidence does not show -- (a) that the caveator has an interest in the estate or has a reasonable prospect of his establishing such an interest; and (b) some matter occasioning some doubt as to whether the grant ought to be made, the court may order that that caveat ceased to be in force in respect of the intended application." 11 It would seem that His Honour was either exercising the jurisdiction under rule 69 (4) (a) or determining the same matter as a separate issue under Part 31. His Honour concluded in paragraph 16 by saying:- "The effect will be that no further caveat should be lodged to protect the defendant's interest and that unless the registrar considers that some other course should be taken, administration can be granted in due course." 12 The defendant's defence was based upon issue estoppel. They relied upon the standard formulation of that defence which is set out in Blair v Curran 62 CLR 464 at page 531-533. There Dixon J said: -- "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v Inhabitants of the Township of Hartington Middle Quarter (1855) 4 E. & B. 780, at p.794, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.

The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order." 13 It is necessary to determine what is the issue of fact or law with which I am concerned in this matter. The ultimate issue on the hearing of the case before His Honour was whether or not there was a prime face case that the caveator was the deceased's de facto spouse at the date of death. Given His Honour's reference to part 31 it is unlikely that he was deciding that she had a reasonable prospect of establishing her claimed interest. 14 The issue of fact determined by His Honour may well have been whether there was a de facto relationship at the date of death disclosed by the evidence read on the application. In that sense His Honour no doubt decided that in respect of that evidence no such relationship was shown. The effect of his order was to prevent a trial of that issue in the probate proceedings. 15 The issue before me is whether, on the evidence before me, there was a de facto relationship at the date of death. This seems to be a different issue from that debated before His Honour which was whether there was then a prima facie case. 16 Even if I am wrong on this aspect there is another reason why the issue estoppel should not apply. A special exception applies to issue estoppel and was referred to by Lord Keith in Arnold v National Westminister Bank PLC (1991) 2 AC 93 at 109: "In my opinion your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result, as was observed by Lord Upjohn in the passage which I have quoted above from his speech in the Carl Zeiss case [1967] 1 AC 853 at 947. 17 In the hearing before me Anita Puntillo gave important affidavit and oral evidence. She swore to the fact that at the time the application was before Mr Justice Young she was asked to swear an affidavit but refused to do so on the advice of her then solicitors. Given Mr Justice Young's directions about filing affidavit evidence it seems that this evidence could not by reasonable diligence have been brought forward for that hearing. In these circumstances I would not allow the issue estoppel to be raised. 18 Having decided that there is no issue estoppel which prevents the plaintiff raising it, I turn to the question whether the plaintiff was living with the deceased in a de facto relationship at the date of his death. The Wills Probate Administration Act incorporates definitions from the Property (Relationships) Act 1984. Section 4 of that Act relevantly defines de facto relationship in the following terms. "De facto relationships (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."

19 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. See Light v Anderson (1992) DFC 95120 applying Simonis v Perpetual Trustee Co Ltd (1990) 21 NSWLR 677.

20 I turn to the question of the duration of the relationship. In doing so it is necessary to have regard to the quality of the plaintiff's evidence. The plaintiff was in error on two occasions in respect of her initial evidence. The first was the date at which she first met the deceased and she corrected this once the defendants had produced evidence which showed that what she had earlier said was wrong. The second matter is that she changed the period during which she lived with the deceased on a full-time basis in the course of her affidavit evidence. In the witness box the plaintiff frankly conceded that she was not good on dates. It seems to me that the plaintiff is not a reliable witness and accordingly it is important to see whether or not there is corroborating evidence in respect of some of the matters which are in dispute. 21 There is no serious debate in the proceedings before me that they had a relationship and it may be described as one which commenced in early 1996 and continued until the death of the deceased. There is an issue as to the nature and extent of the common residence. The evidence clearly establishes that the common residence occurred in April 1998 when the plaintiff moved in to live with the deceased at his flat in Croydon Park. Evidence was given by Anita Puntillo, a former partner of the deceased. It appeared that her relationship with the deceased finished in January 1997. Notwithstanding that she ceased her relationship she apparently remained a friend of the deceased and became a friend of the plaintiff. The deceased in fact introduced the plaintiff to Anita Puntillo. Anita Puntillo would have dinner with the plaintiff and the deceased on average at least once a month. She was in a position to observe them at the deceased's home when they were living together at Croydon Park. She is clear in her evidence that the plaintiff was living there on a full-time basis until January 1999. She also gives evidence that in January she drove the plaintiff and her belongings back to the plaintiff's home at Minto which had been damaged by her daughter's partner. 22 Another matter also corroborated the plaintiff's evidence that she stayed at the deceased's unit on full-time basis. In late 1998 the deceased obtained an apprehended violence order against Mr Skerry who was causing trouble in the block of units. That apprehended violence order included restraints from approaching the deceased as well as his partner, the plaintiff, who was described as a person with whom the protected person has a domestic relationship. 23 I am satisfied that the plaintiff and the deceased lived together in the deceased's unit at Croydon Park between April 1998 and January 1999. Thereafter the plaintiff says that she would reside with the deceased over the weekend for about three days and she also says that she was there when the deceased was sick or on holidays. In this period there is adequate evidence from friends which verifies her frequent stays at the deceased's unit over weekends. 24 I am satisfied that the plaintiff did reside in the deceased's unit at Croydon Park for parts of Friday and the weekend on most weeks after January 1999. I also will accept her evidence that she stayed with the deceased during his holidays or when he was sick. 25 The plaintiff gave evidence that there was a sexual relationship between them and I am prepared to accept this evidence having regard to other evidence such as photographs and occasional observations by friends. 26 I turn to the question of financial interdependence and arrangements for support. It is clear that the plaintiff did not pay any rent when she stayed with the deceased and the deceased appears to have paid food bills and other expenses in relation to entertainment. In fact the deceased appears to have paid gas and electricity bills for the plaintiff's Minto house because she could not afford them. 27 The ownership, use and acquisition of property. Apparently the deceased purchased stereo equipment which they both enjoyed and contributed to the cost of the refrigerator which was kept at the Croydon Park unit. 28 The degree of mutual commitment to a shared life. It is clear that the deceased was not a well man and like the plaintiff was grossly overweight. He suffered from a number of disabilities. Foremost among these was a condition known as peripheral neuropathy which made it extremely difficult for him to hold items in his hands. He would tend to drop things when he attempted to pick them up. The deceased needed assistance with the usual household chores and the evidence is that the plaintiff would assist with these. In December 1999, according to the plaintiff, she was given an engagement ring by the deceased. This fact was corroborated by a number of friends who saw the ring. 29 The couple had no children as a result of their relationship and there was some interaction by the deceased with the plaintiff's children. However, it seems that there was no sharing of the care of the children by the deceased and the children did not live with them at the Croydon Park unit. 30 I have referred to the performance of household duties above. I should mention that this also extended to personal assistance for the deceased which I will come back to later. 31 The reputation and the public aspects of the relationship. There is some evidence of invitations to the plaintiff and the deceased by reference to their Christian names but this evidence does not enable one to draw any inference as to the public aspects of them living together as a couple. Clearly some friends such as Anita Puntillo did spend time with them when they were living together as did some other friends. The engagement was of course a public commitment and an announcement of an intention to marry in the future. Of itself it does not demonstrate the public aspects of the existence of a de facto relationship. Indeed it presupposes the commencement of another relationship. 32 It is necessary to move on to whether in fact the relationship was a de facto one and in this respect the change in the parties' relationship in January 1999 becomes important. 33 This raises the question of how a relationship of this nature does terminate. There have been a number of references in the cases to the problem which started to surface in Australia in cases under matrimonial legislation which provided for parties living separately and apart as a ground for divorce. An earlier case which is of use on the general principles is Main v Main (1949) 78 CLR 636. At page 642 in the joint decision of the majority the following was said:- "Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by both as temporary. In deciding whether there was at any specified date an existing matrimonial relationship, it is, I think, right to say that such a relationship does not end so long as both the spouses bona fide recognize it as subsisting, and in particular it does not end by reason of a separation brought about by the pressure of external circumstances such as absence on professional or business pursuits, or in search of health, or, it may be, even of pleasure. Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist. The weight of each of these elements varies with the health, position in life, and all the other circumstances of the parties."

34 As indicated by the High Court, there are matters of degree of separation, and particularly in accordance with the passages I have indicated, separation by reason of illness or otherwise does not mean that the relationship has ceased. 35 This matter arises in a number of cases under the Property (Relationships) Act and occurs in the context of whether or not there have been several separate periods of relationship. This sometimes is significant because a period of relationship and a separation period might be before the commencement of the Act. The matter was dealt with at an early stage in George v Hibberson (1987) DFC 95-054. That was a decision of his Honour Cohen J which went on appeal to the Court of Appeal. At the trial his Honour Cohen J had the following to say:- "The use of the words 'living or having lived together as husband and wife on a bona fide domestic basis' suggest a degree of permanence which will not cease merely because one party separates for the purpose of going on holidays or going on business. Nor would it cease if, after an argument, one party moved out and stayed elsewhere for a short while or went home to his or her family, if there was an intention to return and if there was a reasonable indication of that intention. See the views of the Law Reform Commission in its report at para 17.18. It must be a question of fact whether on separation one party intended that there should be an end to the relationship or whether the parties or either of them acted in such a way as would indicate that that intention existed. Once that intention or indication is found to exist then, as occurred in McRae v McRae (1967) 68 SR (NSW) 361, the relationship will only be renewed when the parties actually return and live together. It would not be sufficient merely to form an intention to enter into an agreement to resume life together."

36 The theme which his Honour there picked up was repeated in the words of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 740 where his Honour said the following:- "It is correct ... that the relevant relationship may continue notwithstanding that the parties are apart, for example on holidays ... There is, of course, more to a relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue. The learned judge, correctly, treated the matter as a question of fact."

37 McHugh JA agreed with Mahoney JA. Hope JA said he agreed with McHugh JA so that it would seem that this expression by Mahoney JA is a considered view of the Court of Appeal. 38 Since then the matter has been considered in a number of cases. In particular, Powell JA has dealt with this on a number of occasions. In Lipman v Lipman (1989) 13 Fam LR 1 his Honour had the following to say:- "Although I accept that the concept of 'a de facto relationship' does not involve the notion that the parties to it must always be together under the same roof, so that such a relationship may continue to subsist notwithstanding the absence of one party from 'the matrimonial home', and although I do not discount the possibility that 'a de facto relationship' may properly be regarded as continuing notwithstanding that the parties may have separated only temporarily while they attempted to work through some difficulty which they had encountered in their relationship, I am quite unable to see how such a relationship can be said to continue in a case, such as this, in which the 'de facto husband' requires the 'de facto wife' to leave the 'matrimonial home' and installs another in her place. As Mahoney JA said in Hibberson v George 12 Fam LR at 740; DFC at 75, supra.: 'The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance; holidays and the like show this. But where one party determines not to "live together" with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.' I therefore conclude that, in this case, there were two discrete 'de facto relationships'."

39 In Thomson v Badger (1989) 13 Fam LR 559, his Honour Young J had to deal with a case where, as does not infrequently happen, the relationship was one which was interrupted by absences on quite a number of occasions. His Honour referred to the cases to which I have referred and also referred to Re Australian National Railways Commission and Gerlach (1987) DFC 95-048. He used that as a reference to the fact that one must view the circumstances in which the parties ceased to live under the same roof in the context of their total relationship and he posed the question that one must ask in the context of the total relationship as whether there was a mere lovers' quarrel or a termination of the relationship. His Honour looked at the case in hand and described it as one:- "... not being the happiest of relationships but was one which always continued on from where it left off. There was an incident, a separation, then usually a short time later the parties got together on the same basis again as before. In my view the proper determination of the factual question raised is that there was a de facto relationship which continued ..."

40 The matter has also been again referred to by Powell JA in Theodoropoulos v Theodosiou (1995) 38 NSWLR 424, where he referred, with approval, to the statement of Mahoney JA. 41 Also in Gazzard v Winders (1998) 23 Fam LR 716 he once again quoted with approval the statement by Mahoney JA in Hibberson v George. In that case Beazley JA had the following comments to make about Hibberson v George:- "I would comment in passing only that I do not endorse in any unqualified way the comments of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725. For myself, I do not know that it accords either with reality or a proper construction of the Act to find that an interruption which, in a long relationship, may be no more than a hiccup, would have completely brought the relationship to an end. In any event, I can see no reason why a short interruption of the relationship for six weeks in a period of fourteen and a half years should prevent the court from taking into account the circumstance that this was a lengthy relationship of that order. Even if I am wrong, I consider ten and a half years to be a relationship of a lengthy duration."

42 In the light of those matters, I think clearly there is a strong weight of authority which supports the view expressed by Mahoney JA in the Court of Appeal in Hibberson v George. Of particular note is his view that:- "... where one party determines not 'to live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely to enable the one party or the other to decide whether it should continue."

43 The qualification that perhaps emerges from what his Honour Young J was referring to in Thomson v Badger is that when one has a situation of frequent interruptions and then a return to the relationship that may, in fact, lead one, on a factual basis, to suggest that perhaps an expressed intention to leave the relationship was not the real intention and was more a pattern of behaviour. That is perhaps what Beazley JA was alluding to in her comments in Gazzard v Winders. But, in any event, she was also there more concerned with the more difficult circumstance as to whether the Court can take into account earlier periods of interruption to a relationship. 44 That is not the problem that I have here, because I have to determine whether or not a relationship existed at a particular time and it may be arguable that if there had been a series of separations one might have a view that one could say that there had not been a termination because at that particular time the parties were likely to get together again. 45 It seems to me from all that I have dealt with before that at least up until January 1999 it is likely that the plaintiff and the deceased were living together in a de facto relationship. The question is whether that relationship ceased when the plaintiff decided to return to her house at Minto. At the time she returned her daughter, Belinda, was living at home at Minto she being pregnant with her future daughter. It is clear that the plaintiff was concerned about her daughter, Belinda. However her daughter only stayed with her children at the Minto property until the very early part of the year 2000. At that stage she went to Queensland to live. Thereafter there was no reason why the plaintiff could not return to live with the deceased. She gave evidence of the deceased and her making plans for her to come back to live full time at Croydon Park but this did not occur. In fact the move was planned for the weekend after the deceased died. 46 Here it is important to observe that the plaintiff was at pains to preserve her housing commission home at Minto. This caused her financial hardship and at times she fell behind in the rent. One can well understand that with her difficulties with her daughter and the damage to her home that she might have felt compelled to go back to her home at Minto. There does not, however, seem to me to be any adequate reason why she did not return when these impediments were removed. She did not give up her housing commission home and live with the deceased. The conclusion seems to me to be that the deceased and the plaintiff had decided to live apart. The plaintiff returned to her home at Minto and merely saw the deceased over the weekends or at times when he was sick. It is interesting to note that in some of the public records which were tendered during this period the deceased described the plaintiff as his girlfriend. See his admissions in May 2000 to Royal Prince Alfred Hospital. In my view the plaintiff and the deceased were not living in a de facto relationship at the date of death. 47 I return to the question of whether or not the deceased and the plaintiff were living together in a close personal relationship. This question arises because the Family Provision Act also adopted definitions which are found in the Property (Relationships) Act 1984. The Act applies to domestic relationships which are defined in section 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,

(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." 48 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. 49 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".

50 So far as the first requirement is concerned since we are 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.

51 The second requirement is cumulative. There must be both domestic support and personal care. 52 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."

Accordingly, personal care connotes care taken in connection with such matters. It could be provided by:-

(d) a daughter for her elderly incapacitated mother.

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

54 There is adequate evidence in the present case to demonstrate that when the plaintiff was at the deceased's residence whether it be when she was living full-time or when she was there at weekends after the full-time period of cohabitation finished that she attended to the giving of personal care to the deceased. The evidence showed that the plaintiff helped the deceased from time to time with showering because he had difficulty picking up things with his hands. She attended him when he was sick in bed giving him liquids. She helped him to get to the toilet and cleaned up his clothing when he had been unsuccessful in reaching the toilet himself. There is also evidence that the plaintiff would dress the deceased as he had difficulty managing on his own. The deceased would lie on the bed and the plaintiff would put his legs through his trousers so he could then get up with his clothes on. She helped him wash. 55 The definition of "close personal relationship" includes as a requirement that it be between two adult persons who are living together. This would seem to be not as complex a problem as determining whether or not parties are living in a de facto relationship. As I have observed concepts of being together as a couple are not relevant and it is merely the physical fact of living together that is important. Here at the date of death the plaintiff was not living on a full-time basis with the deceased although they had plans to live together in the future. However, those plans had not been implemented and it would seem that at the date of death the plaintiff was not in a close personal relationship within the meaning of the definition as they were not living together. 56 I turn to the plaintiff's further alternative claim which is that she was at one time part of the household of the deceased and at some time partly dependent upon him. Given my findings there is no doubt that she was part of the household during the period when they were cohabitating together on full-time basis. The question that is raised by the defendant in her submissions is whether or not she was dependent upon the deceased. In this respect it was submitted that she was not dependent because she could, in the circumstances, have lived at her home at Minto. 43 In Ball v. Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. His Honour Mr Justice Samuels 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."

57 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. "

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

59 In Benny 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. 60 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."

61 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". 62 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. 63 As has been pointed out the question is one of fact and in the present case at the time she was living with the deceased a on full-time basis the plaintiff was in fact dependent upon him for that accommodation. It also seems that she was probably dependent upon him for the provision of funds to help her maintain her house at Minto. Accordingly, I am satisfied that the plaintiff is an eligible person. 64 However it is necessary under s 9 (1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of 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.'" 65 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."

66 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.

67 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."

68 I turn to consider the plaintiff's own personal situation. She is 48 years old and lives in her Housing Commission unit. Her income comprises $550 net per fortnight from her pension entitlements and some small amounts she receives from doing piece work at home. She has no assets apart from the recently acquired entitlement to $18,920 which she will receive under the deceased's superannuation fund. She owes costs in respect of earlier proceedings of $14,628.05. She also owes the Court $1,251.25 for filing fees. 69 There is evidence from the plaintiff's doctor, Dr Hu, who describes her as a very sick lady suffering from severe and chronic anxiety disorder, depression, severe asthma and bronchitis, and arthritis in her hands and knees and back. She is as I said, grossly overweight and has been counselled in respect of that matter. As a result she has severe pain and breathlessness even when walking from her front door to her car. The doctor is of the view that she is unable to work for all time and will continue to incur heavy medical expenses. His view was certainly borne out by the difficulties the plaintiff had moving about in the courtroom and it is perfectly clear that she would never be able to achieve any ordinary work apart from the little casual work she now does at home. 70 It is also necessary to consider the situation of others having a claim on the bounty of the deceased. In this case the only other person having a claim on the deceased's estate is the deceased's sister. The defendant has not put before the Court any evidence of her financial circumstances and the Court can accordingly conclude that she does not wish such matters to be taken into account when considering the deceased's obligation towards her. 71 The defendant had not seen her brother the deceased since 1995. At that stage, after the death of their mother, their mother's property had been sold. Presumably with his share of the proceeds the deceased acquired the unit which he held until his death. His sister and her husband assisted with the location of that unit and its purchase for him. For many years before this the deceased had been suffering from a variety of drug problems. According to the defendant whose evidence I accept the deceased was setting out to make a new start in life and after the sorting out of these arrangements with his sister he said he would get in contact with her in due course. This he never did. Although there was no contact during the last five years of his life except one Christmas card it seems to me that there has been some contact of beneficial nature over their lives in the years beforehand. 72 It is necessary to see how the plaintiff says that she has been left without adequate and proper funds for her maintenance, education and advancement in life. In this regard the plaintiff put forward a need to have her own home. She did not wish to continue to live in her Housing Commission house. She presented some evidence that units can be purchased for as low as $155,000 and, indeed, pointed to the sale of the deceased's unit for $130,000 as evidence of the availability of such accommodation. However this evidence really does not assist the plaintiff because it is unlikely that there will be sufficient funds in the estate for her to be able to purchase a unit. It would be highly unlikely that she could borrow funds for this purpose. She has put forward no alternative basis upon which she seeks to improve her situation although living on a pension is extremely difficult. Clearly she has some need for a sum to give her some support in case of a need for medical or other unforeseen problems. 73 In my view it is appropriate that the plaintiff have a legacy out of the estate of the deceased in the sum of $60,000 and I so order. I order that the plaintiff's costs on a party and party basis and the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased. Interest is to run on the legacy at the rate provided for in the Probate Administration Act if the legacy is not paid within one month from today's date.

Last Modified: 04/17/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(1989) 12 Fam LR 725

(1989) 13 Fam LR 559

(1998) 23 Fam LR 716

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