1 MASTER: This is an application under the Family Provision Act 1982 in respect of the late Guiseppe Sita who died on 16 January 2002. The deceased was survived by his widow Amelita Sita, one of his former wives, the plaintiff in these proceedings Elizabeth Sita and his two children.
2 The deceased made his last will on 19 February 2001. His two children, Bruno Sita and Franca Catalano, were joint executors under the will.
3 The deceased gave a right of residence to his widow in respect of the downstairs of his home at Beacon Hill. The residue he gave to his two children equally. There was no provision for the plaintiff in the will.
Assets in the Estate
4 The only substantial asset is the deceased's home, which was recently passed in at auction. However, a recent estimate shows it is expected to sell for between $730,000 and $745,000. There was cash in the estate of $10,000 and a car worth $3,500.
5 There are a number of debts in the estate. Various general debts totalled $1,000, credit card debts $9,807, funeral expenses 12,867 and there was a debt due to the plaintiff of $12,500 plus interest, which is estimated at $4,000 together with some costs. This totalled in the order of $40,000.
6 There were also proceedings by his widow, which had been settled on the basis that the widow gives up a right to the residence and in lieu thereof will receive $110,000 inclusive of costs.
7 Costs have been incurred in all matters. The defendants' costs in both matters on the basis that it is a one day case come to about $35,000. The plaintiff's costs on the basis that it is a one day case are estimated in respect of the solicitor at $34,500 and counsel at approximately $8,000. The plaintiff's costs are no doubt on a solicitor and client basis and I will refer to that later.
Family History
8 The deceased was born on 28 October 1928. In 1958 he came to Australia, leaving his family at that stage back in Italy. His daughter, Franca was born on 19 July 1958. The plaintiff herself also came to Australia in 1959. In 1962 the deceased's family, namely his wife and daughter, came to Australia. On 15 December 1964 their son Bruno was born.
9 The plaintiff herself moved between Australia and Italy. She returned to Italy in 1971 and came back to Australia in 1984 when she was divorced from her husband. In 1986 she received a disability pension.
10 In June 1986 the plaintiff and the deceased met. They continued a friendship and a relationship, which was a sexual relationship from the commencement, although they did not share a house for some time. On 22 October 1993 the deceased retired from the Warringah Council where he was working for many years as a concreter. He received a payout of some $90,000, of which $25,000 was used to pay tax.
11 It was in the middle of 1994 the plaintiff moved in to live with the deceased at the deceased's home at Beacon Hill. Some weeks later, on 18 June 1994, the plaintiff and the deceased were married.
12 Between June 1994 and November 1994 the plaintiff and the deceased had a honeymoon in the United States and Italy for some four and a half months. During that period the deceased spent approximately $40,000, much of which was on gifts for various members of his family.
13 The marriage between the plaintiff and the deceased continued until they separated on 27 August 1999. The decree nisi was pronounced on 20 December 2000 and the decree absolute on 21 January 2001.
14 On 8 February 2001 the deceased married Amelita Millan, to whom I have referred. He made his last will on 19 February 2001.
15 There was a property settlement on 23 March 2001 and in May 2001 orders were made in the Family Court in respect of that property settlement. Under that settlement the plaintiff received $10,000 to be paid on or before 1 May 2001, and $12,500 on or before 1 November 2001. It was on 18 May 2001 that the $10,000 was paid to the plaintiff. The balance of the amount was not paid before the deceased died on 16 January 2002.
16 The summons in this matter was filed on 12 November 2003 and probate was granted to the defendants on 30 April 2004. The widow's application was commenced on 9 February 2005.
Eligibility of the plaintiff
17 The plaintiff is a former wife of the deceased and as thus is an eligible person. She must, however, establish under s 9(1) of the Act the evidence of factors warranting the making of the application. The question of factors warranting in respect of former spouses has been dealt with in a number of cases. In Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 a number of the judges dealt with this matter. Kirby P had the following to say:
"Fifthly, the respondent, picking up one of the themes of Mr Landa's comments, urged that s 9(1) of the Act was to be read in the light of the policy of the law to promote the finality of settlements of property disputes by orders made in the Family Court. Where such orders had been made an order under the Act in the case of a former spouse should be exceptional. Only if this approach were adopted would the policy of the Family Law Act (Cth) be fully achieved. That policy is that parties whose marriage has been dissolved and in respect of whom orders have been made disposing of their matrimonial property could go their separate ways. Save for the rare and exceptional cases provided under the Family Law Act (Cth) , such parties should henceforth face no financial obligation from one to the other.
This public policy was referred to by Young J in O'Shaughnessy (at p 149). It is also stressed by his Honour in the present case. There is no doubt that in most cases the achievement of a final property settlement in the Family Court would be seen by the parties in current social circumstances as terminating any moral claim of a former spouse to provision in the will of the other. Confronted by the news that he or she had been excluded from the will of the former spouse, the response would, in the overwhelming majority of cases, be: 'Our marriage was dissolved. We settled our financial affairs. We can each start a new life. That was the whole point of the Family Court proceedings.' To this extent I agree with what Young J has written in O'Shaughnessy and in this case."
18 Mahoney J said the following:
"That which the Court 'shall first determine' is whether 'there are factors which warrant the making of the application'. That phrase may be contrasted with the references otherwise made to the determination of, for example, 'what provision, if any, ought to be made in favour of an eligible person...'. On the face of s 9(1) there is a distinction between 'factors which warrant the making of the application' and factors which warrant the making of an order.
That distinction accords with the principle which, in my opinion, is inherent in the legislation, viz, that, special cases apart, an order is to be made only if the deceased has made default in the performance of a duty which he owed to the particular plaintiff. I do not think that this case requires a final analysis of the basis of applications under the Act: it will be sufficient to refer to this matter in general terms. But the Act authorises the Court to 'order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person' (s 7). That does not mean that, if the plaintiff establishes a financial need within the section and if on taking into account the considerations referred to in s 9(2) (the discretionary considerations) there be nothing to the contrary, an order must be made. The statute assumes that the deceased, in what he has done during his life and by his will, has failed to discharge a duty which he owed to the plaintiff (the moral duty). Thus, a plaintiff may be a former spouse who, on dissolution of the marriage, received what on any view she was entitled to have and there may have been no further relationship between them so that none of the factors in s 9(3)(a) to s 9(3)(c) are of relevance. But, at the deceased's death, she may have a financial need. In such circumstances, the fact that the plaintiff has established that she was a former spouse and has a financial need would not, as such, entitle her to an order. It would be necessary for her to establish that, in some way or because of circumstances within s 9(3)(d) the deceased had a duty to her which involved that he should have provided for her financial need. This will be so a fortiori where the basis for the eligibility of the plaintiff is alleged to be within para (d) of the definition of 'eligible person'. Importantly, it can be seen that the question of need is a separate matter and factors warranting are something different from that."
19 In another case, Churton v Christian (1988) 13 NSWLR 241 his Honour Priestley JA said the following in respect of this type of application:
"Mrs Christian is a member of a class in respect of whom warranting factors may often be more difficult to find. It is common experience that divorce sometimes brings to an end all links between previously married people. In such cases, warranting factors might well be expected usually to be absent, although this need not be universally so. On the other hand, divorced persons may remain on close terms, sometimes little different from those on which they lived when married. In every case it is necessary to examine the actual relationship between the two people concerned, as far as possible without preconceptions based only on the fact of divorce."
20 In his comments he illustrated a situation which sometimes applies after there has been a divorce and a property settlement: namely, that the parties still continue to have a close association. This was not the case in the present proceeding. There was one telephone call after separation and, apart from that, virtually no contact, apart from the property settlement.
21 There has also 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 and Fitzgerald AJJA. The main judgment was given by Fitzgerald AJA, who seemed to suggest that an application might be warranted if the plaintiff has reasonable prospects of success. This seems to be a somewhat different and perhaps easier test than what was referred to in the other cases in the Court of Appeal to which I have referred. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.
22 In the present case the basis upon which it is suggested that the existence of factors warranting on the traditional grounds are demonstrated is what the second plaintiff alleges was an inappropriate property settlement. Although the second instalment was not paid by the deceased, it clearly will be paid by the estate with interest and costs once the property has been sold. It is always, of course, open during the lifetime of the parties to set aside such a property settlement. The relevant provision in the Family Law Act is s 90K, which includes the following provision:
"Circumstances in which court may set aside a financial agreement or termination agreement:
(1) A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:
(a) the agreement was obtained by fraud (including non-disclosure of a material matter); or