Stares v Public Trustee

Mr P Blackburn-Hart for plaintiff COUNSEL : Mr L Ellison for defendant

Dennis & Company for plaintiff SOLICITORS : Mr Robert Field for Public Trustee

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

JUDGMENT 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Garry Michael Stares who died between 3 and 4 November 2001. 2 The deceased was survived by his de facto partner, the plaintiff; a son of theirs, Clinton, and his two children of his first marriage, Tyson and Corey. 3 The deceased made his last will on 29 October 1984 before he met the plaintiff. Under that will he appointed the Public Trustee as trustee and left the whole of his estate to his two sons, Tyson and Corey. 4 The assets of the estate represent insurance and other moneys and have been reduced to cash in the sum of $191,114. 5 There have been costs incurred in this matter. On the plaintiff's part the costs come to $30,801, and on the defendant's part, $25,400. This is a total sum of $56,201, which leaves a balance in the estate of $134,913. FAMILY HISTORY 6 The plaintiff was born on 25 November 1958. Between 1976 and 1982 she was in a de facto relationship with one Kym Jones. The deceased married Beverley Mitchell on 13 March 1979. They had two children, as I have mentioned, Tyson, born on 25 December 1980, who is now aged 24 years, and Corey, born on 13 September 1982, who is now 22 years of age. The deceased was divorced from his former wife on 18 October 1984 and a few days after his divorce, he made his will, to which I have made reference. 7 It was also in 1984 that the deceased and the plaintiff met. The plaintiff was working as a bar assistant, and the deceased had casual work as a bouncer, and was an A grade footballer. The plaintiff and the deceased commenced living together in the plaintiff's flat at Cronulla. After, and at the request of the deceased, the plaintiff stopped doing bar work. 8 In 1985 the deceased worked at the Sutherland Council and suffered a knee injury. Unfortunately, he removed the plaster cast from that too early, which gave him permanent injuries, and indeed ended his football career. 9 By 1986 the deceased had returned to work for the council and the plaintiff was doing contract work cleaning locally at the bowling club. Once again, they moved, in 1988, and purchased a house at 67 The Ridge, Helensburgh, each of them borrowing $2,000 from their parents for a deposit on the purchase of that house. 10 The deceased attempted to set up a concrete business but that did not proceed and he, for a while, did upholstery work, and the plaintiff helped in this business. By 1989 the plaintiff had started work at Woolworths at night, working filling shelves. 11 The deceased's son, Clinton, was born on 26 February 1990, and is now fourteen years of age. By 1991 they had fallen behind in their mortgage payments, the house was repossessed and sold. The upholstery business failed, and they again started renting. At this stage the deceased started work with Cleary Brothers. By 1994 the plaintiff had stopped cleaning work to look after their son, Clinton. 12 In 1995 the plaintiff found a place at Parkes Street, Helensburgh, which she was able to persuade someone to rent to them on the basis that he would do a lot of work to it to put it in good order. In this work the plaintiff and the deceased and the plaintiff's father and mother helped restore the property. The deceased built a bar in the backyard of the house, probably something that was not particularly wise. By 1996 their son was playing football, and the deceased was coaching the team, with the plaintiff acting as the manager. 13 In 1997 the plaintiff returned to work at Woolworths, working about 27 hours a week. The deceased had a knee operation and was off work for a while and there was unhappiness in the relationship between the plaintiff and the deceased. The deceased's drinking at this time, when he was off work, was almost continuous. The plaintiff herself, a year or two later, had a shoulder operation and had to leave work for a while. 14 By November 2001 the relationship was quite unhappy and the plaintiff was at least thinking of ending the relationship, although this in fact did not take place. The deceased took his own life between 3 and 4 November 2001. 15 Probate was granted on 24 April 2002 and on 12 July 2002 the trustee of the deceased's superannuation fund resolved to pay the deceased's superannuation to the plaintiff, for which she received $79,248.02. 16 The summons was filed in time and in November 2003 the plaintiff had another operation to her shoulder which meant she could only work at the check-out at Woolworths. 17 It is clear that the plaintiff was still the de facto partner of the deceased at the date of death, although she thought of and took some steps towards leaving, but she did not, and came back to find the deceased dead. 18 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 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 inter-relationship which exists between 'adequate provision' and 'proper maintenance' et cetera 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." 19 I turn to the situation in life of the plaintiff. The plaintiff is aged forty-six years, single, with a dependent child, Clinton, who is fourteen years of age and halfway through year 10. She shares a flat with a former partner, Kym Jones. They share expenses of rent and food. Although there is a sexual relationship, they are mere friends, rather than a committed relationship as partners. 20 Each of them feels free to leave, and in fact, the plaintiff would like to leave and have a home by herself with Clinton. In any event, it is probably irrelevant because there is no information about Kym Jones' financial circumstances which, given his position, are probably fairly dire anyhow. 21 The plaintiff has furniture worth $6,500 and a car worth $14,000. She has debts totalling $21,044.40. One of these is at least in the sum of $9,436 and is statute barred, but she still feels an obligation to pay it. She works at Woolworths in the check-out as an operator, and also receives various Social Service payments, and these come to $540 per week. She also does some casual cleaning, which gives her $40 cash in hand. 22 At the moment Kym pays the rent on the flat and she shops and provides all the food. There is no full analysis of her expenditure and how the money is spent. 23 It is necessary to consider the relationship between the plaintiff and the deceased. For most of the time they seemed to get on well. Their main problems were drinking and gambling, the drinking particularly with the deceased, and it seems it was a substantial occupation, particularly once he built the bar in the backyard of his home, where he frequently entertained friends. The other problem seems to be the plaintiff's gambling. She liked playing the poker machines and this caused at least two substantial disputes with the deceased in the course of the relationship. 24 It is interesting to note that when the plaintiff received $79,000-odd from the superannuation fund, she spent about $41,000 on purchases which she could identify. This included buying a $6,000 bike for her son, and paying off the hire purchase on her car, which was probably a sensible thing. The balance, a sum of $38,000, she cannot account for. She can give an explanation of what she spent it on. But, having regard to the evidence given in cross-examination, it seems to me fairly likely she spent a substantial part of it on poker machines. 25 Importantly though the children did not contest the payment of the superannuation to the plaintiff on the basis that they would receive something from the estate. 26 As far as contributions are concerned, the plaintiff certainly worked, sometimes part time, and sometimes she was looking after the child. The deceased also worked throughout the relationship and earned money. The plaintiff herself suffers from anxiety and is treated for depression. 27 It is necessary to look at the way in which she says she is left without adequate means for her proper maintenance, education and advancement in life. The first thing she needs to do is pay off her debts, a sum of $21,044. She also talked in her affidavit evidence of the need to support Clinton, particularly at TAFE when he leaves school at the end of this year. There is a high probability such courses will be paid for if he gets an apprenticeship by his employer, but the detail of this does not appear in the evidence. It is just a concern of hers. In any event, he may stay at school. 28 The plaintiff had thought at some stage she would want to buy a unit, but now she faces the reality that she will never be able to afford to buy one, and therefore she does not put that forward as something she needs as the de facto widow of the deceased. 29 She also has had experience in cleaning and says that what she wants to do is set up a commercial cleaning business, and she has spoken to a friend, which friend has given her estimates of the costs of such a business. Those costs amount to $13,580 and include things such as a computer and amounts for insurance and other matters. 30 I think that estimate is probably right. Whether or not the plaintiff is able to do it is really a matter for her and she would need a substantial amount of help. But in any event, I think it is praiseworthy, and certainly an appropriate thing for her to try and do. She also seeks a sum for emergencies and contingencies. 31 It seems to me in terms of the claim put by the plaintiff that she has somewhat limited requirements, apart from something to help her as a backstop. 32 It is necessary to consider the situation in life of other persons having a claim on the testator's bounty. Corey is 23 years of age, has no dependents, and is living with his girlfriend. Although he does not think it is a de facto relationship, it probably is. It is of little moment in any event, and there is no detail of his girlfriend's assets and income. He has no assets apart from tools. He has a personal liability of some $8,000. He works as a bricklayer and receives some $750 a week net. There was no challenge to his relationship with his father, and there was no contributions to the estate. 33 He did indicate that he would like to buy a unit, but he provided no evidence of the type of unit he would like to buy, and he had a vague idea of what the costs would be. He did not seem to have made any detailed investigations as to what he could borrow in order to deal with it. He also expressed a need for a car, but does not quantify it. 34 This is probably something which would be useful for him in his employment and it is probably an appropriate thing. He also mentioned the need for shoulder reconstructions at a cost of $3,000 to $5,000 each. There was no medical evidence to support this, but apparently he has been told he may need it. 35 The situation in the life of Tyson Michael Stares. Tyson is 24 years of age and has no assets. He is a casual employee in some printing business, earning between $800 and $1600 per month. He, like his brother, suggested a need for a house. Likewise, he has not done anything to actually investigate this matter. His only real thought as to his future is to do a natural science course at university but he recognises that he would have to get the Higher School Certificate before he could be eligible to do such a course. 36 The plaintiff's relationship with the deceased was for a period of eighteen years. At the end it was not particularly happy. Each contributed to the relationship but their lifestyle meant after eighteen years they had accumulated nothing. It was all spent on the way through. The plaintiff still seems to be doing this. 37 In Marshal v Carruthers [2002] NSWCA 47 Hodgson J said: "63. The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One factor which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased. 64. The Master referred to the following statement of principle which appears in Luciano v Rosenblum [1985] 2 NSWLR 65 at 69: It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.

65. I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion, it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage occasioned by the greater responsibility which women often take in looking after children. That factor is of course absent here." 38 Here, in this case, there was a child. Even taking the superannuation into account in this matter, the estate is quite a small one. I do think in this case there is a real possibility that the plaintiff may waste any further inheritance by her addiction to gambling. 39 I have from time to time referred to the comments made by Young J in Vavros v Bondy, unreported 29 August 1988, and also to the decision of Powell J in Howarth v Reed. There his Honour referred to the possibility of a provision not being applied by the person for the purposes intended by the Court. At pages 43 and 44 his Honour went on to say: "While, as will be apparent from what I have earlier written, I am deeply concerned at what I regard as the totally unrealistic approach to the management of their affairs adopted by Mr and Mrs Howarth, which approach, if persisted in, will almost inevitably lead to the benefit of any order which might be made in Mrs Howarth's favour being dissipated in short order, it seems to me that, while that is a matter which may bear on the form of order to be made, it is not a matter which ought, without more, to be regarded as disqualifying Mrs Howarth from receiving the benefit of any order to which she might otherwise be entitled. Nor is this a novel view, for a similar approach is reflected in the following passage in the judgment of Young J in Bondy v Vavros (29 August 1988 (unreported)): 'I should interpose at this point that in one sense it does not matter if I form the view that a plaintiff is a spendthrift. If a person is entitled to an order, what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money may be wasted on wine, women and song in a short period of time. I have deliberately used that expression to make it clear that I am not referring at the moment to the facts of this particular case. On the other hand, when one is considering what a wise and just testator would have done, if one can see that a plaintiff is a spendthrift and the testator has arranged his will in such a way as to limit the funds flowing to the plaintiff, then one may very well come to the conclusion that the plaintiff has failed to establish that there has been any breach of moral duty.' 40 The question, then, is what is the form of order which ought now to be made?" 41 Both their Honours say that however the money may be spent, it will not disqualify the person from receiving the entitlement. The real question is whether there ought to be any conditions attached to any legacy. Having regard to the small amount left in the estate, and the various disbursements to which the plaintiff has referred, I have decided I will not place any restriction on the legacy to be awarded. 42 The orders I make are:

1. I order the plaintiff be paid a legacy out of the estate in the sum of $80,000. 2. Interest is payable on the legacy at the rate provided for under the Wills (Probate and Administration) Act if not paid within one month from the date of this order. 3. Costs of the plaintiff on a party/party basis and the defendant on an indemnity basis to be paid or retained out of the estate. I order the return of the exhibits.

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