7 For a period in 1963-1964 the Deceased and his family resided in a house property owned by the Defendant at 6 Wyndham Street, Greta. The Defendant was at that stage a widow, her husband having been killed in an industrial accident some time earlier. Their departure from that property would appear from the evidence of the Plaintiff to have been in somewhat dramatic circumstances, consequent upon an incident involving the Plaintiff's mother and the Defendant. However, subsequently, the Deceased left the Plaintiff's mother and commenced to reside with the Defendant at 77 Wyndham Street, Greta. That house property had devolved upon the Defendant as a result of the death of her first husband.
8 The Defendant had three children by her first marriage, all of whom are now adults.
9 The Deceased and his first wife, the Plaintiff's mother, subsequently divorced, and on 20 October 1971 the Deceased married the Defendant. The Deceased's first wife died in 1991.
10 The evidence was silent concerning the circumstances in which the Deceased became a co-owner as tenant in common with the Defendant of the house property at 77 Wyndham Street, Greta.
11 The Plaintiff has been married three times, first in 1972, for a period of about five years; then in November 1982, for a period of twenty-one years; and, more recently, on 6 March 2004 to his present wife, Susan Annette Troy, to whom he remains married.
12 It should be recorded that the Plaintiff, who gave his present name as Kenneth Lothar Ernst Rudolph Troy, has during his lifetime used a number of names, having changed his surname on various occasions.
13 The Plaintiff has no tertiary or vocational qualifications. He has never held a permanent full-time job. Throughout the period from 1979 to the present the Plaintiff has been employed in a variety of occupations. From about 1993 to about 2002 he engaged in seasonal work as a forklift driver employed by Golden Circle Cannery, where he earned up to $27,000 a year. In 2003, whilst working for another employer, he suffered an injury to his shoulder, which resulted in him giving up that employment and in receiving workers compensation in an amount of $422 a week.
14 The Plaintiff gave evidence concerning the health problems resulting from that injury, and the fact that he has not been able to work since then. He is currently in need of surgical treatment for his shoulder and hopes that if that procedure is successful, he will be able to resume some form of employment.
15 The Plaintiff is currently an undischarged bankrupt (his present bankruptcy being the second occasion on which he has been bankrupt, on each occasion the bankruptcy being ordered upon the Plaintiff's own application).
16 I have already referred to the fact that the value ascribed in the inventory of property to the only asset in the estate of the Deceased was $100,000. However, it was suggested on behalf of the Plaintiff that a more appropriate valuation was $160,000. Nevertheless, there was no expert evidence presented to the Court in this regard.
17 In calculating the value of the estate available for distribution, the costs of the present proceedings must be taken into consideration. It is estimated on behalf of the Plaintiff that his costs will total about $44,700, whilst it is estimated on behalf of the Defendant that her costs will total $23,540. It will be appreciated that, in consequence, if the totality of the costs (in an amount of about $68,200) were payable out of the only asset in the estate of the Deceased, there would remain probably less than $32,000 in the estate. In this regard it should also be noted that the interest of the Deceased in the house property at 77 Wyndham Street has been transferred to the Defendant, who already was the owner of the other one half share as tenant in common in that property. In consequence, she is now the registered proprietor of the totality of that property.
18 Regarding the Plaintiff's costs, however, it should be noted that during the course of the hearing Counsel for the Plaintiff informed the Court, that in the event that the Plaintiff were liable to pay any part of his costs over and above any amount which he might receive by way of costs out of the estate of the Deceased, the Solicitor for the Plaintiff would not require the Plaintiff to pay more than $25,000 out of his own pocket.
19 It should also be here recorded that, in consequence of very recent correspondence between the Solicitor for the Plaintiff and the Australian Government Solicitor, on behalf of the Australian Bankruptcy Administration, the Official Receiver, as official trustee in bankruptcy of the Plaintiff, has agreed that any amount which the Plaintiff might receive in the present proceedings would not in its totality be required to be paid to the Official Receiver, to be used to meet the indebtedness of the Plaintiff's bankrupt estate to his creditors, but that the Official Receiver would require to be paid to him for such purpose only 40 per cent of any amount which the Plaintiff might receive.
20 It should be emphasised that it is incumbent upon an applicant for an order for provision under the Family Provision Act to set forth as fully and as frankly as possible all available information concerning the applicant's financial and material circumstances.
21 In the instant case, this the Plaintiff has signally failed to do. Only in the course of cross-examination did it emerge that at the present time the Plaintiff has no income. In his affidavit evidence he referred to an income of $422 a week being paid to him by way of worker's compensation. However, under cross-examination he stated that those worker's compensation payments had ceased on 3 May 2005, about seven weeks before the hearing. He said that he had consulted a solicitor about this cessation in his worker's compensation payments, but that he had not given instructions for any proceedings to be instituted in that regard. He also said that the surgery required to his wrist would not be paid for by his former employer or by Workcover.
22 According to the Plaintiff his bankruptcy did not discharge various motor traffic penalties incurred by him and he was paying off the outstanding balance of those penalties (in an amount of about $2,000) at the rate of $30 a fortnight from his worker's compensation income.
23 Apart from the statement in his affidavit evidence that he was currently residing in a home unit owned by his present wife (which unit was said by the Plaintiff to be worth about $180,000, with an outstanding mortgage of about $20,000), the Plaintiff did not in his evidence in chief set forth any details concerning the financial and material circumstances of his wife. Neither did Mrs Susan Troy, who swore an affidavit in support of her husband's claim, provide any such information.
24 The home unit in which the Plaintiff and his wife reside is located at Nundah, which is a suburb of Brisbane. Details were elicited under cross-examination concerning the nature of the accommodation in that home unit, which is located in a security building, and which has a security car space attached to it. The Plaintiff's wife, who worked before her marriage to the Plaintiff, has a superannuation entitlement, in an amount which was not disclosed. She is employed in a factory, and receives a salary of $800 net a fortnight. She has no other income. The Plaintiff's wife owns two motor vehicles, being a 1998 Daihatsu Terrios (which is a small four wheel drive vehicle), and a Mitsubishi sedan motor vehicle which is about fifteen years old. The Plaintiff has the use of both those motor vehicles.
25 The Plaintiff does not pay any rent in respect to his occupancy with his wife of her home unit at Nundah. Neither does he contribute towards the purchase of food or to household outgoings. The Plaintiff said that he brought nothing into his current marriage.
26 The Plaintiff's evidence concerning the circumstances of his current bankruptcy were skimpy in the extreme. Although it would appear that his liabilities exceeded his assets by about $114,000, he was extremely vague concerning the identity of and amounts owed to his various creditors. He did, however, say that the largest creditor was Centrelink, to which entity he owed about $33,000.
27 It then emerged, in passing, during the course of the Plaintiff's cross-examination, that, in consequence of his having received payments from Centrelink (which, as I understand, were the payments which gave rise to his indebtedness to Centrelink in the bankruptcy), the Plaintiff is now facing a criminal charge, apparently for fraud, which will be heard on 15 July 2005 in Brisbane. Although it would seem to me that this charge, and its possible consequences (as well as any associated costs which the Plaintiff might bear in defending the charge, if it is to be defended) would be of considerable relevance to the Plaintiff's present financial and material circumstances, and of significance to any assertion of present need of the Plaintiff, the Plaintiff chose not to place before the Court in his evidence in chief any information concerning the existence or possible consequences of this charge, which was to be heard a little over two weeks after the hearing of the Plaintiff's present claim.
28 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file.
29 The Plaintiff as a son of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings. The only other eligible persons in relation to the Deceased are the Defendant, who, as the widow of the Deceased, is an eligible person within paragraph (a) of that definition; and Johnny Sledzianowski, Rosetta Millen and Carin McNalley. The relationship of those persons to the Deceased is not disclosed in the evidence. I have assumed that they are the three adult children of the Defendant, and that they may be eligible persons within paragraph (d) of the definition of that phrase. In this regard, however, I note that the Deceased in his will refers to "my daughter ROSITA [sic] MILLEN". Although served with a notice of claim none of those three persons has made any claim against the estate of the Deceased.
30 In performing the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-210 the Court must first consider whether, in consequence of the testamentary dispositions of the Deceased, the Plaintiff has been left without adequate provision for his proper maintenance. (See, also, Vigolo v Bostin (2005) 79 ALJR 731, which affirmed the correctness of the foregoing test in Singer v Berghouse.)
31 I do not overlook the deprived childhood of the Deceased, his periods in institutions, or the problems which resulted from the apparent total abdication by the Deceased of his parental obligations towards the Plaintiff during the Plaintiff's formative years. Nevertheless, the Court is required by section 7 of the Family Provision Act to look to the circumstances as they obtain at the present time, not to the circumstances which existed almost half a century ago.
32 I would also observe that it is all very well for the Plaintiff to hold the Deceased accountable for the personal shortcomings of the Plaintiff and the difficulties which he experienced in his earlier years. However, many persons overcome such difficulties and make a success of their lives, and achieve a degree of material prosperity.
33 It is apparent that the Plaintiff is not a good financial manager. He has been bankrupt on two separate occasions. At the age of 56, and having been in more or less continuous employment (albeit neither permanent nor full-time) for the past 25 years, he has no assets, and little in the way of prospects
34 Nevertheless, despite having no assets, and being an undischarged bankrupt, the Plaintiff has secure accommodation, in consequence of his present marriage, which the Plaintiff said was a successful and happy one, and which he expected to continue. He is required to make no contributions towards his accommodation or towards household outgoings or food. He has the use of two motor vehicles.
35 From a personal point of view it is understandable that a man might not wish to be totally dependent upon his wife. Nevertheless, the Plaintiff, who is an undischarged bankrupt, is in better practical and material circumstances than many persons who must work to maintain themselves (and often to maintain a spouse and children). The Plaintiff expressed a desire to acquire a residence in his own name, preferably a house rather than a home unit, and that such residence should be located in a suburb of Brisbane. He offered as a possible purchase price for such a residence an amount of $260,000. It seems to me that such a desire cannot in any way constitute relevant need in the Plaintiff.