5145/03 JOHN CHRISTOPHER WHEATLEY -v- ROBIN JUDITH WHEATLEY
JUDGMENT
1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.
2 By summons filed on 3 October 2003 the Plaintiff, John Christopher Wheatley, claims an order for provision for his maintenance and advancement in life out of the estate and/notional estate of his late mother, Beverley Denise Wheatley, also known as Beverley Mabel Wheatley (to whom I shall refer as "the Deceased").
3 The Deceased died on 10 October 2002, aged about 81. Probate of her will dated 1 October 1994 was on 20 December 2002 granted to Robin Judith Wheatley, the executor named in such will (who is the Defendant to the present proceedings). By that will the Deceased left the entirety of her estate to the Defendant.
4 The chief asset in the estate of the Deceased was a house property situate at and known as 6 Alma Street, Clontarf ("the Alma Street property") to which a value of $1,200,000 was ascribed in the inventory of property. That house property was in January 2004 valued at $1,400,000. The other assets in the estate, apart from a loan of $50,000 owing by the Defendant to the Deceased, total about $12,500. The liabilities of the Deceased total somewhat over $8,000. The Alma Street property and the other assets have been transferred into the name of the Defendant.
5 It will be appreciated that in calculating the value of the estate available for distribution (or which may be the subject of an order for provision), the costs of the present proceedings must be taken into consideration, since the Plaintiff, if successful, will be entitled to an order that his costs be paid out of the estate of the Deceased, whilst the Defendant will be entitled to have her costs out of the estate, irrespective of the outcome of the proceedings. The Plaintiff's costs are estimated to total about $64,000, whilst those of the Defendant are estimated to total about $29,000 to $30,000.
6 The Plaintiff and the Defendant are the only children of the Deceased, who was married only once, to the late John Leslie Wheatley. (The fact that the Defendant was adopted does not affect her status as a child of her adoptive parents.)
7 The Plaintiff was born on 28 February 1948, and is presently aged 57. Although he has never married, the Plaintiff has two children, being daughters (born of separate relationships), Charlotte (who was born on 10 January 1987 and is presently aged eighteen) and Jovi (who was born on 15 August 1990 and is presently aged almost fifteen). Each of those children lives with her mother. The Plaintiff pays child support for Jovi and from time to time provides to both children such support as he is able.
8 The Plaintiff resided with his parents and his sister at the family home at 6 Alma Street, Clontarf until the death of his father, who died unexpectedly at the age of 42 on 26 February 1963. Thereupon the Deceased and her children (who were at that time aged almost 15 and 8) removed to the residence of the Deceased's mother, Mabel Maude Oakey at Sans Souci, where they resided for several years. The Deceased (upon whom, apparently, the Alma Street residence devolved upon the death of her husband) thereupon rented out the Alma Street residence.
9 The Plaintiff left school at the end of 1963 and commenced employment. He studied accountancy part-time and ultimately gained a TAFE Certificate in Commerce in 1971, and became a Member of the Institute of Affiliated Accountants in 1973. From the time when he left school the Plaintiff was in employment until 1987, when he gave up work consequent upon suffering a heart attack. He has not worked since that time. From 1988 until 1992 the Plaintiff was in receipt of sickness benefits. Since 1992 he has been in receipt of a disability support pension.
10 In December 1971 Mrs Oakey, the Plaintiff's grandmother, sold the Sans Souci residence. She, the Deceased, the Plaintiff and the Defendant thereupon moved back to the Alma Street residence. In June of the following year Mrs Oakey purchased a residence at 22 Vista Avenue, Balgowlah Heights, where she resided for the next twelve years, until she entered a nursing home in 1984.
11 After an altercation (to use a somewhat neutral term) between himself and the Deceased, the Plaintiff in August 1972 departed the Alma Street house and moved into residence with his grandmother at the Balgowlah Heights property. He remained in residence in that property until Mrs Oakey went into the nursing home in 1984.
12 The Plaintiff had in the meantime purchased, for $62,000, in March 1982 a home unit situate at and known as 7/41 Gottenham Street, Glebe. He lived in that home unit for three months before returning to reside with his grandmother in the Balgowlah Heights property throughout the next two years. He then returned to the Gottenham Street home unit, where he has continued to reside to the present time.
13 In July 1982 Mrs Oakey executed a power of attorney in favour of the Deceased. In the exercise of that power of attorney, after Mrs Oakey had entered into residence in the nursing home, the Deceased sold the Balgowlah Heights property, and required the Plaintiff to vacate that property (expressing that requirement through the medium of a letter from her solicitor addressed to the Plaintiff).
14 A very considerable quantity of evidence, both by way of affidavit evidence and oral evidence under cross-examination, given by the Plaintiff and by the Defendant, was directed to the matter of the disbursement of the proceeds of sale of the Balgowlah Heights property. It was not in dispute that part of the proceeds of sale, being in an amount of almost $40,000, was used to discharge the mortgage to which the Plaintiff's home unit at Glebe was at that time subject. There was considerable dispute, however, as to the entitlement of the Plaintiff to use part of the proceeds of sale of his grandmother's residence for that purpose, and as to whether either the Plaintiff's grandmother or the Deceased herself either had known of or had approved of the use of those funds for that purpose.
15 At the present time the Plaintiff's principal asset is the home unit at 7/41 Gottenham Street, Glebe (to which a value of about $300,000 was ascribed). In his affidavit evidence he stated that he had an investment account with the Commonwealth Bank in an amount of about $9,400, and a term deposit in an amount of about $5,660. However, under cross-examination the Plaintiff said that the total of the moneys held in those two bank accounts was, variously, $9,000 or $10,000. The only other asset of the Plaintiff, apart from personal effects and household furniture and furnishings, is a 1970 Mercedes Benz sedan motor car, which is unregistered and stated by the Plaintiff to be unroadworthy (to which an estimated value of $1,000 was ascribed).
16 The Plaintiff's only stated income is the disability support pension, in an amount of $440.30 a fortnight. After child support is deducted therefrom, and an allowance made for pharmaceuticals, the Plaintiff said that he receives a net amount of $436 a fortnight. He estimates his outgoings to total $215 a week. That is, for all practical purposes, his income is entirely expended in his outgoings and normal living expenses. (I would here observe, however, that, although not the subject of evidence, it would be expected that the Plaintiff would receive some small additional income from the foregoing investment account and from the foregoing term deposit).
17 The Plaintiff gave evidence of the condition of his residence, which is in need of considerable renovation and refurbishment. Photographs showed the degree of dereliction into which the residence had fallen, and its state of decay and disrepair.
18 The Plaintiff is in need of extensive dental treatment, for which the estimated cost is about $40,000.
19 It would appear that the Plaintiff has been seen (or, possibly, treated) by a considerable number of medical practitioners. However, the evidence of only two such medical practitioners was placed before the Court. Dr. Barry Blicharski, consultant psychiatrist, expressed his diagnosis that the Plaintiff's history suggests the possibility of chronic fatigue syndrome following a viral illness in about 1993, and that the symptoms described during the five years preceding his seeing the Plaintiff "fit a diagnosis of generalised anxiety disorder". Dr. Blicharski assessed the Plaintiff's current capability of work, either part-time or full-time, as being nil. He offered the prognosis that the Plaintiff's symptoms are likely to continue at the present level on an ongoing basis.
20 Professor Andrew Lloyd, consultant infectious diseases physician, at the Prince of Wales Hospital, stated his belief that the principal diagnoses are clearly that of ischaemic heart disease, which is present in a disabling degree, and generalised anxiety disorder. He said that both these conditions specifically preclude the plausibility of a diagnosis of chronic fatigue syndrome. He said that the prognosis is poor, and that the Plaintiff's likelihood of return to functional status is essentially nil, and that he would need a combination of ongoing specialist medical care as well as specialist psychiatric care.
21 It was the evidence of the Plaintiff that essentially he was housebound, spending much of his time in bed, that he relied on occasion upon Meals on Wheels for food, that a friend did shopping for him (for which service he paid). Nevertheless, the Plaintiff said that he had travelled on foot from Glebe to the Court for the hearing of the present proceedings.
22 The Plaintiff had not seen the Deceased during the last thirteen years of her life, although he insisted that they maintained frequent and regular, and amicable, telephonic communication throughout that period.
23 Evidence was given by the Defendant concerning her financial and material circumstances.
24 The Defendant (who was born on 28 May 1955, and who is presently aged 50) had been employed at Coles from 1971 to 1979. She was apparently unemployed until 1987, when she worked for Lifeline for six months. In that year she became her mother's full-time carer. The Defendant commenced to receive a carer's pension in 1994.
25 The Defendant re-entered the workforce after her mother's death. From May 2003 the Defendant was employed as a shop assistant with W.C. Penfold, receiving a gross salary of $400 a week. However, that position came to an end in March 2004, when her employer was placed under administration. At the termination of that employment the Defendant was owed $1,600 by way of salary and annual leave. She was uncertain whether she would ever receive that amount. The Defendant has not been in employment since that time. It would appear that during the periods whilst she was not in employment the Defendant was in receipt of some form of unemployment or social security payments.
26 Apart from the assets which she has received under the terms of the will of the Deceased, the Defendant's only other assets are two bank accounts with the Commonwealth Bank, having credit balances totalling about $1,600. It was the evidence of the Defendant that the entirety of her income was expended on personal living expenses or expenses associated with the upkeep and maintenance of the Alma Street property, including municipal rates, insurance and electricity. The Defendant estimated that her weekly outgoings totalled about $502.
27 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff.
28 I have had the benefit of receiving a chronology and a written outline of submissions from Counsel for the respective parties. Those documents will be retained in the Court file.