Carter v Stapleton
[2002] NSWSC 695
•9 August 2002
CITATION: Carter v Stapleton [2002] NSWSC 695 FILE NUMBER(S): SC 4531/00 HEARING DATE(S): 31/07/02 JUDGMENT DATE: 9 August 2002 PARTIES :
Deborah Lyndon Carter (Plaintiff)
James Stapleton (Defendant)JUDGMENT OF: Acting Master Berecry at 1
COUNSEL : MS Willmott (Plaintiff)
PT Taylor (Defendant)SOLICITORS: Eric Butler Solicitors ( Plaintiff)
Taylor & Whitty Solicitors (Defendant)CATCHWORDS: dependency - member of same household - whether de facto relationship had existed - nature of relationship post de facto relationship - s 32 family Provision Act - admissibility of oral statements made by deceased LEGISLATION CITED: Family Provision Act 1982 (NSW)
Property (Relationships) Act (1984) NSWCASES CITED: Roy v Sturgeon (1986) 11 NSWLR 454
Markulin v Drew (1993) DFC 95-40
Re Fulop (deceased) (1987) 8 NSWLR 679DECISION: 1.Provision is to be made out of the deceased's estate for the plaintiff in the sum of $40,000; 2.Defendant to pay plaintiff's costs on a party party basis; 3.Defendant's costs to be paid out of the estate on an indemnity basis.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
Acting Master Berecry
9 August 2002
4531/00 Deborah Lyndon Carter v James Stapleton
JUDGMENT
1 Master: On 8 November 2000, Deborah Lyndon Carter (“the plaintiff”) commenced proceedings seeking an order pursuant to s 7 of the Family Provision Act 1982 (NSW) (“the Act”), for provision to be made for her maintenance, education and advancement in life out of the estate of the late Peta (also known as Peter) John Stapleton (“the deceased”). The deceased died between 2 and 3 August 1999, therefore the application is brought within time. The deceased did not make a will, and letters of administration were granted to the defendants on 7 March 2001. The estate consisted of realty at Spring Hill and two credit union accounts. For the purposes of probate, the value of the estate was $148,039.81. The current value of the estate is approximately $181,000.00.
2 The plaintiff brings the application as an eligible person pursuant to s6 (1)(d) of the Act. The defendant’s are the brothers of the deceased and they take pursuant to the intestacy provisions.
History
3 The plaintiff is 52 years of age. She currently resides with her mother and has done so for the past 15 years. She has never married. She met the deceased in October 1974. About two months later she commenced living with the deceased and his flatmate at Rose Bay. She and the deceased shared one bedroom and commenced a sexual relationship at about that time. Her evidence is that although she was working, she was short of money at the time the relationship commenced. For the first two or three months she did not pay any rent, however she helped towards the costs of food and electricity. Both parties did domestic chores such as washing and ironing. They socialised together, and on holidays shared expenses with the exception of petrol, which was paid for by the deceased.
4 In March 1976, they moved to Perth where they found employment. They continued to reside in Perth until 1977, when they embarked on an overseas trip. This trip involved an overland journey through South East Asia, India, Nepal and then on to London. During the time in India, they stayed with the deceased’s mother. The plaintiff’s evidence is that during that period, she relied on the deceased for company and support and in return provided companionship for him. He also cared for her when they were in Thailand and she became ill.
5 They arrived in London in March 1978 and continued to live as a couple. Both obtained employment and they shared all living expenses. In June 1978, the plaintiff returned to Australia for her fathers wedding. Subsequently, the deceased returned to Australia and immediately found employment. Once again, the plaintiff was unemployed and the defendant paid her rent and food.
6 From July 1978 they resumed cohabitation, however by 1981 the plaintiff found that she could no longer live with the deceased because of his difficulty in controlling his alcohol abuse.
7 Thereafter, the parties lived separately and apart. However they continued to see each other at least twice a week. These meetings involved going to dinner or the movies, or long walks or meeting for coffee. They continued to send each other birthday, Christmas and Valentines Day Cards.
8 Between 1984 and 1989, contact between the two continued. The plaintiff’s evidence is that in 1984 she took steps to have him consult a psychiatrist and to attend meetings of Alcoholics Anonymous to try and overcome his drinking problem. These attempts were not successful.
9 In 1984, they went on a Murray River Cruise. Once again, she was unable to afford to pay for the holiday, and he volunteered to pay for both of them.
10 In 1985, he obtained a job as a psychiatric nurse at Orange. He moved into hospital accommodation and remained in regular contact with the plaintiff. The plaintiff’s evidence is that they spoke frequently by phone and sent letters. The deceased stayed with the plaintiff when he was in Sydney. She travelled to Orange two or three times a year to be with him. These stays, however, were of relatively short duration – between one to five days. Her evidence is that when she spent time with him in Orange, their time was taken up by each telling the other what they had been doing since the last time they were together.
11 In 1986, they went on holidays to Myall Lakes. Once again, the plaintiff was unable to afford the holiday, and once again the deceased paid all expenses for the holiday.
12 In 1987, the deceased gave the plaintiff his car because he had lost his drivers license. She had use of the car for four months in 1987, from November 1988 to February 1989, and then from July 1989 to 1990. During the time that she had possession of the car, the deceased continued to pay for registration, insurance and service. The plaintiff paid small repair bills when they arose. In May 1989, the deceased offered to pay for a Club Med holiday in Noumea for the plaintiff. She took up this offer, which cost the deceased approximately $2,500. The deceased did not go on the holiday.
13 During 1989, the deceased asked the plaintiff if she would go to India with him, with a view to sponsoring a child. In September of 1990, they travelled to India with the deceased’s two brothers and their wives. The deceased paid for the plaintiff’s airfare and for a lot of their travelling expenses. Once again, she had insufficient funds.
14 There were times when the deceased and the plaintiff drove to Melbourne for a number of family functions. It would appear that there were at least two occasions when they attended the weddings of two of the deceased’s nieces. Whilst they were in Melbourne they stayed with one of the deceased’s brothers. Between 1990 and 1995, they both continued the pattern of spending time with each other either in Orange or in Sydney. It would appear, however, that these occasions were perhaps no more than three times a year, and once again, of short duration.
15 From 1996 until the death of the deceased, neither he nor the plaintiff attended each other’s residence. The plaintiff’s evidence was that in 1995 and 1996, there were three visits, but then the visits for various reasons ceased. However, during this period, although they no longer visited each other, they continued to correspond and telephone each other. The plaintiff attended the deceased’s funeral.
16 The deceased’s death came as a shock to the plaintiff, however there was no evidence to indicate whether it was a sudden death, or whether the deceased had died as a result of illness. It is therefore difficult to determine whether the deceased would have contacted the plaintiff about any illness that he may have had.
17 After the parties separated, the deceased expressed a wish to the plaintiff that they remain good friends. It is clear from the evidence that, at the very least, throughout the rest of his life they remained good friends.
18 There is no suggestion that there was ever and attempt to reconcile. Indeed, by the early 1990’s, both were leading completely independent lives. Their contact seemed to be more by way of social support from time to time, and to have a companion when on holidays. Indeed, there was evidence that the plaintiff, over a period of ten years or so, was keeping company with at least two other men. Reference is made to these people in some of the correspondence from the deceased to the plaintiff, and the plaintiff in cross-examination admitted that so far as the person Stefan was concerned they were “sort of a couple”.
Eligibility
19 A person only has standing to bring proceedings under the Act if he or she comes within the definition of eligible person contained in s6 (1)(a) - (d). The only category that the plaintiff could come within is subsection (d). It was conceded on behalf of the plaintiff that if there were a finding that the deceased and the plaintiff lived in a de facto relationship, that relationship existed between late 1974 and 1981. The defendant does not concede that the parties were in a de facto relationship.
20 Under (d), for a plaintiff to establish his or her standing to bring proceedings he or she must establish that at any particular time he or she was wholly or partly dependent on the deceased and was a member of a household of which the deceased person was a member. It is only necessary to establish that there was some time when the plaintiff was a member of the same household of the deceased. It is not a requirement that that must be established as at the date of death.
21 Section (4) of the Property (Relationships) Act (1984) NSW sets out matters that may be relevant to circumstances that determine whether a de facto relationship existed. S (4)(2) lists a number of factors. Those matters give statutory authority to what Powell J, in Roy v Sturgeon (1986) 11 NSWLR 454, said were characteristics of a de facto relationship. Neither His Honour, nor the Property (Relationships) Act, purport to limit the circumstances that may constitute a de facto relationship. Indeed s (4)(3) makes that plain. Therefore, in determining whether or not at any particular time a de facto relationship existed, the Court may have regard to any one or more, or any combination of, the matters set out in s (4) (2), or may not necessarily take into account any of those matters.
22 It is clear that the relationship of the plaintiff and the deceased did not have all of the matters contemplated in s (4) (2). However, on the plaintiff’s evidence, which in my view was not shaken, there is reason to believe that between 1974 and 1981, the parties were in a de facto relationship. The plaintiff’s evidence is that there was a sexual relationship during that period. The relationship itself lasted seven years, the only break in that relationship was not a termination of the relationship, but merely an absence from the relationship for a short period of time whilst the plaintiff returned to Australia to attend her father’s marriage. A short time thereafter, the deceased returned to Australia, and later on that year they resumed cohabitation.
23 During that period of time, each had a financial dependence on the other. There is no evidence that they intermingled their funds, but on the plaintiff’s evidence they each made some contribution towards living expenses and travel expenses. It would appear that the majority of the expenses were, in fact, met by the deceased. It would also appear on the plaintiff’s evidence that during this time there was a mutual commitment to a shared life. They resided not only in Sydney and Perth, but they took an extended holiday together. They visited India and Nepal and then set up house together in London. There is evidence that each provided the other with companionship and support, and that the deceased cared for the plaintiff when she became ill in Thailand. It would appear that people who knew the couple in Australia and in England would have regarded them as a couple. The plaintiff has given reasons for why, whilst in India, they maintained an outward appearance of “just friends”. The reason she has given for that is one that I accept.
24 In my opinion, the plaintiff has established that during those years she lived in a de facto relationship with the deceased. Therefore, does that bring the plaintiff within the definition of s6 (1)(d) of the Act? In my view it clearly does. The evidence is that during that period, the plaintiff was partly dependant on the deceased. Not only was there financial dependency, but also dependency of a non-financial nature. The evidence of the plaintiff is that once they broke up, she found it very difficult to adjust to life without him. That to me indicates that during the relationship she had an emotional dependency on the deceased. It is clear from her evidence that there was partial dependency because of the way in which their financial affairs were structured and the contributions made by the deceased to the plaintiff. It is also clear to me that the deceased and the plaintiff were members of the same household.
25 During this period, they lived under the one roof, had a sexual relationship, and each contributed towards the payment of food and electricity. Both did the domestic chores. They went on holidays together and conducted themselves as a family unit. In Markulin v Drew (1993) DFC 95-40, Young J said
- “ Needham J in Moloney v Goodwin (unreported), 1 August 1989, was clearly of the view that before one could have a household, one would have to have a quasi family unit. Whilst a mere boarder would not be “of the household”, a boarder who supported the deceased like a brother or son might have done, did qualify …one can be a member of a household for the purpose of the Family Provision Act, provided that there is in fact a household, and that the plaintiff had some intimate connection with the household or some other member of the household…”
26 In this case, the evidence is that from the time the plaintiff moved in with the deceased they conducted themselves as a family unit by being de facto partners.
27 Therefore, I am of the view that the plaintiff satisfies the requirements of s 6(1)(d) to establish that she is an eligible person and entitled to bring proceedings.
Section 9 of the Family Provision Act (1982) NSW
28 In the case of an eligible person as defined pursuant to s6 (1)(d), there must be factors that warrant the making of the application. The test to be applied is that stated by McClellan J as he then was, in Re Fulop (deceased) (1987) 8 NSWLR 679 at 681:
- “The factors referred to…are factors which, when added to facts which render the applicant an eligible person, give him or her the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased.
29 In the present case, the parties lived together between 1974 and 1981. In my view, that relationship was a de facto relationship. The relationship ended when the deceased could not overcome his alcohol addiction. The parties remained friends thereafter, regularly wrote to one another, and sent birthday, Valentine’s Day and Christmas cards to each other. Additionally, they took some holidays together in the early to mid eighties, which were paid for by the deceased, and the deceased in the late eighties paid for the plaintiff to go on holiday by herself. The deceased also provided the plaintiff with his car for two periods, and paid for the registration and the servicing of that car during that time. The deceased moved to Orange in the mid eighties, and by the mid nineties had purchased land and was constructing a dwelling on that land.
30 There is evidence, as I have already recounted, of the plaintiff and the defendant visiting each other and travelling to Melbourne to meet his family. These episodes took place a couple of times a year up until the end of 1995. Since then, it would appear that there were perhaps three occasions when either the deceased travelled to Sydney or the plaintiff travelled to Orange. Therefore, since 1996 until the death of the deceased there was very little face to face contact between the plaintiff and the deceased. They continued to correspond and to make telephone calls to one another.
31 Exhibit A is a bundle of correspondence and cards. The documents contained in that bundle cover the period that they had known each other. By and large, the letters written over the last ten years do not exhibit any close emotional attachment other than that of a good friendship. They are a combination of a travel log and newsy information about things in general in the Orange district. The most recent letter is dated 10 June 1999. The letter encloses some newspaper clippings and is just a very short newsy letter about what the deceased had been doing. It was not long after this that the deceased died. Other letters are in the same vein, and tend to discuss, amongst other things, the weather.
32 The affidavit of William Geoffrey Nixon sworn on 24 May 2002 refers to conversations the deponent is said to have had with the deceased where he is reported to have said that the plaintiff meant everything to him. Mr Nixon’s evidence was that two or three years before the deceased died, he retired. He told Mr Nixon that he wanted to build a house and said words to the effect:
- Peter: “I want to build a house to live in and Deborah will be my beneficiary “
33 The deceased had an enlarged photograph of the plaintiff on his television set, and according to Mr Nixon continually spoke of the plaintiff after the house was completed. In his evidence he stated that the deceased was lonely and did not have any close female friends. However, according to Mr Nixon, over the years, the deceased said to him:
- Peter:” Deborah is a top girl, she means everything to me “
Admissibility of StatementsHe often telephoned the plaintiff when Mr Nixon was with him and used terms of endearment when speaking with her. Mr Nixon conceded that the deceased had affections for his family and regularly talked about his niece.
34 Section 32 of the Act allows the use of oral statements made by the deceased which the deceased would have been able to give (2); it will only be admitted by direct testimony by the person who heard it (3); the court may draw reasonable inferences from the circumstances in which the statement was made (7), and in giving weight to the statement, the Court shall have regard to all the circumstances from which any inference can reasonably be drawn (8).
35 Mr Nixon’s evidence of the statements made by the deceased was not shaken. In my opinion it is reasonable to draw the inference that, in weighing all circumstances, the deceased intended that the plaintiff should receive a benefit from his estate.
36 But for Mr Nixon’s evidence, it could be said that from 1981 until the deceased’s death, the deceased and the plaintiff were no more than good friends. This was especially so from 1990 onwards. Whilst the deceased may have made contributions of a financial nature to the plaintiff, she did not reciprocate.
37 There is no evidence that during the last ten years of the deceased’s life that either at any stage were a carer for the other. There were no children of the relationship. There was no joint acquisition of property. There was no opportunity for either to make a contribution as a homemaker. However, in my opinion the deceased wished to make some provision for the plaintiff.
What provision should be made?
38 The plaintiff’s income is $12,896 per annum. She is unemployed and most of her income is in the form of social security allowances. She lives with her mother. Her annual expenses are $11,156. Her assets and liabilities are as follows:
Assets
| Description | Amount |
| Amount standing to credit in Perpetual Cash Management Fund s at closing balance 15 July 2002 | $5,00.00 |
| Amount standing to credit in Perpetual Industrial Share Fund as at 17 July 2002 | $17,971.00 |
| Furniture market value | $2,000.00 |
| Personal effects | $1,000.00 |
| Total | $25,971.80 |
Debts
| Description | Amount |
| Commonwealth Bank MasterCard | $102.62 |
| Rent arrears ($100per/week for the period 30 June 2000 – 31 July 2002) | $10,400.00 |
| Total | $10,502.00 |
39 The plaintiff seeks provision out of the estate for education (to train as a reflexology practitioner), to set up a business using the skills she hopes to acquire through training, to purchase a motor vehicle, to acquire some furniture and clothes, to repay rent owed to her mother and to purchase new reading glasses.
40 The plaintiff’s needs amount to $50,000. The estate, before costs are deducted, is approximately $185,000. In my opinion, provisions should be made out of the estate to enable the plaintiff to retrain and to establish a business. Once in full time employment, she can repay the debt to her mother from her income. Therefore, I make the following orders:
1. Provision is to be made out of the deceased’s estate for the plaintiff in the sum of $40,000.
2. Defendant to pay plaintiff’s costs on a party party basis
3. Defendant’s costs to be paid out of the estate on an indemnity basis.
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