Christie v Christie - [2016] WASC 45

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHRISTIE -v- CHRISTIE [2016] WASC 45

CORAM: MASTER SANDERSON

HEARD: 20 JANUARY 2016

DELIVERED : 18 FEBRUARY 2016

FILE NO/S: CIV 1401 of 2013

MATTER :The Estate of Ellen Mavis Christie late of Western Australia (Dec)

BETWEEN: MORRIS LESLIE CHRISTIE
Plaintiff
AND
SASHA ELLEN CHRISTIE as Executrix of the Will of ELLEN MAVIS CHRISTIE (DEC)
Defendant

Catchwords:

Family Provision Act 1972 (WA) - Claim by adult son - Defendant accepts no adequate provision made by deceased for plaintiff - Claim of disentitling conduct

Legislation:

Family Provision Act 1972 (WA)

Result:

Claim dismissed

Category: A

Representation:

Counsel:

Plaintiff: Mr M Thompson
Defendant: Mr A P Hershowitz

Solicitors:

Plaintiff: Gerard Malouf & Partners
Defendant: Holborn Lenhoff Massey

Case(s) referred to in judgment(s):

Bondelmonte v Blanckensee [1989] WAR 305
Murphy v Stewart [2004] NSWSC 569

MASTER SANDERSON: This is the plaintiff's application for provision under the terms of the Family Provision Act 1972 (WA) (the Act). The plaintiff is the son of the deceased. There is no dispute as to his eligibility to make a claim for provision as to the deceased's estate. The defendant is the executor of the will of Ellen Mavis Christie (the deceased) and, pursuant to the deceased's will, inherited the entire estate. There was some dispute between the parties as to the precise value of the estate but each agreed it was in the region of $900,000. The main asset of the estate is the deceased's former home in Woodlands. Otherwise there were funds in a number of bank accounts which have been used to pay the expenses of the estate and maintain the Woodlands property. There was a quantity of furniture the value of which was in dispute.
This case raises squarely the so‑called 'disentitling conduct' provision of the Act found in s 6(3). That section reads as follows:
The Court may attach such conditions to the order as it thinks fit, or may refuse to make an order in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient.
At the commencement of the hearing counsel for the defendant advised the defendant accepted the plaintiff satisfied the first limb of the test in Bondelmonte v Blanckensee [1989] WAR 305. That is to say, the defendant accepted the will of the deceased did not make adequate provision from the estate for the proper maintenance, support, education or advancement in life of the plaintiff. The defendant accepted the plaintiff was destitute, had no assets and his future prospects were bleak. The only issue between the parties was whether or not the plaintiff had engaged in disentitling conduct such as to justify the deceased omitting him from her will. If I found s 6(3) did not apply then some provision would have to be made for the plaintiff.
In support of his application the plaintiff filed four affidavits. He is the only survivor of the deceased's five children. He was born on 29 August 1947 and is presently 68 years of age. The defendant is the daughter of his deceased sister Toni.
In his first affidavit the plaintiff details his early life and recounts his career in the workforce. He says after leaving school he resided at home until the age of 19 when he obtained employment in the north‑west. He returned to Perth in 1973 and resumed living with his parents (his father was at that stage still alive). After a time he says he noticed his mother's personality changing. He says she became 'difficult to live with and would often talk down to me'. The relationship continued to deteriorate and somewhere between 1973 and 1977 he moved out of home. His father died in 1977 and he moved back in with his mother. The plaintiff says his mother did not notify him of his father's death or provide any details of the funeral. Although he was upset he says he was never provided with an explanation as to why his father's passing was not relayed to him.
He remained living with his mother until 1987 when he moved out. The plaintiff says his mother became very distant from him and accused him of a number of unspecified things. The plaintiff says he could not understand why his mother was cold towards him and would have nothing to do with him. When he moved out of his mother's home he went to live in New South Wales and has remained there ever since.
The evidence suggests the plaintiff thereafter had nothing to do with his mother. The picture he paints is of a loving son always keen to have a close relationship with his mother who was pushed away without any explanation.
On behalf of the defendant a number of affidavits were filed which alleged the plaintiff was violent towards the deceased. The plaintiff dealt with these affidavits in his affidavit sworn 16 April 2014. He denies he was violent towards his mother and maintains it was his mother who was 'stressed and emotionally unpredictable'. He says he did his best to maintain contact with his mother. He wrote to her and called her on occasions. Nothing made any difference. Despite his best efforts he was rejected without justification.
The plaintiff was cross‑examined on his affidavits and it was put to him he was in fact a violent person who had indeed abused the deceased. The plaintiff denied each and every allegation put to him. His evidence was to the effect that any witness who gave evidence that he had abused his mother was simply mistaken.
I formed a very unfavourable view of the plaintiff as a witness. His manner in the witness box suggested hostility. He did not engage in eye contact with defence counsel and was evasive in answering perfectly reasonable questions put to him. Furthermore, he had in his affidavit of 16 April 2014 made a statement which was untrue. Paragraph 11 of that affidavit reads as follows:
I am not a violent person. I have never come to the notice of the police in respect of any act of violence either in New South Wales, Western Australia or elsewhere. I have no tattoos or other body art. I regard myself as a very giving person.
In fact the evidence showed the plaintiff had been charged with a number of offences in New South Wales and convicted of at least one offence. He had been the subject of a violence restraining order. There can be no doubt in his affidavit the plaintiff was untruthful with the intention of misleading the court and advancing his claim. In my view that evidence completely undermined his credibility.
The plaintiff also relied on an affidavit of Kristy Ann Huxtable sworn 26 May 2014. Mrs Huxtable is the granddaughter of the deceased. In her affidavit she recounts her relationship with the plaintiff detailing when they first met and the contact they had over a number of years. Three important features emerged from Mrs Huxtable's evidence. First, she had never seen any evidence of violent behaviour on the part of the plaintiff. Rather, she found him to be a placid and somewhat subdued individual. Second, she disclosed the plaintiff had bipolar disorder. In the course of cross‑examination she admitted this condition from time to time affected the plaintiff's behaviour. It would appear if the plaintiff stopped taking medication he could become difficult. But still Mrs Huxtable had never seen any evidence to suggest the plaintiff was a violent individual.
Third, Mrs Huxtable had over the years no contact with her grandmother. She was not aware of why her mother and her grandmother were estranged. Mrs Huxtable had made attempts to contact her grandmother but was rebuffed. She did not know why. So far as she was concerned there was nothing she had done which could in any way have affected her relationship with her grandmother.
Mrs Huxtable struck me as entirely honest and reliable. In cross‑examination she gave carefully considered answers to questions asked of her. When the issue of the bipolar disorder was raised she acknowledged the plaintiff did from time to time suffer different moods. But she was unshaken in her view that the plaintiff was not a violent individual.
The defendant swore four affidavits in opposition to the plaintiff's application. The defendant was born on 9 April 1981. From the time she was born until about the age of 17 the defendant resided with her mother and grandmother in the Woodlands property. For part of that time the plaintiff was also resident in the property. The defendant says she recalls hearing arguments between the deceased and the plaintiff. She says these arguments occurred frequently. Importantly the defendant says she never actually saw any violence perpetrated against the deceased by the plaintiff. Rather, when an argument erupted the defendant would turn up her radio to drown out the noise.
The defendant says in 2011 she had a discussion with the deceased the purpose of which was to pinpoint why the deceased was estranged from the plaintiff. This evidence is of crucial importance and I will quote it in full:
In about late 2011 I had an argument with my grandma regarding why my grandma stopped communicating with the plaintiff and why he was not allowed in the house.
After considerable argument and tears by both of us, my grandma eventually told me what had occurred between the plaintiff and her.
My grandma told me that the plaintiff had been very abusive to her and my mother on many occasions since he was a teenager.
My grandma told me of one incident where he was fighting and pushing my grandma, my mother said something and went to intervene and the plaintiff pushed her off the stool in the kitchen.
After that my grandma was afraid that the plaintiff was going to start hitting me.
She also told me of an incident where the plaintiff grabbed her around the throat and pushed her against the wall with a lit cigarette lighter held to her head threatening to set her on fire.
I asked her why she didn't tell someone or go and get help and she told me that back in her day you did not speak about these types of things. She told me she was embarrassed by the plaintiff's behaviour and ashamed of what people would say about how she had brought the plaintiff up.
My grandma had a very strong will and refused to admit to anyone that she was being hurt by someone else. She liked to be self reliant. She never wanted to go into a home or allow anyone to pay her bills as she would often tell me that she could do things herself and would try and stop me from helping her. She mentioned on a number of occasions that she did not want to go into a home as she could take care of herself.
My grandma said that my grandpa was not well at the time and was too weak to help her.
My grandma said that when the plaintiff was younger he would get in trouble at school and with the police. My grandma said that the plaintiff was also involved with drugs.
The plaintiff's behaviour put a lot of stress on my grandma. She found it difficult to talk to me about what had happened between her and the plaintiff [23] ‑ [33].
Counsel for the plaintiff objected to this and other evidence in the same vein. He maintained it was inadmissible hearsay and ought be struck out. After hearing argument on this issue I decided the evidence was admissible. I indicated in my reasons I would explain why I had come to that conclusion. What follows are the reasons.
Clearly the evidence complained of is hearsay. Under the rules of evidence it would not be admissible to prove the truth of what was said by the deceased. This position is affected by s 21A of the Act. Relevantly that section read as follows:
21A.Evidentiary matters
(1)In this section -
statement includes any representation of fact whether or not in writing.
(2)In any proceedings under this Act, evidence of a statement made by a deceased person is, subject to this section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible.
(3)Subject to subsection (4) and unless the Court otherwise orders, where a statement was made by a deceased person during the person's lifetime otherwise than in a document, no evidence other than direct testimony (including oral evidence, evidence by affidavit and evidence taken before a commissioner or other person authorised to receive evidence for the purpose of the proceedings) by a person who heard or otherwise perceived the statement being made is admissible for the purpose of proving it.
Counsel for the plaintiff maintained this section did not render the evidence admissible. He pointed to the fact what was required under s 21A(3) was 'direct testimony'. He submitted that required the evidence to be direct quotes of what was actually said rather than a general summary of the discussion as appears in the quoted paragraphs.
In my view that interpretation places far too narrow a construction on the section. What is contained in the quoted paragraphs is direct testimony of what the witness says was told to her by the deceased. It may be the case the weight to be attached to that evidence would be greater if the witness quoted directly what was said by the deceased. But the discussion between the defendant and her grandmother took place some three years before the affidavit was sworn. What the defendant has done is recount as clearly and succinctly as possible the nature of the discussion which took place. In my view the evidence is admissible and I ruled accordingly.
The defendant was a very impressive witness. She gave her evidence in a direct and straightforward manner and was clearly at pains to answer every question put to her as fully and honestly as possible. She did not exaggerate; she did not evade. It was put to her she had not been open and frank with the court because she had not disclosed in her affidavit evidence the extent of her partner's superannuation. In my view there was nothing in that submission. At best it was a peripheral issue and the defendant made it clear she did not include details of that superannuation because she did not think it relevant to do so. I accept her evidence on that question.
The defendant relied on the evidence of three further witnesses. The first of these witnesses was Helen Dorothy McNamara. Her affidavit is sworn 19 November 2013. Mrs McNamara is just over 80. She was the next door neighbour of the deceased from about 1964 onwards. It seems clear Mrs McNamara and the deceased had a solid friendship. Mrs McNamara only recounts one incident where she was told by the deceased that she (the deceased) had been assaulted by the plaintiff. Mrs McNamara does not specify the date when the incident occurred. The deceased did describe in some detail the events which had taken place. The main target of the alleged violence appears to have been the deceased's daughter Toni. The deceased was collateral damage. There is nothing in Mrs McNamara's evidence to suggest a long history of violence on the part of the plaintiff towards the deceased.
Mrs McNamara was not called for cross‑examination. Her affidavit then must be taken at face value. All that can really be said is she recounts one incident where the plaintiff was violent towards the deceased. There is a suggestion of a continuing course of conduct but the evidence is not sufficient to draw any conclusion. While accepting the evidence does demonstrate one incident when the plaintiff was violent towards the deceased it does not to any extent support the allegations made by the defendant as to disentitling conduct.
The second witness was Ms Adrienne Mary McNamara. Ms McNamara is the daughter of Mrs Helen McNamara and she did for many years live next to the deceased. It was apparent from Ms McNamara's affidavit and her answers to questions in cross‑examination that she had a close relationship with the deceased. For many years they appear to have seen one another on an almost daily basis. They attended family gatherings together and Ms McNamara's children could often be found after school in the deceased's home. It was clear Ms McNamara had the most detailed insights into the deceased's life.
Ms McNamara recounts how as a child and in her teenage years she heard the plaintiff yelling abuse at the deceased. She said it was almost a daily occurrence. In her affidavit she gives some examples of the abusive language she says the plaintiff used towards the deceased. Ms McNamara recounts seeing bruises on the deceased which the deceased told her were the result of an assault by the plaintiff.
Ms McNamara gives direct evidence of what she says was the violence of the plaintiff against the deceased. The most important of this evidence is found in pars 32 ‑ 34 of her affidavit. I will quote those paragraphs in full:
Over the years of our friendship the Deceased spoke to me a number of times about [the plaintiff's] behaviour and how she was fearful of [the plaintiff].
The Deceased told me that [the plaintiff] would sometimes slam her against the wall in the hallway or against a doorframe. He would also hold her in a headlock, push her into walls and hit her. The Deceased told me of one occasion where [the plaintiff] grabbed her arm and put it behind her back and then rammed her head against the wall.
The Deceased also told me that [the plaintiff] knew where to hit her and how to hit her so no one would know. The Deceased told me that he would hit her with a telephone book because that way she wouldn't bruise as easily.
During the course of cross‑examination Ms McNamara was asked why, if the violence by the plaintiff against the deceased was so extreme and continued for such a period of time, she did not report the matter to the police. It was a very good question. Her response was to say at the time the events occurred reporting such incidents to the police was not reasonably to be expected. She said the deceased indicated matters should be kept within the family and not referred to some outside agency. That struck me as a perfectly reasonable explanation as to why when violence was said to have been perpetrated over a long period of time no reference was made to the authorities. It is perhaps indicative of how times have changed.
Ms McNamara was a very impressive witness. Her evidence was clear and straightforward and she answered questions in cross‑examination with candour. I accept her evidence unreservedly.
The final witness called by the defendant was Gabrielle Therese Crofts. Mrs Crofts is the elder sister of Ms McNamara. Mrs Crofts has a number of qualifications and has worked for a number of years in the area of domestic violence. She is also a psychic detective. Her affidavit evidence was consistent with the evidence of her sister and her mother. However she was not a satisfactory witness. She had a great deal of difficulty offering concise answers to simple and straightforward questions. She came across as a warrior against domestic violence and I was not satisfied she brought an open and fair mind to the task of giving evidence. That is not to say she was dishonest or that she in any way attempted to mislead the court. It was simply I did not find her a helpful witness. In the end I determined I would not take her evidence into account in determining this application. Given her psychic powers Mrs Crofts probably anticipated this outcome.
Taking into account all of the evidence I am satisfied on the balance of probabilities the plaintiff did over a period of many years perpetrate violence against his mother. He was abusive and physically aggressive. This led gradually to his mother excluding him from her life and eventually cutting off all contact with him. I do not accept the plaintiff's evidence he was a loving son who was excluded from his mother's affections without reason. Quite the reverse. He was excluded from his mother's life because he treated her badly.

Having said that I do accept the deceased was a difficult person. She excluded her daughter Myrna, Mrs Huxtable's mother, and Mrs Huxtable from her life without any reasonable explanation. She resisted all attempts by Mrs Huxtable to reconnect. She was also difficult in other ways. In her evidence the defendant recounted how when she had invited the plaintiff to her mother's funeral the deceased took exception to the invitation being proffered and did not attend her daughter's funeral. She then effectively excluded the defendant for the next two months. It may well be the case the picture of the warm cuddly grandmother painted by Ms McNamara is too perfect. But nonetheless none of that alters the fact I am satisfied the deceased was assaulted and abused by the plaintiff over many years and she excluded him from her life for understandable reasons.
During the course of the hearing a good deal of attention was given to the plaintiff's bipolar disorder. By the time the case concluded it could be fairly said the plaintiff's case was put on two grounds. First, he was a loving son who had been excluded from his mother's estate for no good reason when there had been no disentitling conduct. In the alternative if the plaintiff had been violent towards the deceased the incidents of that violence was limited and could be explained by the plaintiff's unstable mental health.
If indeed the second of those two alternatives was put it must be rejected. There is nothing in the evidence of the plaintiff himself which deals with his mental health. He never mentions he suffers from bipolar disorder. Despite having access to the affidavits relied on by the defendant he makes no real attempt to justify the claims of violence. He certainly does not suggest any violence he perpetrated against the deceased was due to some mental illness. Furthermore, even if it be accepted the plaintiff suffers from bipolar disorder, there was no evidence as to what the consequences of that are. For instance there was no expert medical evidence to the effect persons who suffer from bipolar disorder are prone to fits of violence which they cannot control. Without such evidence any suggestion violent behaviour on the part of the plaintiff could be explained by his medical condition must be rejected.
There are remarkably few authorities which deal with disentitling conduct. Such cases as do exist seem mainly to deal with the consequences of estrangement. In Murphy v Stewart [2004] NSWSC 569, Palmer J concluded the conduct of the plaintiff, a former husband of the deceased, was such to warrant his claim being dismissed. His Honour summarised the case and his reasons for decision as follows:
In the present case, I take into account the following considerations. Throughout the whole of their cohabitation, the Plaintiff was violently abusive of the Deceased, physically and emotionally. The Plaintiff deliberately lied to the Court about the quality of the marital relationship. After cohabitation ceased, the Plaintiff harassed the Deceased and abused her in public. The Plaintiff made no contribution at all to the assets of the Deceased and very little contribution to their daily living expenses during cohabitation. I am not satisfied that the Plaintiff's present lack of assets and means generally is the result of inability to work in the ten years since cohabitation ceased, rather than the result of a disinclination to work.
In these circumstances, I am of the view that the Plaintiff's conduct during and after the relationship with the Deceased would generally be regarded, according to current attitudes and expectations in the community, as disqualifying him as a natural object of testamentary recognition by the Deceased. Accordingly, in my opinion, there are no factors which warrant the making of this application for provision out of the Deceased's estate. In accordance with s 9(1) of the Act, therefore, I cannot proceed further to determine the application and it must be dismissed [43] ‑ [44].
In this case I am satisfied throughout the time the plaintiff resided with the deceased he was physically violent towards her and frequently abused her. I am not satisfied he made any real attempt to reconnect with the deceased after he moved out of home in 1987. There is no evidence after he was diagnosed with bipolar disorder he attempted to contact his mother and explain his earlier actions. He made no contribution to the assets of the estate. While I accept he is in need that need appears to have been occasioned by his own actions. It certainly was not something which was contributed to by the deceased.
As Palmer J notes the question of whether the actions of the plaintiff was such as to disentitle him from making a claim must be judged according to current attitudes and expectations in the community. Section 6(3) does not actually specify a time when the decision is to be made. In my view it has to take into account the history of the relationship between the claimant and the deceased. It is the broad scope of that relationship which I have looked at in reaching my conclusion.
Violence against women is never acceptable. It is at odds with a basic tenant of civilised society. The criminal law in recent times has recognised the unacceptable nature of such conduct and imposed harsh penalties. A person who is violent towards a testator cannot simply expect to be provided for in a will or if not provided for to come before the court and receive a proportion of the estate. The acts of violence reap their own reward. That is exactly what has happened in this case.
Finally, I should just say something about matters I have not taken into account. First, I have not looked at this matter from the point of view of the so‑called wise and just testator. The requirement of the section is for the court to make a determination. There is no question of adopting some attitude which might be ascribed to the deceased. Second, I have not taken into account the financial position of the defendant. There is no suggestion in the section this is a relevant consideration.
For these reasons I would dismiss the plaintiff's claim pursuant to s 6(3) of the Act. I will hear the parties as to costs.