Corbett v Parbery

[2009] NSWSC 953

CITATION:	Corbett v Parbery [2009] NSWSC 953
HEARING DATE(S):	6 and 7 September 2009
JUDGMENT DATE :	11 September 2009
JURISDICTION:	Equity
JUDGMENT OF:	Windeyer AJ
DECISION:	Claims dismissed.
CATCHWORDS:	SUCCESSION – Family Provison – Eligible persons – Claims of grandchildren and mother of those grandchildren – Mother of grandchildren living with them for short period in home of deceased – Whether grandchildren dependant on deceased – Held not dependant – Father of grandchildren and their mother in sporadic relationship – Mother living in deceased’s home for two periods – Whether member of household – Whether dependant on deceased – Father of grandchildren found guilty of murdering his sister – Sister beneficiary under will whose interest passed to the brother who committed the murder – Bearing of this claim of mother of grandchildren – Whether in each case there are factors warranting an application – Held no such factors – Claims dismissed.
LEGISLATION CITED:	Family Provision Act 1982 ss 9(1), 33(2) Child Support (Assessment) Act 1989 (Cth) s 123
CATEGORY:	Principal judgment
CASES CITED:	re Fulop (1987) 8 NSWLR 679 Singer v Berghouse (1994) 181 CLR 201 Vanvalen v Neaves; Gilroy v Neaves [2005] NSWSC 593
PARTIES:	4362/08 Jennifer Robin Corbett (P) Peter Richard Parbery (D) 5149/08 Tanya Joanne Corbett as tutor for Teena Robin Ide and Kimberley Rose Ide (Ps) Peter Richard Parbery (D) Estate Mervyn John Ide
FILE NUMBER(S):	SC 4362/08; 5149/08
COUNSEL:	G A Rich (Ps) M A Boulton (D)
SOLICITORS:	Lee Sames Egan (Ps) McNamara James O’Connor (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER AJ

FRIDAY, 11 SEPTEMBER 2009

4362/08 JENNIFER ROBIN CORBETT v PETER RICHARD PARBERY
5149/08 TANYA JOANNE CORBETT bht JENNIFER ROBIN CORBETT v PETER RICHARD PARBERY

JUDGMENT

1 HIS HONOUR:

OUTLINE

2 These two actions for orders under the Family Provision Act 1982 (“the Act”) were heard together. In one the plaintiff, who is the mother of the plaintiffs in the other action, claims provision as a person who was at a time partly dependant upon Mervyn John Ide (Senior) (“the deceased”) and who was for a time a member of the same household as the deceased. In the other, the plaintiffs are grandchildren of the deceased claiming to have been partly dependant upon him at a particular time.

3 Under the will of the deceased and the events which have occurred the whole estate passes to one of his children, Mervyn John Ide Junior. The peculiar circumstance of this case is that Mervyn John Ide Junior murdered his sister and is serving a sentence of 15 years imprisonment with a non parole period of 12 years. He will be eligible for parole on 17 May 2013.

THE FACTS

4 Mervyn John Ide Senior died on 23 February 2007 aged 65. He left a will dated 4 December 2000, Probate of which was granted on 12 June 2007 to Mr P R Parbery, the substitute executor named in the will. The nominated executor was Karen Leigh Fallon. It was she who was murdered by Mervyn John Ide Junior whom I will call for the purposes of this judgment Mervyn Junior.

5 By his will the deceased:

(a) Gave the proceeds of any insurance policy on his life subject to the payment thereout of his funeral expenses to his five children in equal shares. There was no such policy.

(b) Gave Mervyn Junior his motor vehicle and farm plant and equipment and livestock.

(c) Gave his farm property to his trustee upon trust as to Portion 44 to excise thereout approximately 40 hectares and to hold such part for his daughter, Karen, and as to the balance of that Portion for Mervyn Junior upon his attaining 35 years of age which he now has.

(d) Gave the residue of his estate to Mervyn Junior.

6 The assets of the estate and their estimated value at death consisted of the following:

(a) Real estate being Lots 44 and 45 DP 752848 being a farm property at Ulong - $600,000.00

(b) Three investments in funds run through the office of the Protective Commissioner - $192,906.00

(c) Motor vehicle - $10,000.00

Total - $802,906.00

7 The liabilities consisted of a mortgage debt of $41,352 and there was a claim by Mr Fallon for moneys due to him by the deceased which does not appear yet to have been determined.

8 All assets other than the farm property have been realised and some income from the farm has been collected.

9 John Thomas Ide, a son of the deceased, brought a claim for provision under the Family Provision Act which was settled at a mediation attended by, it seems, all family members. Under the terms of the settlement, the plaintiff John Thomas Ide received $150,000 and the motor vehicle. It was agreed at that mediation that the three daughters of the deceased should each receive $10,500 from the estate. It was also agreed that any orders made in favour of any other claimant under the Family Provision Act would be borne by the share in the estate remaining and passing to Mervyn Junior.

10 There are legal costs incurred by the estate including costs for the Family Provision Act proceedings of John Thomas Ide of about $50,000 and other liabilities have been incurred, some paid and some outstanding. The present position with the estate is that the total of $31,500 due to the three daughters remains unpaid and some of the costs are unpaid. The only asset remaining is the Ulong property.

11 The value of the Ulong property is agreed to be $825,000. It is leased until 30 November 2010 under a four year lease at a present annual rent of $24,650 payable quarterly, the Council rates being paid by the lessor and the Pastures Protection rates being payable by the lessee. The tenants have said they would like to renew the lease until Mervyn Junior is released from gaol in 2013. As I have said, there are no other assets. Two of the daughters of the deceased have said they do not wish the real estate to be sold to enable the sums of $10,500 to be paid to them immediately, but the position seems to be that unless moneys are borrowed against the property it may have to be sold to pay the costs of these proceedings, at least if the plaintiffs obtain an order for costs and almost certainly if payment of lump sums are ordered by way of provision. The alternative would be to raise money secured on the property up to a figure where the income from the rent would cover the mortgage interest. Mervyn Junior wishes the property to be retained.

THE DECEASED

12 Mr Ide Snr was born in 1941. He married in 1963 and separated from his wife in 1984 and was divorced in 1992. There were six children of the marriage, namely, Julie, Thomas, Karen, Judith, Jan and Mervyn Junior. The evidence is quite sparse but it appears that the deceased spent most of his life after marriage on the Ulong property raising cattle on it and entering into partnership with Mervyn Junior at some stage to carry on the cattle raising business. Mervyn Junior also worked as a fencer and it seems that the income from this went into the partnership and when not engaged in fencing for the most part he worked on the farm with his father.

13 In October 1996 the deceased underwent a hip operation at the Baringa Hospital at Coffs Harbour. Although he visited the farm he stayed with one of his daughters until April 1997 when he returned to the farm to live. From 1998 the deceased became somewhat forgetful and confused. His son John, moved to the farm and lived in a caravan there for nearly a year until mid 1999. In the first part of 2000 the deceased lived part time at the farm and part time with his daughter, Julie. His health was deteriorating. He was admitted to Coffs Harbour Hospital in September 2000 and after transfers to other hospitals was finally admitted to the Mareeba Nursing Home in January 2001 where he remained until he died. At some stage his affairs must have come under the control of the Protective Commissioner but the evidence does not establish when this was.

14 The plaintiff Jenifer Corbett (“Jenifer”) was born on 25 June 1979. She met Mervyn Junior as a result of his friendship with her older sister. She, Jenifer, said she commenced “a personal relationship” with Mervyn Junior when she was 16 and in Year 10 at school. She did not do well at school and has trouble with reading; she left at the end of Year 10 in 1993. She worked in a supermarket at Coffs Harbour later taken over by Woolworths and continued to work there until 2000 as I will set out later. In June 1996 she moved to the farm at the request of Mervyn Junior. She said they had separate rooms but they did have sexual intercourse. She stayed at Ulong when the deceased had the hip operation in October 1996 but after arguments with Mervyn Junior, perhaps as to whether she should live at Coffs Harbour or on the farm, she left the farm and returned to live with her mother in April 1997. By then she was pregnant.

15 Teena, the first child of Jenifer and Mervyn Junior, was born on 5 September 1997. The parents led separate lives for some time but towards the end of 1999 they re-established their relationship at least to some extent. Jenifer said that the deceased saw that things were crowded at her mother’s house as there were many children and some of their offspring living there. The deceased subsequently invited her back to live on the farm and she returned there. Mervyn Junior was there from time to time when not away fencing. Jenifer fell pregnant again and the second child, Kimberly was born in January 2001. Jenifer had continued working at Woolworths while she was looking after Teena but on the days when she was working she took Teena down to her mother at Nana Glen to mind and she often stayed overnight with her mother. By the end of 2001 her relationship with Mervyn Junior was strained but she continued to live on the farm.

16 Mervyn Junior murdered his sister, Karen Fallon, on 18 February 2002. It seems he had become emotionally upset as a result of actions his sister had taken which resulted in the partnership being dissolved and the cattle sold. On 23 November 2003 he was sentenced to 15 years imprisonment with the sentence deemed to have commenced on 18 February 2002 with a non parole period expiring on 17 May 2013. Jenifer was given notice to vacate the farm in August 2002 and she returned with her children to live with her mother at Nana Glen. She remained there until the end of 2005 when she moved to rent a house owned by one of her brothers paying $210 rent per week. Towards the end of 2008 she had to leave that property and move to a house at Glenreagh which she rents for $300 per week.

17 Teena is about to turn 12 and Kimberly is aged 8. They are respectively in Year 6 and Year 3 at the Nana Glen Primary School. Both have learning difficulties and attend support or learning assistance programmes at school. It seems that Kimberly is probably doing a little better than her sister Teena.

RELATIONSHIP OF THE PLAINTIFFS WITH THE DECEASED

18 Jenifer says that during the time of her first period living at Ulong from June 1996 ,she and Mervyn Junior were in what she called a boyfriend-girlfriend relationship rather than a de facto relationship and I accept that. She was after all very young. During that period Jenifer was a member of the same household as the deceased and was provided with accommodation by him and to that extent could be thought to be dependant upon him. It may be that she was not really dependant upon the deceased for this as although accommodation in her mother’s home was crowded but was certainly available. Jenifer says, and I accept, that after she left Ulong and returned to live with her mother on the first occasion, she remained in regular contact with the deceased, visited him at weekends staying overnight on occasions and that while there she assisted the deceased with household cooking and washing and drove him around the farm. Mervyn Junior was rarely there at this time.

19 On the second occasion of living there from the end of 1999, Jenifer moved to Ulong at the suggestion of the deceased who by that time was deteriorating mentally. She was still working at Woolworths so she had to drive from Ulong to Coffs Harbour each working day leaving Teena with her mother and paying her mother for looking after Teena but as I have said, sometimes staying overnight. She said that until the time the deceased moved to hospital she undertook nearly all the housework, cleaning, cooking and some lawn mowing. Mervyn Junior was often away for long periods doing fencing work.

20 As often happens in these matters, there is dispute about the extent and quality of the work done by Jenifer. It is possible that the work of Jenifer was not perfect but there is no doubt she did contribute to the welfare and wellbeing of the deceased. Jenifer said under cross examination that during this time she would spend money she received as wages or from Centrelink to purchase basics for herself and Teena and that the deceased and Mervyn Junior would cover their own expenses. Nevertheless, I find that the deceased did pay for some of the joint outgoings at this time.

21 So far as the grandchildren plaintiffs are concerned, the evidence established that the deceased was fond of Teena and enjoyed his time with her up until he moved to hospital when Teena was still only three. Jenifer took both children to visit him when he was in the nursing home but as the evidence is that by then his dementia was reasonably advanced, he probably did not know who Kimberly was. Kimberly was never part of the household of which the deceased was a member but that of course is not necessary for eligibility in her case to bring the claim which she does. To the extent that she lived in a house on the Ulong farm up to September 2002 she was for something less than two years living in accommodation provided by the deceased.

22 There is not great dispute about the facts here. The areas of dispute are the extent of the services and care provided to the deceased by Jenifer, and whether in the period from February to June 2000 the deceased spent more or less equal time living at the farm and with his daughter, Julie Sunderland, of whether he spent most of this time at his daughter’s home. People have different views about standards of cleanliness. It was the deceased who invited Jenifer to return at the end of 1999. No doubt he got more difficult as his dementia increased. However, so far as the period between February and August 2000 is concerned, I accept the evidence of Mrs Sunderland who was not cross examined that the deceased lived most of the time with her and her husband making only occasional visits to the farm but staying for short periods when he did.

23 Evidence going to the credit of Jenifer shows that she had made false or at least conflicting statements to Centrelink, to the Local Court at Coffs Harbour in applying for an apprehended violence order against Mr Fallon, and to the Court on the bail application of Mervyn Junior. The statements were intended to support either applications then being made by Mervyn Junior or by Jenifer and were contradictory to each other depending on whether Jenifer wished to show that she was in a close relationship with Mervyn Junior or in no relationship with him at all. Her evidence repeated here that she had had sexual intercourse with Mervyn Junior on no more than six occasions from 1996 until 2002 I do not accept but I find the relationship was not a close one. In spite of all this, little turns on the credit issues in this case apart from my findings in the preceding paragraph.

UNUSUAL MATTERS

24 This is a very unusual case. One of the difficulties is that it is impossible to tell from the evidence when the deceased’s mental condition reached the stage that he was likely to have lacked testamentary capacity. It may be that when Mervyn Junior murdered his sister Karen Fallon the deceased did not have the capacity to make a new will altering, if he wished to do so as a result of that act, the provisions which he had made under his will for Mervyn Junior but that is not established. The other somewhat strange matter is that as Mervyn Junior murdered his sister and not his father, the forfeiture rule does not apply even though under the will Mervyn Junior now stands to benefit as a result of the murder or perhaps is likely to benefit because had she not been murdered, it is more likely than not that Karen would have survived her father. It is also not known what attitude the deceased would have taken as a result of his son’s actions so far as his will was concerned. While one might assume that the deceased quite rightly would have been horrified by the action taken by his son, that does not necessarily mean that the Court should assume that the provision made for his son would have altered.

25 The other difficult and interesting question results from Mervyn Junior being in gaol. Generally speaking a parent of a child is required to contribute towards the maintenance of that child. The Child Support (Assessment) Act 1989 (Cth) (“the Child Support Act”) makes that plain. In ordinary circumstances there can be no doubt that would be the position with Mervyn Junior so far as Teena and Kimberly are concerned and it does seem that up to the time when he was imprisoned he was making some contributions towards the general outgoings of the family perhaps by payments pursuant to the Act. If the provisions of the general rule take effect to their full extent then it seems that in accordance with the Child Support Act Mervyn Junior would be required to contribute to that maintenance. This may require application for administrative assessment followed by an application under s 123 of the Child Support Act for some lump sum provision to be credited against ordinary maintenance rates. Because the position is so unusual there does not seem to be any particular authority on this but the Child Support Act seems to allow it. The minimum figure Mervyn Junior would usually be entitled to keep for his own support is not really applicable as he has no self support costs.

FINANCIAL POSITION OF JENIFER

26 From the time that she left school until March 2000, Jenifer worked in the supermarket at Coffs Harbour now owned by Woolworths. She was a permanent employee but her hours of work varied each week. She left the job because she said that the income was not worthwhile considering the travel required from Ulong or Nana Glen and payments which she made to her mother to look after Teena. Her only assets are a 1999 Holden Commodore car worth about $4,500, furniture worth $1,500 and what she described as “food livestock” of $200. She is required to repay Centrelink $7,500 which is being deducted in instalments from her fortnightly payment. The income of Jenifer from Centrelink payments and family tax benefits is about $490 per week. Her outgoings, including $300 per week for rent, are said to be $629 per week. There seems to be a shortfall of about $140 per week but somehow she is managing. From time to time, though not disclosed in affidavit evidence, it seems that Jenifer makes money from fattening cattle and selling them and this may help cover the shortfall. She has no money for holidays, no health insurance and no money to pay for extra help the children need with their school studies.

27 Jenifer’s claim is for provision sufficient to allow her to purchase a modest home in Nana Glen or in that vicinity. On the evidence the cost of obtaining such a home including the expenses of acquiring it and moving in would be about $285,000. She seeks an order for $350,000 to cover the cost of the house and future needs. She, or perhaps more correctly the children by their tutor seek legacies of $35,000 each.

CLAIM OF THE GRANDCHILDREN

28 It is convenient to deal with this claim first and then consider the claim of Jenifer having regard to the decision on the grandchildren. Kimberly was of course never a member of the same household as the deceased but that is not a requirement so far as a claim of a grandchild is concerned. There is no evidence the deceased made any contribution to her maintenance. It is true that she lived for about a year in the house of the deceased but that was because her mother was there as was her father for some of the time. I consider she was dependant on her mother for accommodation and not the deceased. It follows her claim fails.

29 I turn to the claim of Teena. Whatever contribution the deceased made towards the general household expenses this does not in my view make Teena partly dependant on the deceased. She was dependant on her parents for sustenance and accommodation. The fact that her mother, with whom it is clear she would reside, lived for a time in the deceased’s home does not necessarily make her dependant on the deceased rather than on her parents. The principles are conveniently summarised by the decision of Palmer J in Vanvalen v Neaves; Gilroy v Neaves [2005] NSWSC 593 at [41]. I do not consider Teena was dependant on the deceased. Thus her claim fails.

30 If I were incorrect in my decision on dependency of the grandchildren I would not consider there were factors which warranted the making of the application. The question is whether the fact of Mervyn Junior being in gaol with four years of sentence yet to run before parole bears upon this. A deceased person’s responsibility does not necessarily move from a child to grandchildren because a child is not able to provide support. In the circumstances of this case where the evidence does not establish the full extent of the deceased’s incapacity or when it arose, the fact is that it is now seven years and at death five years since the deceased had any close relationship with the grandchildren. I am not satisfied that there are factors which warrant the application.

31 If this also is incorrect then it seems to me to be impossible to come to a conclusion in favour of the grandchildren without knowing what provision by way of additional maintenance could be made available by use of the provisions of the Child Support Act. Although I relisted the matter after informing counsel I though it necessary to have submissions on this, the position after such submissions was not entirely clear. However, it does seem agreed that the Family Court or perhaps this Court under cross vesting legislation could make orders for maintenance of the children by their father particularly as he has no costs for self support. As I consider any order in favour of the grandchildren should only be for maintenance until their father is released, I do not think it proper to use the Act as a means of short circuiting an application for maintenance available in any event.

32 In addition to those reasons I consider that the application of ordinary principles would require that responsibility to maintain the children is a matter to be considered under the claim of Jenifer.

33 Finally, were I wrong on all counts I would have made an order for provision for each of the grandchildren by way of maintenance until six months after Mervyn Junior is released from gaol in a sum of $3,000 a year payable quarterly to the mother.

CLAIM OF JENIFER

34 The first question which must be decided is whether there are factors which warrant the making of this application, it being what is generally described as a Category (d) application under the Act. See s 9(1) of the Act. I am of the view that the considerations in such circumstances are those set out in re Fulop (1987) 8 NSWLR 679 and that there are factors which warrant the making of the application if, while the plaintiff is a person outside the category of persons such as spouses, de facto partners and children generally regarded as persons who should be within the contemplation of a deceased person when making his or her will, the facts of the particular case bring the applicant within the class of persons to whom proper members of the community would think the deceased should have had regard when considering his will. This can be expressed in ways such as a legitimate claim or moral obligation and in my view it does not matter which.

35 Had Mervyn Junior not been in gaol, I would have had no difficulty in finding that there were no factors which would warrant the making of the application. The relationship between Mervyn Junior and Jenifer was not particularly close. The circumstances in which Jenifer went to live with the deceased on the first occasion would in no way have brought her within the ambit of a person who should be considered when making testamentary dispositions. So far as the second period was concerned during which Jenifer was living as a member of the same household as the deceased, it was for a very limited period but would be sufficient to bring Jenifer within the ambit of the household requirement of s 6(d) of the Act. The extent to which she was dependant upon the deceased again was not great but I consider that the provision of accommodation for her did make her dependant upon him for a relatively limited period even if somewhat unsatisfactory accommodation were available in her mother’s home. It could always be said that a person could live in a tent but that does not mean a person who does not take up that accommodation ceases to be dependent for shelter upon another who provides shelter in his home. Jenifer could be taken to have been given accommodation by the deceased because it was convenient for him and it was convenient for her. There was certainly no obligation on him to do so. Had Mervyn Junior not been imprisoned Jenifer might or might not have remained living on the farm. This would probably have depended upon the position with her relationship with Mervyn Junior but whatever the relationship I would not have found factors warranting the application.

36 In those circumstances, the question is whether the fact of imprisonment makes a difference to this conclusion. It is a difficult case but I have come to the conclusion that it does not. The relationship between Mervyn Junior and Jenifer was and is not one where a parent of Mervyn Junior would be expected to provide for the person with whom Mervyn Junior was in some sort of relationship, on part of her evidence not being a particularly close one. As I said, had Mervyn Junior not been imprisoned there is no certainty at all that Jenifer would have remained living at the farm or that the deceased would have allowed her to do so. At the date of death of the deceased Jenifer had not been on the farm for nearly five years. The deceased was not maintaining her during the period. The degree of dependency was quite slight, the period of membership of the same household was short and in spite of his being the father of the two children there has been no suggestion that Mervyn Junior and Jenifer were in a stable relationship which could be permanent. I realise that the Social Security Department found there was a de facto relationship but Jenifer denied this and the denial is relevant to her claim. I have concluded that there are no factors warranting the making of the application as I do not think Jenifer was a person who should be considered a natural object for consideration by the deceased in determining his testamentary dispositions. In those circumstances in accordance with the Act the Court should proceed no further with it. However, in these matters it is usual for the Court to proceed further contrary to the directions of s 9(1) of the Act and to determine what would be done to avoid additional costs if on appeal it were held that there were factors warranting the making of the application. I doubt if this is the proper procedure but as it is usual I will follow it.

37 If I am wrong then it might be thought that as no provision was made for Jenifer and she is living in difficult circumstances with two young children to maintain then the first stage process required by Singer v Berghouse (1994) 181 CLR 201 has been satisfied. But that is not necessarily so because consideration of what is proper provision for maintenance, education and advancement must be determined “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” Singer at 210. A surmounting of the s 9(1) hurdle does not necessarily result in an order. The main claim of Jenifer is for a lump sum sufficient to enable her to purchase a house. In view of the somewhat tenuous relationship between Jenifer and Mervyn Junior and the relatively limited time during which Jenifer was a member of the same household as the deceased and having regard to the accommodation benefits which she did receive from him while she was there it does not seem to me that proper provision would require provision of a house. I have had regard to the requirements of s 9 of the Act and taken into account the contribution Jenifer made to the welfare of the deceased while living with him and the fact she continued to visit the deceased in the nursing home. I have also taken into account the fact Jennifer did not attend the funeral of the deceased and gave no explanation of this. I have pondered for a long time over the strange facts of the case but also remember that the circumstances existing before and after the death of the deceased have not changed except that a fund is now available. I have also taken into consideration the provisions of the Child Support Act. I consider the extent of benefit, if any, available to Jenifer was for her to establish as plaintiff and not for the defendant to put forward. A successful overcoming of the s 9(1) hurdle does not necessarily result in an order in favour of the plaintiff in the circumstances of this plaintiff. It is difficult for a court to impose its view of the bearing of his crime on the otherwise legitimate claim of Mervyn Junior. However, had I proceeded so far as this I would have held that in the circumstances proper provision required an amount to be ordered for maintenance to assist with the household expenses particularly those for the children until Mervyn Junior is released. I would have ordered $6,000 a year for five years payable yearly in advance.

ORDERS AND COSTS

38 The result of this judgment is that in each action the summons will be dismissed.

39 So far as the costs are concerned these should ordinarily follow the event. As the applications are by persons within category 6(d) of the definition of eligible person, s 33(2) of the Act precludes an order that costs be paid out of the estate where an application is unsuccessful unless there are special circumstances making it just or equitable to do so. I would not make an order for the costs of the plaintiffs to be paid from the Estate. I will, however, hear submissions on whether the plaintiff or in the case of the infants, the tutor, should pay the costs of the defendant.

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