Eather v Maher

[2006] NSWSC 746

CITATION:	Eather v Maher [2006] NSWSC 746
HEARING DATE(S):	24/07/2006
JUDGMENT DATE :	25 July 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
EX TEMPORE JUDGMENT DATE:	07/25/2006
DECISION:	Paragraph 65
CATCHWORDS:	Family Provision. Application by two children left out of the deceased's will. Consideration of circumstances surrounding the contact between the plaintiffs and deceased in last 12 years of his life. Held testator responsible for such difficulties. Order for provision made.
PARTIES:	Grahame Barry Eather and Rochell Ann Campbell v Beryl Maher (Estate of the late Barry George Eather)
FILE NUMBER(S):	SC 3048/2005
COUNSEL:	Mr RD Wilson for plaintiffs Mr D Williams for defendant
SOLICITORS:	Turnbull Hill Lawyers for plaintiffs Smith Dunlop Lawyers for defendant

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 25 JULY 2006

003048/05 - GRAHAME BARRY EATHER AND ANOR v BERYL MAHER - ESTATE OF BARRY GEORGE EATHER

JUDGMENT

1 HIS HONOUR: This is the hearing of an application under the Family Provision Act in respect of the estate of the late Barry George Eather who died on 9 November 2004 aged 64 years. The deceased was survived by his three children, his former wife and a de facto partner who lived with the deceased for two years before his death.

The will of the deceased

2 The deceased made his will on 11 October 2002 under which he appointed his sister the executor will. His house at 1 Ada Street Singleton was to be held for Valerie Eveleigh, his defacto partner, for her life or until she remarried. The remainder went to three of his son Michael's grandchildren; his insurance policies of $147,127.00 were left to his son Michael. The residue was to go to his sister.

Assets in the Estate

3 The house is valued at $280,000. There was a funeral fund benefit of $1,700 and the proceeds of the insurance policies of $147,127.05. This is a total of $428,827.05.

Liabilities

4 There were funeral and administration expenses of $17,256.09; legal costs of the defendant $47,441.00 and taxation liabilities of $15,550. That is a sub-total of $64,697.09. This leaves a net estate before the plaintiffs’ costs of $364,129.96. The plaintiffs’ costs are $47,236.00, leaving a net estate of $316,893.96.

Family History

5 The deceased, Barry George Eather, was born on 31 January 1940. He was brought up in Singleton and worked on a farm and then on a milk run and later in his life worked at Warkworth Mine till he retired at the age of 60 years.

6 His sister, Beryl Maher, was born on 20 May 1938. His defacto partner, Valerie Dawn Eveleigh, was born on 26 February 1943.

7 The deceased married Beryl Ann Eather, formerly McTaggart, on 30 March 1963 and they had three children, Grahame Barry Eather born on 4 October 1963, Michael Leslie Eather born on 4 February 1965, and Rochelle Ann Campbell born on 6 August 1967.

8 The deceased, his wife and family had a difficult life together and eventually, in 1992, the deceased separated from his wife Beryl Eather. They had a property settlement in 1994, and in 1997 were divorced. In September 2001 the deceased was diagnosed with cancer.

9 On 6 October 2002 Valerie Dawn Everleigh commenced to live with the deceased at his home at number 1A Ada Street, Singleton which he had retained in the property settlement. He executed his will, as I have mentioned, on 11 October 2002.

10 On 9 November 2004 the deceased died. The summons was filed within time on 18 May 2005 and probate was granted on 31 May 2005.

11 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that the Court must take. At page 209 it is said:

“The first question is, was the provision (if any) made for the applicant ‘inadequate for (his or her) proper maintenance, education and advancement in life’? The difference between ‘adequate provision’ and ‘ proper maintenance’ etc were explained in Bosch v Perpetual trustee Co Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant 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.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicants. In saying that, we are mindful that there may be some circumstances in which a Court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

12 The plaintiffs, of course, are eligible persons and I turn to consider their situation in life.

The situation of Grahame Barry Eather

13 Grahame Barry Eather is 41 years of age and works as a Roads and Traffic Authority operator and earns $828 net per week plus some overtime. His wife Jayne suffered a serious back injury at work and receives workers compensation payments of $433 per week. This will continue until next year and she hopes to get back to work after that period. They own their own home at 12 Ada Street, Singleton, having a current value of $290,000. The home is subject to a mortgage of $185,520. Their only other assets, apart from superannuation, are two old motor vehicles, a small amount in the bank and furniture and personal items. Their current average weekly expenses are $1,405 which slightly exceeds their weekly income. They have two sons, Bradley aged 15 years, who has reading difficulties, and Danny, age 17 years, who is studying for the Higher School certificate. He may be going to Teachers College shortly but he still wishes to stay at home and his parents hope to be able to provide for him.

14 Grahame is in good health but, as I have mentioned, his wife is not. She suffers from a series of problems, not the least of which is thoracic myelopathy which needs urgent treatment. She uses morphine for pain control.

15 No provision was made for Grahame during his lifetime by the deceased and the contributions Grahame made to the estate comprised of his helping his father with the milk run for two years and walking his greyhounds.

16 It is necessary to see how Grahame says he has been left without adequate and appropriate provision for his maintenance, education and advancement in life. In his affidavit he refers to a number of matters.

17 There are a number of things which they would like to do, including renovate the kitchen, and plainly these things are very necessary. The costs of these renovations are estimated at $800. They want to renovate the bathroom, which obviously also is needed, and that will cost some $15,000. The bathroom is presently combined with the laundry. They need new floor coverings and they are estimated to cost some $8,000. They would like to install a veranda on the back of the house and the estimates for that is $8,000.

18 The other thing which they want to do is to provide another bedroom. That apparently is planned by putting on a second storey, which seems to be an extraordinarily expensive way of providing another bedroom. The cost involved in that, having the work done by Graham's wife's father, is $127,000.

19 It is plain they may have to provide some other bedroom because there is only one bedroom for the two boys, both of whom are getting older as teenagers and obviously need some more room. It seems extraordinary the cost which is mentioned just for an additional bedroom. Maybe some other way can be found to do this work.

20 They also, of course, have a mortgage which they would like to reduce to make their situation a little more bearable.

The situation of Rochelle Ann Campbell

21 Rochelle Ann Campbell is presently aged 38 years. She is married to John Campbell and they have three children under the age of 12 years. She does not work. John Campbell works as a trades assistant earning on average $1,000 net per week. They own their own home at 24 Broughton St, Singleton, having a value of $260,000 subject to a mortgage of $133,000. They have two motor vehicles, one of which is new, and $25,000 in the bank. John Campbell has a small superannuation policy. Their weekly outgoings are approximately $1,032.50.

22 Both are in good health and Rochelle has received no financial assistance from the deceased. Rochelle helped with the housework around the house until she left home when she was 18 years of age.

23 It is necessary to see how Rochelle Campbell says she has been left without adequate and proper provision for her maintenance, education and advancement in life.

24 Rochelle and her husband have problems with their home in that it badly needs underpinning and this will cost approximately $10,000. There are cracks throughout the brickwork and walls of the house which will need repair and estimates are in the sum of $16,000. There are repairs required to the gutters, which are obviously falling apart, and the estimate for that is $10,601. That is a total of $36,601.

25 They also have a mortgage which they would like to reduce and that would at least provide some funds for their expected renovation because they have set aside a sum of $24,000. The difficulty in doing that is getting appropriate tradesmen who are prepared to two this sort of work but they hope to be able to do it in a couple of months.

26 It is also necessary to consider of the situation in life of others having a claim on the bounty of the deceased. There are a number of such people, namely the deceased's son Michael, the grand children, and his partner for the last two years of his life. His sister was the residuary beneficiary but with expenses there will be no residue. She will keep the jointly owned bank account which she had with the deceased and which contains a sum of $20,000. I record also that she assisted looking after the deceased in his later years of life.

The situation of Michael Leslie Eather

27 Michael Eather is presently 41 years of age. He is married to Rochelle Eather and they have four children under the age of 18 years. Michael has diabetes and heart problems but they do not interfere with his work. His wife Rochelle takes medication for blood pressure, cholesterol and depression.

28 Michael Eather works as a production worker with Coal & Allied earning net $1,281 51 per week. His wife works as an assistant nurse earning between $100 and $500 per week. They own their own home at 150 Gardener Circuit Singleton which is subject to a mortgage of $130,000 in favour of the Commonwealth bank. They also owe $136,000 to his wife's parents who lent them that money in order for the home to be constructed on the land at 150 Gardener Circuit Singleton. Michael Eather has a superannuation policy having a value of $114,000 as at on 3 July 2006. The family owns two motor vehicles and some shares with AMP.

29 Michael eschewed any estimate of the value of his home, but it is plainly worth (having regard to its cost) substantially more than the loan which he owes. Michael also worked as a child helping his father with the milk run.

30 Michael and his wife have children, three of them having an interest and are aged 18, 14, 11 and 8 years. The Child Amanda suffers from a mild intellectual disability and has ADHD. Apart from this the evidence does not address their situation in life and obviously they lived in the normal way with their parents.

The situation of Valerie Dawn Everleigh

31 Valerie Beverly is presently 63 years of age. She lived with the deceased at his home at 1A Ada Street, Singleton for a period of two years and one month from 6 October 2002 until his death on 9 November 2004. Her children do not appear to be dependent upon her.

32 Valerie Everleigh is an aged pensioner and receives $450 a fortnight. Her only asset of significance would appear to be a Holden Barina motor vehicle which was purchased for her by the deceased. The life estate which she receives under the will has been valued at $89,000.

33 After the deceased's death on 9 November 2004 Valerie Everleigh continued to live in the estate property at 1A. Ada Street Singleton. However, from June 2005 to the present time she would appear to spend on average three out of every four weeks away from the estate property.

34 There is nothing improper in this as she has family at Wyngham, including a very sick sister for whom she cares. This is only a two-hour drive away. She has nothing behind her and has no other accommodation option apart from family and relatives. She cared for deceased when he was sick and dying from cancer. That involved a lot of personal care as well as doing all the personal housework for the deceased.

35 One of the main questions in the case is the relationship between the deceased and the plaintiffs whom he excluded from his will.

36 In clause 6 of his will the deceased gave the following reasons for making no provision for Graham Eather and Rochelle Campbell:

“(a) they have not been dependent on me;
(b) they have never concerned themselves with my welfare;
(c) they have also deprived me of the enjoyment of seeing my grandchildren.”

37 Section 7 of the Family Provision Act provides that if a Court is satisfied that a person is an eligible person "it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at time the order is made, to be made for the maintenance, education or advancement in light of the eligible person.”

38 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted:

“This conclusion directly raises the question of whether the word ‘ought’ in s.7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator's Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.
It seems plain from the comparison of the two Acts, and particularly from s.3 of the 1916 Act and s.7 and s.9 of the present Act, the language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated set of words that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.
The Act draws a distinction between the eligible persons referred to in par (a). and par (b) on the one-hand and par (c) and par (d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased's person spoke of in s.3 of the 1916 Act and s.7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased.
In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the Court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479; and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin J, both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that ‘many cases suggest that an applicant must show a moral claim…’, he went on to say that this was a gloss on the Act and was unwarranted and inconsistent with the language of the legislature scheme.
It seems to me that the introduction into s.7 of the present Act of the word ‘ought’ in replacement of the words from s.3 of the 1916 Act ‘as the Court thinks fit’ shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word ‘ought’ seems to be deliberately adopted, in the present Act, from what Gibbs J. called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par (c) and par (d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par (a) and par (b) although it is unnecessary to decide that in this case."

39 Meagher JA (NSWLR at 570) agreed with Priestley JA.

40 Meagher JA had previously expressed a view in Hughes v Hughes, Court of Appeal, unreported 6 June 1989 (an adult daughter's case) that the duty arose to make provision as established in that case as follows:

“Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right, but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and professed and continued willingness to be of whatever assistance to her father she could be.”

41 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

42 In Benney v Jones, Mahoney JA at 560 said:

“Whether an order should be made raises (as it has been described) the moral or normative question. The question, remains, whether the application is made under the former or the present Act. The nature of the question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490; see also Kearns v Ellis (Court of Appeal, 5 December 1984, unreported) and Gorton v Parks (1989) 17 NSWLR 1.
Where the applicant is a member of the deceased’s family, as referred to in the earlier paragraphs of s.6 (1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear."

43 In Gorton v Parks (1989) 17 NSWLR 1 at 7 Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, His Honour noted:

“It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-body adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie, or at any stage. It is a discarded categorisation."

44 Bryson J. also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales case) (1962) 107 CLR 9. Scales’ case was a claim by an adult son, who was unsuccessful, and where Dixon CJ. said (at 18):

“The outstanding fact of the case is that, throughout the period of their joint lives the son disregarded the father and the father disregarded the son and after a time expressly disowned him. … In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death."

45 At 17 NSWLR 1 at 9-10, Bryson J. sought to distinguish Scales case.

Dixon CJ. did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgement of the obligations or of the child appears to me to be an idea from a distant age. There have been many changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seems to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; … Under modern legislation parental duties are not distinguished according to an acknowledgement or legitimacy. The idea that acknowledgement by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962."

46 Bryson J in any event distinguished Scales case (p11) on the basis that on the facts before him the plaintiffs;

“In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and, did not make even token attempts to assist them in any way."

47 In Walker v Walker (unreported 17 May 1966) Young J reviewed the question of moral duty. His Honour reviewed Gorton's case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows:

“In Singer's case, a widow who has been married less than one year to a 68-year-old man failed in her application under this Act in this Court, in the Court of Appeal and in the High Court. The majority of the Court said at p.208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p.209 the Judges pointed out that re-Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that “ we doubt this statement provided useful assistance in elucidating the statutory provisions. Indeed, reference to ‘moral duty’ or ‘moral obligation’ may will be understood as amounting to a gloss on the statutory language”. They then say ‘the determination of the first stage in the two-stage process calls for an assessment of whether the provisional (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant 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."

48 Young J also observed:

“In Frazer's case, Kirby P at p.29 said that ‘ I do not consider that it would be safe for this Court, or other Courts in this state, to disregard the obiter dicta in Singer v Berghouse concerning ‘moral duty’. However, his Honour's decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law ‘either by the observations of the majority in Singer or by the High Courts reference, in the footnote, to what Murphy J. said earlier (p.27).”
“Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words ‘moral claim’ in decisions under this Act.
“Sheller JA again did not consider that the High Court's suggested abandonment of concepts of moral claim or moral obligation changed the task of the Court. He said, with reference to decisions of Murphy J. at p.42 ‘ the point made in the judgments to which Murphy J. referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant's case but not alone sufficient to justify an order in the claimant's favour. Thus, in theory an order would not be made out of the estate of the deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The Courts, in giving effect to the legislative scheme, having accepted that the bear moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to impound the Court to make an order."

49 The concerns expressed about any change in the law as a result of Singer v Berghouse were recently put to rest by the High Court in Vigolo v Bostin [2005] HCA 11 at 25, 74-75 and 121.

50 In Walker v Walker(p.27) Young J noted:

“ it is often impossible to work out whether the degree of separation between parent and child of the date of the parent's death is solely the fold of either or whether it has come about by factors too strong for either to control or somewhere in between.
The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction that he in fact did to constitute proper or adequate provision for the plaintiff.
Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant…”

51 These words were recently approved by Ipp J in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 when he said:

“ I agree with his honour's remarks, although I would express the rider that, often, where an applicant is a person within paragraphs (a) or (b) of the definition of ‘eligible person’ in s 6(1) of the Act, proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his honour expounds.”

52 The deceased was a violent man, particularly when drunk, and, after the separation from his wife Beryl Eather in 1992, he had little or no contact with Grahame Eather and Rochelle Campbell. In the case of Grahame Eather, he and his wife Jane were in the habit up until 1992 of having Sunday lunch with the deceased and Beryl Eather. However, the deceased discouraged this by saying to his former wife “If you don't stop Jayne and Grahame coming to the house I'll shoot them." This was as a result of an argument one day at dinner when the deceased was drunk and demanding more beer, while at the same time trying to hold his two year old grandson. He became violent and killed a pet bird in front of the child.

53 His threats to shoot were not idle comments. He kept two guns and during Grahame's childhood he had held a gun to his head and threatened to shoot him. There was another incident later when there was further domestic violence by the deceased against his wife and including Michael.

54 Twelve months later the parents separated and Grahame did not speak to his father again. He was plainly frightened of this violent man and naturally did not want his young children exposed to him. He did, however, when the deceased was sick make an approach to the deceased through a friend to see if he could see the deceased. This approach the deceased rebuffed.

55 Much the same thing happened with Rochelle after the parents separation. The deceased saw her son and he came to her wedding. He stayed the half an hour and left. He seems to have ignored Rochelle in the street. She also tried to approach him through her husband on two occasions, one was 12 to 18 months before his death and another two months before. Both approaches were rebuffed.

56 The relationship of the deceased and his son Michael continued after separation because Michael lived at home with him after the separation until he moved. He was his favourite.

57 I can well understand Grahame and Rochelle's reluctance to see their father and expose their children to such a drunken and violent man. To their credit they did try to mend fences but the deceased rebuffed all such approaches. In these circumstances their contact is not such as to disentitled them to an order. However, they have not had as much contact as Michael and this must reflect in Michael's favour.

58 I have earlier referred to the value of the life estate given to Valerie Everleigh. She plainly was the de facto partner of the deceased.

59 In Marshall v Carruthers [2002] NSWCA 47 Hodgson J had the following to say in respect of the provision in favour of de facto partners:

“The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One of fact or which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased.

60 The Master referred to the following statement of principle which appears in Luciano v Rosenblum [1985] w NSWLR 65 at 69;

“ It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.’
I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion, it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage of occasioned by the greater responsibility which women often take in looking after children. That factor is of course absent here."

61 Plainly in this case there were no children, no contributions to the estate of the deceased and a very short relationship. The provision of a life estate having a value of $89,000 was over generous in the circumstances of this estate. The provision of a remainder interest to three of Michael's children was no doubt part of the deceased's plan to exclude the plaintiffs and limit the funds flowing to Michael.

62 I think that both Grahame and Rochelle with their family responsibilities need to reduce their mortgages and do work on their homes. This all has to be balanced with the provisions made for the deceased's de facto partner, Michael, and three of his children.

63 In respect of the latter, they will be provided for by Michael and his wife who presently stand to receive $147,127.00 if the house is sold and some other provision is made for Valerie. As I have said, it is an over generous provision in the circumstances.

64 If the house is sold, because of the expenses of the claim there is likely to be funds of $185,000 less selling expenses. A distribution of that sum to provide $50,000 for Rochelle, $60,000 for Grahame and $70,000 for Valerie in my view would be appropriate.

65 The orders that I make are:

(1) in lieu of the provision of clause 5 (b) of the deceased’s will the deceased's residence at 1A Ada Street, Singleton, NSW will be held upon trust for sale and to pay there from the expenses of sale and the costs ordered to be paid in these proceedings and the balance to be held for:
(a) as to 7/18ths for Valerie Dawn Everleigh;
(b) as to 6/18ths for Grahame Barry Eather;
(c) as to 5/18ths for Rochelle Ann Campbell.
(2) that the costs of the plaintiffs on a party party basis and the defendant's costs on an indemnity basis be charged upon and paid out of the sale proceeds referred to in order 1.
(3) that the executrix is authorised to allow Valerie Dawn Adelaide three months to vacate the property 1A Ada Street, Singleton.
(4) I order the exhibits be returned.

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