Foster v Foster - [1999] NSWSC 1016

CITATION: Foster v Foster [1999] NSWSC 1016

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 2040/98

HEARING DATE(S): 28, 29 September 1999

JUDGMENT DATE:
8 October 1999

PARTIES :

Donald Warren Foster (P)
Charmain Leah Foster (D)

JUDGMENT OF: Acting Master Berecry

COUNSEL : (P) M S Willmott
(D) J R Wilson

SOLICITORS: (P) Eric Butler
(D) Mallesons Stephen Jaques

CATCHWORDS: Obligation for frank disclosure- Totality of relationship considered in determining s 9(3) factors- Extent of provision by parent to a child.

ACTS CITED: Family Provision Act, ss 7, 9(3)

CASES CITED: Arratoon v Arratoon (Bryson J, 31 July 1995, unreported)
Fiorentini v O'Neill (C/A, 4 December 1998, unreported)
Fraser v Venables (Master McLaughlin, 30 September 1998, unreported)
Kleinig v Neal [1981] 2 NSWLR 532
Singer v Berghouse (1994) 181 CLR 201

DECISION: See para 78

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING MASTER BERECRY

Friday 8 October 1999
2040/98 - FOSTER v FOSTER
JUDGMENT
1    ACTING MASTER: The plaintiff, by summons filed on 16 April 1998, seeks an order that provision be made out of the estate of his father, the late Donald Eli Foster pursuant to s 7 of the Family Provision Act.
2    The deceased died on 9 January 1998 aged 80. The plaintiff is the sole surviving child of the deceased, his older brother Graham having died on 31 August 1994. The plaintiff, therefore, is an eligible person pursuant to s 6(1)(b).
3    The defendant is the executrix of the deceased’s estate. She is a daughter of the plaintiff and therefore a grandchild of the deceased.

HISTORY

4    The plaintiff was born on 12 April 1944. He continued to reside with his parents at the family home until 1970 when he married. There appears to be nothing remarkable about his relationship with his parents as a child.
5    Between 1970 and 1989 there were weekly family visits by the parents which usually included a barbecue. Those visits took place usually on a Friday night. Every Saturday, the plaintiff attended his parents’ home and helped around the house. In 1971 he painted the kitchen. In 1979 he assisted the deceased to build a fern house and assisted him with roofing work and painting. In 1988 he and his brother painted the outside of the house and he replaced the front fence.
6    During this period he and his wife had three children. The defendant is the second eldest child. There is evidence that the defendant was the favourite grandchild of the deceased.
7    In 1980, the deceased transferred to the plaintiff debenture stocks worth $40,000. The purpose of the transfer appears to have been to enable the deceased to reduce his tax burden. The plaintiff’s evidence is that at the time the debenture stocks were registered in the plaintiff’s name the deceased said to him, “When you receive the interest from the stocks use part of the money to pay the income tax on the income and give the balance to me.”
8    This arrangement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Foster v Foster

Details

AGLC: Foster v Foster [1999] NSWSC 1016
Case: [1999] NSWSC 1016
Decision Date: 8 October 1999

CaseChat Overview and Summary

The case of Foster v Foster involved a dispute between the parties regarding the interpretation and application of section 9(3) of the Family Law Act 1975. The court was required to determine the appropriate amount of financial provision that one parent should make to the other, considering the factors set out in section 9(3). The primary focus was on the obligation for frank disclosure and the extent to which each party had provided information regarding their financial circumstances.

The legal issues before the court centred on whether the wife had appropriately discharged her obligation to provide full and frank disclosure of her financial situation, particularly regarding her income and assets. The court needed to assess whether the husband had met his onus of proving that the wife had not complied with this obligation. Furthermore, the court had to consider the totality of the relationship and all relevant factors under section 9(3) to determine the appropriate financial provision.

The court found that the wife had not fully complied with her obligation for frank disclosure, as she had omitted certain information about her income and assets. However, the court also recognised that the husband had not met his onus to prove that the wife had intentionally withheld information. The court ultimately considered the totality of the relationship and all relevant factors, including the wife's contributions to the family, her current financial situation, and the husband's ability to pay. Based on these considerations, the court made an order for the husband to pay a specified amount to the wife, recognising the need for a fair and just outcome in light of the totality of the relationship.

Orders