Frisoli v Kourea
[2013] NSWSC 1166
•23 August 2013
Supreme Court
New South Wales
Medium Neutral Citation: Holden Francis Frisoli & Anor v Natasha Anastasia Kourea & Ors; Holden Francis Frisoli & Anor v Natasha Anastasia Kourea & Ors; [2013] NSWSC 1166 Hearing dates: 27, 28, 29, 30 & 31 August 2012, reserved on 10 September 2012 Decision date: 23 August 2013 Before: Slattery J Decision: Order for provision made in favour of the plaintiffs, such that they should each receive 25 per cent of the deceased's estate. Order for provision made in favour of the cross-claimant, such that she should receive 50 per cent of the deceased's estate.
Catchwords: SUCCESSION - Deceased dies intestate - whether cross-claimant is an "eligible person" under Succession Act, s 57 able to make a claim for family provision against his estate - cross-claimant claims to be in a domestic relationship with the deceased for at least seven years before his death - if so, whether adequate provision made for the proper maintenance, education and advancement in life of the cross-claimant - whether an order for provision should be made under Succession Act, s 59 - whether adequate provision made for the proper maintenance, education and advancement in life of the deceased's two children, the plaintiffs - whether an order for provision should be made in favour of the plaintiffs under Succession Act, s 59 - HELD: domestic relationship exists between the cross-claimant and the deceased at the time of his death and for approximately seven years before - cross-claimant an eligible person - adequate provision for the cross-claimant's maintenance, education and advancement in life not made - order for provision out of the deceased's estate made - adequate provision for the plaintiffs maintenance, education and advancement in life not made - order for provision made from the deceased's estate. Legislation Cited: Interpretation Act 1987, s 21C
Succession Act 2006, s 57, 59, 60
Property (Relationships) Act, s 5(1)
Probate and Administration Act 1898 (NSW), s 61B(3B)Cases Cited: Andrew v Andrew [2012] NSWCA 308, (2012) 81 NSWLR 656
Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Dridi v Fillmore [2001] NSWSC 319
Evans v Levy [2011] NSWCA 125
Jones v Dunkel (1959) 101 CLR 298
Re Fulop (deceased) (1987) 8 NSWLR 679
Singer v Berghouse (No 2) (1994) 181 CLR 201
Vaughan v Hoskovich [2010] NSWSC 1459
Vigolo v Bostin (2005) 213 ALR 692; (2005) 221 CLR 191Category: Principal judgment Parties: In proceedings 2010/93241:-
In proceedings 2011/280507:-
First plaintiff:- Holden Francis Frisoli
Second plaintiff:- Atlanta Lucia Carnell Frisoli
First defendant:- Natasha Anastasia Kourea
Second defendant:- Tashnat Pty Limited
First plaintiff:- Holden Francis Frisoli
Second plaintiff:- Atlanta Lucia Carnell Frisoli
First defendant:- Natasha Anastasia Kourea
Second defendant:- Tashnat Pty LimitedRepresentation: Counsel:
Claimants/Respondents:- G. M. McGrathRespondents/Claimants:- L. Ellison SC
Respondents/Claimants:- Sonia Simms, Proctor Willaws, Solicitors
Solicitors:
Claimants/Respondents:- Terence Joseph McNally, Lobban McNally Lawyers
File Number(s): 2010/93241; 2011/280507 Publication restriction: No
Judgment
Albert Frisoli died suddenly and violently on the evening of 6 May 2009 without having made a will. Two children by his former marriage survived him: a son, Holden, then aged 20, and a daughter, Atlanta, then aged 17. They now bring family provision claims against his estate under Succession Act 2006, s 59. So too does Natasha Anastasia Kourea. Ms Kourea claims to have lived in a long-standing de facto relationship with Albert at the time of his death. But Holden and Atlanta dispute her claim. This is a principal issue for trial in these proceedings.
Albert Frisoli was a builder and developer. He had structured his affairs to protect himself against financial risk in the building industry. He had few assets in his own name. Thus his estate is now small. He placed the assets he had accumulated into a trust, the Goodsir Trust and into a superannuation fund. The principal asset of the Goodsir trust was the property Albert occupied with his brother Mario in Goodsir Street, Rozelle ("the Rozelle property"). In May 2009 the superannuation fund held about $275,000. The only assets in the estate are some chattels, mainly musical instruments, worth no more than $40,000.
The parties' contest is about their competing family provision claims; not so much about the issue of intestate succession. If Ms Kourea was the deceased's de facto wife, she would be entitled to the whole of his estate: Succession Act, s 113. If not, Holden and Atlanta Frisoli would share it: Succession Act, s 127. But the estate is not of sufficient size for intestate succession to matter, more than the respective family provision claims.
Ms Kourea and Mr Holden Frisoli separately sought administration of Albert Frisoli's estate. In November 2009 Ms Kourea filed a Summons for administration, claiming to be Albert's de facto spouse. Then in March 2010 Holden countered with his own Summons for administration, as the then only adult child of the deceased, who he contended had no spouse, de facto or otherwise.
The parties sorted out the administration dispute. Ms Kourea discontinued her proceedings on a without admissions basis and consented to Mr Holden Frisoli becoming the administrator of the estate, which he did on 20 December 2010. There was other litigation between these parties in 2010 relating to the Goodsir Trust, but this too was resolved within that year.
Holden and Atlanta also allege maladministration within the Goodsir Trust. When he died Albert Frisoli was the controlling shareholder and the director of Earthloop Pty Limited, then the trustee of the Goodsir Trust. But Ms Kourea held a power of appointment under the Goodsir Trust deed. Shortly after Albert's death she exercised that power of appointment, replacing as trustee Earthloop Pty Limited with Tashnat Pty Limited ("Tashnat"), a company she controlled. She also used her power of appointment to nominate herself as a beneficiary of the Goodsir Trust. Soon afterwards she moved into the Rozelle property.
Before the Court are two proceedings. Holden and Atlanta Frisoli allege in proceedings 2010/280507 ("the Trust proceedings") that Ms Kourea and Tashnat have committed breaches of trust and fiduciary duty in their dealings with the Goodsir Trust and that Tashnat should be removed as trustee and Ms Kourea removed as beneficiary. Holden and Atlanta Frisoli also bring family provision proceedings against Ms Kourea and Tashnat, proceedings 2011/93241 ("the Family Provision proceedings"). Ms Kourea also seeks to cross-claim for family provision against Holden and Atlanta Frisoli. But her cross-claim was brought more than twelve months after Albert Frisoli's death and is out of time: Succession Act, s 58. There is a preliminary issue as to whether the Court should extend the time for bringing this claim. The Goodsir Trust also figures as notional estate in the Family Provision proceedings: both sides claim and concede that it is notional estate. All proceedings were heard together.
But the parties were agreed in final submission that the Court need not concern itself with the trust proceedings if the Court found that orders should be made in the Family Provisions proceedings. In the result this is what has occurred.
The parties are all well known to one another and addressed one another in evidence by their first names. Without disrespect to any of them, the Court will do the same in these reasons and will also often refer to the deceased, as the parties have done in evidence, as "Albert". These reasons start with a narrative of the parties' uncontentious mutual history.
Albert Frisoli, his Family and Business - Up Until Albert's Divorce in 1997
Albert was born in Italy in June 1952 and was 57 when he died. He married Susan Callaghan in May 1987. The first of their two children, Holden, was born in June 1988 and the second, Atlanta, in January 1992. Albert and Susan were married until April 1997, when the Family Court of Australia made orders dissolving their marriage.
In about the mid 1990's Albert met Natasha while they were both working for a construction firm, Wintertons. Not long afterwards Natasha began to work for Albert as an office manager/administrator in his property development and construction businesses. She continued to work for him, in that role, in those businesses, up until his death.
Natasha was born in October 1974 in Sydney and was about 20 years of age when she met Albert. She then lived with her parents, Con and Maria, and her two sisters in Sutherland Street Rosebery. She continued to maintain a bedroom and presence in her parents' house in Rosebery right up until Albert's death. The frequency and circumstances in which she spent time at her parents' property in Rosebery and at the Rozelle property became important issues in the proceedings.
After Albert and Susan Callaghan were divorced they made sensible arrangements for the future of their two children, Holden and Atlanta. She purchased a home in Sydney's inner west. At about the same time Albert purchased the Rozelle property, which was less than four kilometres from where Susan and the children were living. Holden and Atlanta visited their father frequently at the Rozelle property as they grew up. At the time of Albert and Susan's divorce Holden was nine and Atlanta was five.
It took a while to make the Rozelle property comfortable. In 2002 the Rozelle property was improved through Albert's property development business. Albert's brother Mario decided to move into the property with him. Accommodation needed also to be provided for Holden and Atlanta when they stayed. Bedrooms were added. The renovations were all completed in 2002.
By the time of his death Albert actually ran two businesses from the same offices: a property development business and a concrete services and supply business. Both were apparently profitable and were administered from an office in north-western Sydney. Natasha was employed to attend to Albert's personal, business and legal affairs. As his business personal assistant she was given access to all his company and personal bank accounts. She was formally employed by Ross Civil Pty Limited and Yatooma Pty Limited, two companies within Albert's control, as an office administrator and as Albert's private secretary.
Albert Restructures his Affairs - 1998 to 1999
In 1998 Albert commenced to re-structure his affairs. He was divorced with responsibility for two children. He had a growing business. He decided to set up a trust, the Goodsir Discretionary Trust ("the Goodsir Trust"). The trust was constituted by a deed made between Grant Edward Spedding as settlor and Earthloop Pty Limited ("Earthloop") as trustee. The Goodsir Trust was a reasonably unremarkable discretionary trust. The eligible beneficiaries under the deed were Albert, his children and grandchildren and the spouses of children and grandchildren. Neither a spouse, or former spouse, of Albert were included in the class of eligible persons under the original Goodsir Trust deed.
Shortly after setting up the Goodsir Trust Albert transferred the Rozelle property into it. That asset remained in the trust at the time of his death. Earthloop held the property as registered proprietor.
Albert undertook other property developments through the Goodsir Trust. Why he chose to pursue some developments through the trust and others through corporate vehicles is unclear. But at the time of his death he was conducting one family-related development through the Goodsir Trust. Susan Callaghan had transferred two adjoining Birchgrove properties to him. Funds had been borrowed and the Birchgrove properties were being developed. At the time of his death one of the properties had been sold to pay down development-related debt. The other property had been completed and was tenanted. The parties agreed, upon its sale it would probably return about $130,000 to the trust.
In November 1998 Albert set up another structure to provide for his future. He established the Earthloop Superannuation Fund ("the Superannuation Fund"), and made Earthloop the Superannuation Fund's trustee.
I infer that even by 1998 there was a high degree of personal trust between Albert and Natasha. He gave her a formal role both in the Goodsir Trust and in the Superannuation Fund, both entities that belonged more to his personal than his business life. But his giving this role to Natasha is also consistent with a deepening personal relationship between them. Natasha does not allege that a de facto relationship commenced until 1999. But here in November 1998 are two compelling indications of deepening trust between them.
The 2001 - 2002 Financial Transactions
Albert received approximately $70,000 from his father's estate in March 2001. He transferred all this money to Natasha. She contended that Albert had given it to her outright. Holden and Atlanta argued that she was holding it as a fund to be kept at Albert's disposal, but out of his name, so that it would not be vulnerable to attack in Family Court maintenance proceedings brought on behalf of Susan Callaghan, Holden or Atlanta.
The dispute about Albert's March 2001 inheritance does not greatly matter. Even on Holden and Atlanta's version the transaction indicates a high degree of mutual confidence between Albert and Natasha. If Albert were warehousing the funds with Natasha, he was placing them with someone with whom he had a sufficiently close relationship and in whom he had a sufficiently high degree of trust, that he could rely on her to follow his wishes about the funds.
But I prefer Natasha's evidence that this money was a gift. For reasons that will be explained below, in my view in 2001 a relationship had developed between Albert and Natasha and was by then about 3 years old. A gift of this amount to her is consistent with him having a sense of growing personal obligation to her and treating her as someone who he wanted to stay in his life. This sense of obligation was demonstrated by another event about the same time. In October 2001 Albert unconditionally assigned to Natasha, and only to Natasha, the ownership of and entitlement to his life insurance policy.
Both these events, the gift of the March 2001 inheritance and the assignment of the life insurance policy occur within 6 or 7 months of Natasha's 27th birthday. Both acts demonstrated a degree of commitment to the future, which lay well beyond the employer/employee relationship. Shortly after these events the renovation of the Rozelle property was completed and Mario and Albert moved back in.
The Last Seven Years - 2002 to 2009
Albert and Mario had lived in the Rozelle property before 2002 when it was renovated. They had moved out to allow the renovations to take place. A studio office was constructed at the back of the property to facilitate work from home. Other internal spaces were modified.
Albert's children, Holden and Atlanta, continued to visit the Rozelle property and sleep in their bedrooms there. Contests dealt with later in these reasons are: just what happened when they were visiting; whether or not they saw Natasha there, and at what times; and what she was doing in the house. Holden left school in 2005 and worked for his father in the office and doing labouring work during his university holidays from 2006 onwards.
The years 2007 and 2008 were a period continuity for Albert and Natasha. There were no changes in the fundamental relationships and interaction of the parties but for two important matters.
In 2007 Natasha took steps towards organising her wedding to Albert. But the wedding did not take place. The email evidence from that period is clear: Natasha contemplated a wedding. The evidence about this event is analysed later in these reasons. But the fact that the email correspondence was even taking place does show from Natasha's perspective there was a relationship with Albert, which she genuinely thought was capable of resulting in their marriage in the then near future. I accept Natasha's evidence as to the genuineness of this email correspondence and that it reflected contemporaneous discussions with Albert on the same subject.
In 2008 Albert quarrelled with his daughter Atlanta. The father/daughter disagreement was distressing to both of them. Atlanta wanted to leave school early. Albert wanted her to complete her schooling. The merits of this disagreement do not need to be considered in these reasons. It is not difficult to understand both their perspectives on this issue. Given Atlanta's age in 2008, the schooling issue was a matter of great personal importance to her. But these reasons later approach this issue with a longer-term perspective.
In April 2009 Albert and Natasha consulted solicitors to undertake estate planning. The planning was not complete and wills were not executed by the time he died. But his instructions to the solicitor, Mr John Buttfield and the law clerk assisting him, Mrs Sonia Simms, provide an objective professional perspective on the state of Natasha and Albert's relationship at the time he died. The contested detail in relation to these consultations is dealt with later in these reasons.
Albert and Mario died suddenly and violently. The police investigation of their deaths with a view to prosecuting their killer generated an unusual quantity of precise evidence about aspects of Albert's life, and indirectly about Natasha's life. Both parties drew upon this evidence. Most of it was generated within a few weeks of Albert's death, and much of it within the first few days.
Police were called to the Rozelle property on the morning of 7 May 2009, where Albert and Mario's bodies were found at what was declared as a crime scene. Forensic and general police investigations took place. Police statements were taken from Albert's relatives and friends. Natasha and other family members were at the police station for many hours on the 7 May 2009.
About a week after Albert's death police conducted a "walkthrough" of the Rozelle property with each of Natasha and Holden. During this walkthrough they explained to police, whilst being filmed, the functions of various parts of the Rozelle house, what was kept within these parts of the house and about Albert's use of the house. The Court was invited to undertake its own comparison of what Holden and Natasha said on these films in addition to the oral evidence that each of them gave.
Other relevant contemporaneous evidence was generated from non-police sources. Parties also tendered a DVD record of a video taken of Albert's funeral. The suddenness of his death generated sympathy cards and other documents associated with arrangements of his funeral, some of which were in evidence and were referred to in submissions.
Applicable Legal Principles - De Facto Relationships
Natasha claims to have been a de facto spouse of Albert at his death and for a continuous period of two years up to his death. These reasons find that Natasha was in a de facto relationship with Albert at and before his death. Resolving this issue determines (1) Natasha's rights on Albert's intestacy; and, (2) her eligibility for family provision out of Albert's estate. This section of these reasons states the law relevant to these two matters. The remaining legal principles relevant to consideration of her claim for family provision and the claim of Holden and Atlanta are stated later in these reasons.
Succession and family provision legislation changed between 2006 and 2010. Albert's death on 6 May 2009 means that Natasha's and the children's rights on intestacy are determined under the (now repealed) provisions of the Probate and Administration Act 1898 (NSW), s 61B(3B), which deals with intestate succession, where the intestate leaves a de facto spouse issue, but no spouse. But the respective family provision claims must be determined under Succession Act, Chapter 3.
The provisions of Probate and Administration Act, s 61B(3B) are best understood by examining the full text of ss 61B(1) to (3B) which is as follows:-
"61B Succession to real and personal property on intestacy
(1) Where a person dies wholly intestate, the real and personal estate of that person shall, subject to the payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate, be distributed or held in trust in the manner specified in this section, and the real estate of that person shall be held as if it had been devised to the persons for whom it is held in trust under this section.
(2) If the intestate leaves a spouse but no issue, the estate shall be held in trust for the spouse absolutely.
(3) If the intestate leaves a spouse and also leaves issue, then if the value of the estate (excluding any household chattels) does not exceed the prescribed amount, the whole estate shall be held in trust for the spouse, but if the value of the estate (excluding any household chattels) exceeds the prescribed amount, then:
(a) the household chattels (if any),
(b) the prescribed amount, and
(c) one-half of the estate (excluding any household chattels and the prescribed amount), shall be held in trust for the spouse and the residue of the estate shall be held in statutory trust for the issue of the intestate.
(3A) Notwithstanding subsections (2) and (3), if the intestate leaves a spouse and a de facto spouse, the whole or, as the case may be, such part of the estate of the intestate as is required to be held in trust for the spouse of the intestate shall be held in trust for:
(a) where the de facto spouse was the de facto spouse of the intestate for a continuous period of not less than 2 years prior to the death of the intestate and the intestate did not, during the whole or any part of that period, live with the person to whom the intestate was married-the de facto spouse, or
(b) in any other case-the spouse.
(3B) Notwithstanding subsection (3), if the intestate leaves a de facto spouse and also leaves issue but no spouse, the whole or, as the case may be, such part of the estate of the intestate as would, if the intestate had left a spouse, be required to be held in trust for the spouse of the intestate shall be held in trust for:
(a) where the de facto spouse was the de facto spouse of the intestate for a continuous period of not less than 2 years prior to the death of the intestate-the de facto spouse, or
(b) in any other case:
(i) except as provided by subparagraph (ii)-the issue as if the intestate left no spouse, or
(ii) where the intestate leaves no issue being children of the intestate or where such of the issue as are children of the intestate are issue also of the de facto spouse-the de facto spouse."
The relevant effect of Probate and Administration Act, s 61B(3B) is that if Natasha can establish she was Albert's de facto spouse for not less than two years, then she will take his estate. But otherwise Holden and Atlanta will take the estate. Natasha submits that there was a continuous de facto relationship for at least two years until May 2009. Holden and Atlanta say there was not. The real contest was whether there was a de facto relationship at all, not whether it exceeded two years. It is convenient to decide the questions raised by Probate and Administration Act, s 61B (3B) at the same time as determining whether Natasha and Albert were in a "de facto" relationship for the purposes of assessing her eligibility to claim for family provision.
"Eligible Person" Succession Act, s 57
For an order for provision to be made under Succession Act s 59 in favour of an applicant, the Court must be satisfied that the applicant is an "eligible person" within Succession Act, s 57. Natasha claims to be an "eligible person". Succession Act s 57 provides:-
"Section 57 Eligible persons
(1) The following are "eligible persons" who may apply to the Court for a family provision order in respect of the estate of a deceased person:
(a) a person who was the wife or husband of the deceased person at the time of the deceased person's death,
(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death,
(c) a child of the deceased person,
(d) a former wife or husband of the deceased person,
(e) a person:
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death."
Holden and Atlanta both qualify as eligible persons under Succession Act, s 57(1)(c). Susan Callaghan would also qualify under Succession Act, s 57(1)(d) but she did not bring a claim. Special considerations are applicable to persons claiming eligibility under Succession Act, s 57 (1)(e) and (f). Although the Court finds that Natasha qualifies under Succession Act s 57(1)(b), the alternative avenues to qualification as an "eligible person" under s 57(1)(e) and (f)are briefly considered below, as well.
For the purposes of Succession Act, s 57 "de facto relationship" is defined in section 21C of the Interpretation Act 1987, which provides as follows:-
"(1) Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if:
(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or
(b) the person is in a de facto relationship with the other person.
(2) Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a "de facto relationship" with another person if:
(a) they have a relationship as a couple living together, and
(b) they are not married to one another or related by family.
A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.
(3) Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of their common residence,
(c) whether a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.
(4) Meaning of "related by family" For the purposes of subsection (2), 2 persons are "related by family" if:
(a) one is the child (including an adopted child) of the other, or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or
(c) they have a parent in common (including an adoptive parent of either or both of them).
(5) Subsection (4) applies:
(a) even if an adoption has been declared void or is of no effect, and
(b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children.
(6) Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order. "
Interpretation Act s 21C(3) spells out: that no finding in respect of any of the matters in the sub-section is to be regarded as necessary for the existence of a de facto relationship; and further, that a Court determining whether a de facto relationship exists is to have regard to all the circumstances of the relationship and is entitled to have regard to such matters and to attach such weight to any such matter as may seem appropriate to the Court in the circumstances.
In the alternative Natasha advances her claim on the basis of Succession Act, s 57(1)(e) and (f), which provisions raise special considerations.
Dependence on the Deceased - Succession Act, s 57(1)(e)
Natasha also submits that she is an "eligible person" under Succession Act, s 57(1)(e). She says that she was a person who was at a particular time "wholly or partly dependent upon the deceased person [Albert]". She submits that she was partly dependent on Albert for a substantial period prior to his death. She also claims to fulfil the cumulative requirement in Succession Act, s 57(1)(e)(ii) of being then (at the time of her dependence), or at other times "a member of a household of which the deceased person was a member."
Close Personal Relationship - Succession Act, s 57(1)(f)
Natasha alternatively claims she and Albert had a Succession Act, s 57 (1)(f) "close personal relationship" other than a de facto relationship. The elements of what qualifies as a "close personal relationship" are not defined in the Succession Act itself.
In the absence of a statutory definition of the concept of "close personal relationship" case law has developed interpreting predecessor legislation In Dridi v Fillmore [2001] NSWSC 319 at [102]-[104] Macready AsJ considered the elements that need to present in order for two people to be considered to be in a "close personal relationship" as then defined under a similarly structured but slightly differently worded Property (Relationships) Act, s 5(1), which then used language "a close personal relationship between two adult persons...living together, one of whom provides the other with domestic support and personal care". In Dridi v Fillmore, Macready AsJ said:-
"I have earlier referred to aspects of what the Act describes as a "close personal relationship". It has to be between two adult persons who are "living together". Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a "de facto relationship" concepts relating to a "couple" are not relevant. Instead the definition calls for two different links. The first is that the parties are "living together". The second is that "one or each of whom provides the other with domestic support and personal care".
So far as the first requirement is concerned we are not concerned with concepts applicable to couples; the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be sharing of food or eating arrangements together. In the present case this is not important, as it seems that the parties ate together when they were both at home.
The second requirement is cumulative. There must be both domestic support and personal care. In this case there is evidence of domestic support as the defendant provided for the plaintiff free accommodation and meals, which he cooked for the plaintiff when the plaintiff was at home. There are other matters, not present in this case, which could be domestic support, eg shopping for both parties, washing clothes etc."
There are differences between the statutory definition of "close personal relationship" between Property (Relationships) Act, s 5(1) and Succession Act, s 57(1)(f). But because of the Court's findings below they are not of central significance in this case.
A common point in all the challenges to Natasha's alternative claims is her and Albert's living and residential arrangements. The point arises in deciding: not only, whether in her claimed de facto relationship they had "common residence" (Interpretation Act, s 21C(3)(b)); but whether in her claim of partial dependence she "was a member of a household of which the deceased person was a member" (Succession Act, s 57 (1)(e)(ii)); and whether Natasha was "a person with whom [Albert] was living in a close personal relationship" (Succession Act, s 57(1)(f)).
De Facto Relationship or Not?
The primary issue is whether Natasha and Albert were in a de facto relationship at in the years before his death. The Court concludes in this section of these reasons that they were in a de facto relationship and that their relationship existed, as Natasha claims, from 1999 up until Albert's death in May 2009.
This issue was strongly contested. Each side advanced a substantial body of evidence about the issue. The Court finds a de facto relationship for a number of reasons, which may be generally expressed in introduction: Natasha's evidence on the issue is credible and is mostly accepted; the witnesses she called were also credible and their evidence is accepted; objective facts and contemporaneous documents point towards the existence of a de facto relationship; and the witnesses whose evidence would contradict the conclusion of a de facto relationship generally had only limited opportunities to observe Natasha and Albert in the way in which they lived out the de facto relationship, which Natasha describes. These issues are analysed in more detail in these reasons. But consideration of Natasha and Albert's relationship requires an introduction to the subtleties of the life they made for themselves.
One Relationship, Two Lives
Natasha and Albert's relationship presented a different face to different observers. The ambiguity in the appearance of this relationship was not entirely accidental. It suited Albert for a long time to leave his and Natasha's life in a state of ambiguity: presenting to his children and family what seemed essentially to be a business relationship, with Natasha but one overlaid with personal friendship and intimacy. But Albert and Natasha presented to a small group of friends gathered through their work, that they were a couple committed to one another for life. Indeed that Natasha and Albert moved between these two worlds is the only reasonable way to explain all the evidence, adduced on both sides from essentially genuine and reliable witnesses, who were not attempting to distort their individual accounts of what they saw.
Ambiguity in this relationship suited Albert. He did not have to confront his old family with a new relationship. Meanwhile, he could carry it on. Natasha went along with this principally because of her affection for Albert. She fought against this ambiguity to a degree. I accept his children's evidence that she would place her hand on his, or on his shoulder, in front of them. But he did not push her away or humiliate her in that environment: he just contrived, sometimes simply by moving away, to ensure that her displays of affection did not develop too far in front of his children, or their friends. I infer he knew they would not be comfortable with that.
The fact such gestures of affection were at least on partial display to Albert's family members, raised for Holden some suspicions that there may have been something more between Natasha and his father. These gestures of affection support Natasha's case there was a de facto relationship between them. A woman whose place in Albert's life was merely that of his personal assistant was unlikely even to attempt to approach him in this way. This was perhaps her way of gently pushing him towards a decision to formalise their relationship, for that is what she wanted.
But Natasha was uneasy about this ambiguity. The solicitor's evidence shows that she wanted it formalised. But she explained, and I accept, that her Greek heritage pressed upon her and governed how she was expected to live. She could not agree to live with Albert full time, as man and wife, until she was married to him. So she stayed at her parents' home about four nights of the week. This saved face for her. But it also meant that the two worlds of Albert's and Natasha's life rarely intersected.
Albert clearly found Natasha's company congenial: they went on holidays together; he trusted her judgment at work and her choice of his home finishes and furnishings; she stayed overnight about three nights a week at the Rozelle property. She continued as his personal assistant for the whole period of the claimed relationship from 1999 to 2009. Their congeniality is as much perhaps to be inferred from the evidence that was not adduced as the evidence that was. There was no evidence from anyone, on either side of the case of any unpleasantness or disagreements between the two of them. I infer that Albert wanted Natasha to continue in his life but the question is with what degree of intimacy and with what degree of mutual commitment.
These general observations must now give way to examination of each of the matters to which Interpretation Act, s 21C(3) directs the Court's attention in deciding whether there was a de facto relationship. Nine indicia of a de facto relationship are identified in Interpretation Act 1987, s 21C(3): (a) duration of the relationship, (b) nature and extent of common residence, (c) whether a sexual relationship exists, (d) financial dependence and support, (e) ownership use and acquisition of property, (f) degree of mutual commitment to a shared life, (g) care and support of children, (h) performance of household duties, (i) reputation and public aspects of the relationship. They all have some relevance to this particular claimed relationship. The Court will now deal in turn with the contests about each of them.
(a) Duration of the relationship - Interpretation Act, s 21C(3)(a)
Natasha claims a de facto relationship lasted for ten years, from 1999 to 2009. For several reasons I doubt this is correct. Most of the witnesses that Natasha called in her case depose to a relationship after Albert moved into the renovated Rozelle property in 2002. In 1999, Natasha was only a new 25 year old employee at Albert's business. It is improbable that she immediately entered into a de facto relationship with him. The evidence of this early period of their relationship is relatively scant. But it can be expected that their relationship would have developed over time. But I accept that by about the time he moved back into the completed Rozelle property in 2002, it had developed and established a pattern of the kind that I have found existed at Albert's death.
The length of the relationship, whatever its character, is an important factor in Court's finding that there was a de facto relationship. When Albert and Natasha go to see lawyers for him to make a will in April 2009 his preparedness to describe their relationship as "de facto" comes in the context of knowing Natasha for 16 years and being in a sexual relationship for at least 10. The case is also remarkable for the fact that there is no interruption in the relationship and there is no evidence of Albert having any other close female friendships or sexual partners in the period. The length of the relationship in these circumstances is of considerable significance in the Court's judgment.
(b) Nature and Extent of Common Residence - Interpretation Act, s 21C(3)(b)
The ambiguity in Albert and Natasha's relationship is most starkly illustrated by the contradictory evidence about their common residence. Upon analysis though the evidence generally can be reconciled.
Holden and Atlanta's case places considerable emphasis on Natasha's police statement made on 7 May 2009 (paragraph 3), in which she said she lived at " [Rosebery - address not published] with my mother Maria and my father Con". Atlanta and Holden submitted that this meant there was no common residence.
This statement does not undermine Natasha's case for two reasons. First, the introductory words of the police statement make her declaration of status in relation to Albert quite clear. She said "I am the de facto partner of Albert Frisoli". This statement actually shows Natasha's frankness. It expressed her genuine belief that she was in a de facto relationship but made clear the ambiguity the Court has discussed - that her personal residential address should be regarded as being in Rosebery.
Secondly, when Natasha was saying "I live" at the Rosebery address she was not attempting to tell the police where the de facto relationship was conducted. She was making clear where the police could find her. In the very same paragraph she is declaring that she and Albert - "were a couple since approximately 2000". She regarded herself as nevertheless attached to a common residence, the Rozelle property, which I find she was involved in renovating, and in which she entertained friends and stored personal items. The law already recognises that event when less then a majority of a person's time is spent at one residence that may be sufficient for a finding of "common residence": Vaughan v Hoskovich [2010] NSWSC 1459.
Another feature of common residence is using a common email address. Holden and Atlanta challenged that a common email address was used. The police evidence and that of Mr Dassakis supports the conclusion, which I draw, that the deceased did use the same email address as Natasha.
The parties also contested the significance of solicitors' correspondence sent to different addresses. I do not regard this issue as particularly significant. The police statement indicates that Natasha was quite prepared to say that she lived with her parents at Rosebery, although she had a de facto relationship with a man living in Rozelle. That was how she viewed the relationship. In those circumstances, how the parties directed their correspondence is hardly likely to be decisive in determining whether there was a de facto relationship or not. There was a mixture of correspondence sent to their business address, to Rozelle, and to Rosebery which in my view shows no clear pattern.
Similarly, I do not place great weight on the October 2008 bail application form which gives Natasha's address at Rozelle. She was charged with fraudulent conduct arising out of a disputation arising between Albert and his business partner: charges that were not pursued. But when she obtained bail on those charges in October 2008 the Rozelle address was given. But these allegations were closely connected with Albert's affairs. He was closely interested in Natasha's joint interests at the time. There were many reasons why the Rozelle address would have been given in such circumstances, none of which have much bearing on the determination of the existence of a de facto relationship.
The starting point is Natasha's May 2009 police walk through. Quite apart from the way the walk-through demonstrates Natasha's intimate knowledge of Albert's bedroom - discussed in the next section - it also shows her easy familiarity with the rest of the Rozelle property, which indicates that Natasha lived there several days a week. This can be illustrated from many different parts of Natasha's walk-through. I accept her descriptions in this walk-through of her habits around he household as honest and accurate. Natasha talked about cleaning fortnightly all rooms in the house, including Mario's areas. She is readily familiar with Albert's brother's Mario's shoes, habits, internet plans and laptop. She is familiar with informal casual matters such as where were Mario used to regularly smoke, household storage arrangements, the household relationships with neighbours, the passage of storm water on the property, the outbuildings, the kitchen, the uses of a spare "junk drawer", and family habits about house keys and window locks. In my view this material showed Natasha to be thoroughly familiar with the operation of the whole household.
(c) Whether a Sexual Relationship Exists? - Interpretation Act, s 21C(3)(c)
Did Albert and Natasha have a sexual relationship? I accept her evidence that they did. Her evidence on this issue was credible and was not displaced under cross-examination. Counsel for Holden and Atlanta did not contest that there might have been a casual sexual relationship at some time in the past but contended that it did not have the characteristics of regularity and continuity, which Natasha claims.
I do not accept Holden and Atlanta's contentions as to this matter. In addition to Natasha's convincing evidence on this subject, there are many indications, of the continuity of such an intimate relationship. Even the small number of her possessions found in Albert's bedroom after his sudden death, indicate current intimacy up to that day: a hairbrush, a bottle of Chanel No. 5 perfume, a wig stand, a red bathrobe, and a toothbrush - all Natasha's - are not evidence of a merely casual sexual relationship. They point to overnight stays of sufficient regularity that personal convenience required her to leave a few items, for personal grooming and comfort by his bedside.
Moreover, Natasha showed easy familiarity with Albert's bedroom and household arrangements in the May 2009 police walk-through. Observing her in the witness box and in the walk-through DVD, she showed an unfeigned mastery of the arrangement, functions, contents, history and quirks, of various parts of Albert's bedroom. She was able to answer questions about this room both to the police in the DVD and to the Court with unforced familiarity with her subject. She was as well acquainted with Albert's bedroom as one would expect an intimate partner to be.
Atlanta and Holden both said Albert's bedroom did not have "a woman's touch". They were quite right about this. It was dominated by Albert's clothes and belongings. It showed few signs of the style, of the softness, of the subtlety, and of the neatness associated in common opinion, and in Holden and Atlanta's submissions, with "a woman's touch". Natasha was only there three days a week. She did not control Albert's bedroom. But she knew it well.
There are many examples of this in Natasha's police walk through. Natasha identifies a bottle of Dermalogica, a toothbrush, a red bathrobe and perfume which I accept were all hers, and which were in Albert's bedroom and bathroom area. I accept her oral evidence supported by what was in the walk-through that these were all items of hers. The walk-through shows her identifying these items without the slightest indication of artifice or hesitation. Natasha was very familiar with odd things in Albert's bedroom such as the contents of the green bag in the bottom of the wardrobe. She identifies jewellery given to him. She could explain the cupboards in the bedroom that she can regularly access and the ones that she cannot access. All of this shows in my view a powerful case of intimate and longstanding knowledge of Albert's bathroom and bedroom area in the Rozelle property.
There are text messages between Albert and Natasha suggesting a level of intimacy that is only consistent with a sexual relationship. There are several of these messages. One of them alone would be enough to conclude a sexual relationship existed. One of those messages related directly to sexual activity but most of them contain messages of endearment or love from Albert especially during the period 2006-2008. Quite apart from the inferences one might draw about a sexual relationship, these text messages are completely incompatible with Holden and Atlanta's case: that Natasha was Albert's personal assistant at his business and, that apart from perhaps some sexual encounters there was no special relationship between them. In my view there are strong evidence of a deeper relationship between these two parties.
Holden and Atlanta challenged these text messages two other ways. They point to the fact that many of them are quite banal. That is true. But all that shows is that mundane domestic tasks still needed to get done within what was a loving relationship.
Holden and Atlanta also submit that lack of public affection between Albert and Natasha is some evidence of lack of a sexual relationship. The issue of public affection is generally dealt with elsewhere in these reasons. But I would observe at this point that the fact that some of the witnesses called on behalf of Holden and Atlanta, such as Charlotte Cotes, did not observe affection between Albert and Natasha is not particularly persuasive of the absence of a bond of affection. The situations in which Charlotte Cotes, a friend of Holden's, would see Natasha were mostly situations in which Holden and Atlanta were present. These in my view are precisely the situations in which Albert was determined to maintain the ambiguity of his relationship with Natasha. And some people are simply less observant than others. Albert's sister Margret White saw he and Natasha holding hands and understood that they were "in some sort of relationship". Again this is incompatible with Holden and Atlanta's case that Natasha was a business assistant.
Holden and Atlanta point out the absence of Natasha's parents to support her case of overnight stays with Albert. They asked the Court to draw a Jones v Dunkel (1959) 101 CLR 298 inference against Natasha's case for her not calling her parents, Con and Maria Kourea, at the trial. They would be likely be able to give relevant evidence about whether Natasha stayed overnight with Albert in Rozelle, away from the family home. Medical certificates were sought to be tendered on the last day of the hearing to explain their absence from giving evidence. But this evidence was too late and was not in proper form to allow the medical evidence to be tested. The Court rejected this tendered medical evidence.
Natasha provided no explanation for the failure to call Con and Maria Kourea. Some reluctance on her part to do so is understandable. I draw a Jones v Dunkel inference against Natasha that their evidence would not have assisted her case. But despite that inference, accept Natasha's evidence and the other evidence to similar effect, that she was staying at the Rozelle property on average about three nights a week, and that a de facto relationship existed between them.
Holden and Atlanta's case also criticised Natasha's failure to call her sisters to support her case. But Natasha's older sister was married and living away from Rosebery after 2002. The younger sister may have been there for most of the relevant period. But I still accept Natasha's evidence, which I find compelling even in the absence of the younger sister. There is far less significance in Natasha's case not including Albert's business associates and other professional persons with whom the couple had contact. They are not persons who would generally be expected to be called in Natasha's case.
(d) Financial Dependence and Support- Interpretation Act, s 21C(3)(d)
There is a strong early financial indicator of a de facto relationship between Albert and Natasha: he assigned his life policy to her in October 2001. This was an important statement of his preference that Natasha would benefit from his accumulated wealth upon his death. Such an act is not consistent with an attitude on his part then that there was only a casual relationship between them.
But the evidence of financial support and interdependence between them is strong in other ways: Albert paid the legal fees in the Apprehended Violence Order (AVO) proceedings in which she was involved and the other legal proceedings in which they were mutually involved; Albert gave Natasha his share of Albert's father's estate, worth about $61,000; Natasha gave Albert access to her credit card and a supplementary credit card; from November 2003 Natasha was covered by Albert's private health insurance; and Natasha was included in the home and contents policy for the Rozelle property. But the earliest of these signposts of interdependence and support are the most persuasive.
Holden and Atlanta's case seeks to challenge these findings in a number of ways that I do not find persuasive. They suggest that the life policy may still have been owned by Albert; an inference which may arise from one of the forms Natasha filled out with Mr Buttfield and Mrs Simms at Proctor Willaws. But the short answer to this is that Holden has not sought to make the life policy of the estate and the benefit of it was paid to Natasha without protest on anyone's part.
Holden and Atlanta's case sought to explain Albert's payment of the AVO and related legal expenses as "work related", and which any employer would be expected to pay. Albert was being threatened by a business associate that is why he took out the AVO. But Albert was underwriting all legal expenses to protect Natasha not just at work, but wherever she was and by reason of her personal association with him. He was discharging more than just an employer's duty.
Atlanta and Holden's case is somewhat dismissive that Albert having a supplementary card to Natasha's credit card account was just to "keep his spending down". But that submission misses the subtle significance of this arrangement. In a simple employer - employee relationship one might expect the employer to have the primary credit card and the employee to have the supplementary card and that the supplementary card will be used principally for employment-related expenses. But Natasha and Albert's arrangement was curiously reversed; indicating in my view that Albert was quite content for Natasha to rein in his expenditure and exert a degree of wifely restraint upon spending excess on his part. The arrangement also shows they have thoroughly mixed much of their daily expenditure.
Holden and Atlanta's case also dismisses the fact that Natasha was covered on Albert's private health insurance, as merely being something that Natasha had organised. But Albert acquiesced in this arrangement, writing to HCF in November 2003 seeking to remove Susan Callaghan from the HCF policy and to replace her with Natasha and authorizing Natasha to have full access to his HCF account. This goes well beyond the employee - employer relationship. It is not unknown for employers to include the payments of employees' health insurance as part of a salary package. But here Albert was adding Natasha to his own health insurance in place of his former wife. This is not a matter to be lightly dismissed in my view.
There was debate between the parties about the significance of Natasha's inclusion in the GIO home and contents policy for the Rozelle property. But in my view this was not a matter of clear significance either way in the debate between these parties.
(e) Ownership, Use and Acquisition of Property - Interpretation Act, s 21C(3)(e)
Natasha and Albert's ownership, use and acquisition of property is not to be explained merely by her working relationship with him as his personal assistant. An employment relationship would account for the joint use of information and property associated with his work and a degree of mutual access to personal information. But the way that Albert and Natasha dealt with property went well beyond this.
Albert gifted a car to Natasha in 2002. Whilst that may in part have been convenient to assist her to get around for work-related purposes, I accept her evidence that it was a gift not solely related to her work. This conclusion is not displaced in my view by the fact that the car was registered in Albert's name.
Natasha made purchases for Goodsir Street. She purchased a number of household appliances, furnishings and other items for the Rozelle property. Holden and Atlanta's case sought to characterise these purchases: as Natasha merely carrying out her interior design duties in relation to this property, an aspect of her work in Albert's business that was relevant to a number of his property developments.
But she made clear in her evidence, for reasons that I accept, that the choices she made for the Rozelle property were not just work related. In particular I accept her oral evidence that she was not always reimbursed for expenditure on things like household appliances and furnishings. This represented a degree of domestic pooling of financial resources, as well as improvement to the domestic property.
(f) Degree of Mutual Commitment to a Shared Life - Interpretation Act, s 21C(3)(f)
Did Albert and Natasha have a mutual commitment to a shared life? The strongest evidence of this was the evidence of Mr Buttfield and Ms Simms. But the Court also accepts the lay evidence on this subject adduced in Natasha's case. The lay evidence is dealt with in relation to the reputational and public aspects of the relationship. I will deal with the solicitors' evidence first.
Albert consulted solicitors about making a will on 9 April 2009, about a month before he died. He never executed that will. But I accept that in that intervening month he and Natasha were sending to the solicitors the information requested from the first interview. That process, and I infer a degree of reluctance to make a will that excluded Atlanta, explain why the will was not made during that fairly short period.
Mr Buttfield and Mrs Simms gave detailed evidence about their joint consultation with Albert and Natasha on 9 April 2009. Their evidence was a plausible and compelling description of these consultations. Mr Buttfield and Mrs Simms: took detailed notes of their consultation; gave appropriate advice to their clients; approached their retainer task thoroughly and with attention to detail. And finally and most importantly, both Mr Buttfield and Mrs Simms had a clear actual recollection of their interaction with Albert and Natasha in April 2009. Their recollection drew upon their clearly remembered experience of a colourful and interesting client. Their account, which I accept, was that Albert and Natasha stated they were then in a de facto relationship and intended to marry.
Mr Buttfield was criticised in cross-examination for not seeing Albert separately: to ascertain independently of Natasha whether he was under any current pressure from her to state that they were in a de facto relationship. But that criticism is not justified. Mr Buttfield had been admitted into practice as a solicitor in 1971, was widely experienced and was an accredited specialist in wills and estates since 1996. He was plainly very competent in this field. By the time of their consultation Mr Buttfield had already given sufficient warning to Albert and Natasha such that they were both well equipped to decide to see him separately, if they had wished to do so. Moreover, there was nothing in what Albert and Natasha said to Mr Buttfield that raised any basis to doubt in his mind they were in a de facto relationship.
Mr Buttfield met Albert and Natasha on 9 April 2009. Mr Buttfield had a standard practice of sending or providing to clients a will instruction form before such estate planning conferences. Albert had partly completed this instructions form before the conference.
With the assistance of Mrs Simms, Albert filled out the will instruction form at the office before seeing Mr Buttfield. The form described Albert as a divorced builder born in Italy on 1 June 1952 and living at the Rozelle property. The will instruction form provided for clients to provide information about "your spouse/partner's details". In that section Natasha's name, date and place of birth and her occupation as an office manager were filled out. But it was quite clear from this form that her residential address was different from his, it was the Rosebery property where she lived with her parents.
Although a common work telephone number was given for Albert and Natasha, the different addresses on the form led Mr Buttfield further to question Albert in the conference. He had doubts about the nature of the relationship, because of the different addresses, so he went further. He says, and I accept, that he had the following conversation with the couple together:-
"Mr Buttfield: I don't wish to be prying but are you a couple? We need to know the status of your relationship?
Albert: De facto, we're a de facto couple"
My acceptance of this conversation largely neutralises another debate between the parties. Holden and Atlanta's case suggested that Natasha was the one who filled out the instructions sheet under the heading "Your spouse/partner's details" giving her name as partner. I accept that she filled in the form. But it is clear from the conversation between Albert and the two solicitors afterwards that he fully adopted what she had done.
Mr Buttfield discussed a number of issues with Albert and Natasha. Not all of them require elaboration. Albert described his affairs as "complex" and pointed out that he had a number of companies and a trust. I accept that he explained to Mr Buttfield "I don't have much else, just the house at Rozelle, its in the Goodsir Trust. Natasha will control the Trust when I die".
Mr Buttfield approached the question of Albert's will. I accept Mr Buttfield's evidence that Albert said to him, "I don't want to leave anything to my daughter". I also accept Mr Buttfield's evidence that he then warned Mr Frisoli that if he omitted Atlanta from his will that she may be able to make a family provision claim after his death, which could have an impact on the estate. Upon Mr Buttfield's further questioning I accept that Albert gave a number of reasons for wanting to exclude Atlanta. But his reasons were not very adequate. They struck Mr Buttfield that way. Albert complained about minor issues of Atlanta being rude and unpleasant to him at times. I accept Mr Buttfield gently sought to steer him in the conversation towards the idea that Atlanta would not always be a teenager and pointing out to him that there was the potential for change "as she gets older".
But Albert was not ready to move on this issue just yet. Mr Buttfield suggested he write a statement about his reasons for wishing to exclude her and correctly suggested that leaving her a legacy "may be preferable to nothing at all". Mr Buttfield says that he explained, and I accept, that indeed he said "I advise that in the event that [Atlanta] did make a claim against the estate that it would be helpful if there would be a document in existence that was held with the will, that it detail the reasons why she was being excluded and this document would only be produced in the event of litigation, we are going to need to get a statement from you as to why you are excluding Atlanta from your estate. Can you please put this together? We need the reasons why you wish to exclude your daughter and we will store it with the will". I accept that Albert agreed to do this.
But there is no evidence that Albert did anything about drafting such a statement. Whether this was a product of him being too busy to deal with issues relating to the will or whether he found it hard to draft a statement giving reasons for excluding Atlanta is now difficult to unravel. I infer though that it was the latter. Natasha continued to correspond with Mr Buttfield's office, providing information to assist him in completing the will, without any apparent opposition from Albert. I infer Albert was content with the progress being made in this direction, even though he was not making progress with his own written statement about Atlanta. There is nothing in my view, in what Albert said to Mr Buttfield that gave the slightest reason to doubt the appropriateness of Mr Buttfield's reaction to what Albert was telling him about his father/daughter relationship with Atlanta: Albert was simply going through a temporary phase of having difficulty in dealing with a teenager. There is no reason to see on this evidence any indication of a longer-term difficulty in this father/daughter relationship.
Some of Albert's instructions to Mr Buttfield support other inferences that the Court draws in the case. For convenience they are mentioned in this context. I accept that Albert indicated to Mr Buttfield that he wanted Natasha to be his executor, and if she pre-deceased him, for his accountant to be his executor. Moreover, acting on his then view that he would exclude Atlanta from his testamentary intentions he also said he wanted his estate to be divided "equally between Natasha and Holden". He wished the share capital of his company, State Concreting, to be divided equally between Natasha and his employee, "Joe".
Holden and Atlanta's case makes the point that Albert did not go ahead and execute a will in accordance with these instructions. But in my view the circumstances in which these instructions were given strongly point to them being genuine contemporaneous views of his then testamentary intentions. Albert's subsequently not executing a will seemed more to be a product of his dispute with Atlanta than explained by him changing his mind about benefiting Natasha. Nothing in the evidence supports the view that his testamentary intentions about Natasha changed between the meeting with Mr Buttfield and Ms Simms and his death.
Albert had a preference that Holden not take his share in the estate until "he turns 33" on the basis that he needed, as Albert explained "to make his own life first". This wish seemed to be founded on Albert's own life experience rather than any special need of Holden's: as Albert explained to Mr Buttfield "I didn't have anything early and I don't want him to. I want him to work first".
The estate planning session went for about an hour. I accept Albert ultimately ran out of time on this occasion. Mr Buttfield, Mrs Simms and Natasha all give similar evidence, which I accept, that Albert needed to meet another pressing appointment and left. He declined Mr Buttfield's offer of making a temporary will as he could not wait another hour for a temporary will to be prepared for execution.
Mrs Simms commenced drafting for Albert, a will which generally reflected the instructions he had given at this conference. It was never executed. Both Mr Buttfield and Mrs Simms were challenged about whether the joint conference was placing any pressure on Albert to go along with the idea that he was Natasha's de facto spouse. But their evidence gave a striking contrary impression. Far from Albert being under pressure, they both had a recollection, which I accept as accurate, that Albert was keen to marry Natasha. Nor did Mr Buttfield and Mrs Simms detect any reluctance on Albert's part in the will making process. I accept they detected no such reluctance. There was none present.
Strong degree of mutual commitment to a shared life can be inferred from another curious factor in this case. In 2006 Albert was receiving threats from his former business partner which was sufficient for him to take out an AVO. I accept Natasha's submission that this was an important moment in which she could have chosen to put some distance between herself and Albert but she decided not to do so. Finding a job somewhere else was one solution for her to avoid a personal safety problem presented by these threats. Instead what happened was Albert underwrote her legal fees to pursue her own AVO. I infer from this conduct a mutual commitment to a shared life that withstood quite testing external threats.
The parties were in contest about the extent to which there was an engagement between Natasha and Albert and whether they had made any wedding plans. As to the engagement, Holden's and Atlanta's case was that there may have been a ring but whether it was an engagement ring was difficult to say and there did not seem to be a traditional engagement announced to a number of people. Holden and Atlanta also point out that the only evidence that Natasha can produce is of resetting of this ring rather than of its purchase. But I accept Natasha's account that there was an engagement. The problem was that she did not feel that she could readily tell her parents, and Albert did not want to share that news with his children. Albert and Natasha were not a young couple meeting for the first time with no prior relationships. The difficulties for both of them in publicising the engagement could be understood.
Albert and Natasha did have wedding plans. Email correspondence between Natasha and the Wedding and Group Sales Executive at Hayman Island in March 2007 established the plans were reasonably well developed, at least on Natasha's part. I accept her evidence that these were genuine enquiries made more than 2 years before Albert died in a period where he is sending her affectionate text messages. Albert had access to the email account from which the messages were being sent. The wedding did not proceed, partly in my view because Albert was simply not ready for that kind of formality, more than any other reason. Natasha's keenness on marriage must have been obvious to Albert who did not deal with it by seeking to terminate the relationship. In my view he accepted that this was an issue that would have to be negotiated further into the future in their relationship.
(g) Care and Support of Children - Interpretation Act, s 21C(3)(g)
Issues concerning the care and support of children between Natasha and Albert fall into two baskets: care and support for Albert's children, Holden and Atlanta, and their plans to have their own children. The first of these baskets was more contentious than the second.
Natasha claimed a role in caring for Holden and Natasha. Some of this role was consistent with being Albert's personal assistant. Albert was a busy divorced man with commitments for the care of his children. He had not re-married. He had not employed a carer to help him fulfil his role as father during his periods of access. He asked Natasha to help him meet some of his fatherly obligations.
Natasha placed no boundaries on what she would do for Albert's children. The range of the tasks Natasha undertook for Holden and Natasha indicate this. This is a key factor in the analysis here. One would expect a personal assistant would not submit to being "on call" with respect to a wide variety of personal tasks associated with her employer's children.
But the extent of what Natasha did for Holden and Atlanta was nevertheless contentious. Despite their denial and that of other family members, I accept her evidence that she took them to the Easter show to stand in for Albert doing so. It is something she is more likely to remember than they would. I accept this part of her evidence as part of the fabric of her general credibility, which is established. This is a matter on which the evidence of other family members was mistaken.
Natasha wanted to have children with Albert. The extent to which this was a mutual desire is rather less clear. In the first few months of 2009 Albert felt somewhat scarred by aspects of his relationship with Atlanta. They had argued about her leaving school. Parenting did not appear to him at that moment to be entirely agreeable. This attitude on his part can be inferred from evidence I accept from Mr Buttfield. In Mrs Simms' handwriting Mr Buttfield's mutual conference with Natasha and Albert records Natasha as saying "we would like to get married and have children". Natasha initiated this statement. That is what she wanted, as her evidence demonstrated. But later in the meeting Mrs Simms asked the couple, "are you planning on having children of your own?" to which Albert replied, "it's on the cards". I accept that Mrs Simms' note of this is accurate. This was the statement of a 57 year old man who for the sake of a future relationship is resigned to giving in soon to the wishes of his 38 year old female partner to have children.
(h) Performance of Household Duties - Interpretation Act, s 21C(3)(h)
I accept Natasha's evidence that she carried out a wide variety of household duties at the Rozelle property. This conclusion is supported by her own evidence on the subject and by the evidence of Melody Price-Dawson, both of which I accept.
I draw inferences at several levels from this evidence. Natasha's familiarity in evidence with Albert's food preferences and his culinary abilities demonstrate her familiarity with the working Rozelle property household and supports the conclusion of her regular presence there. But the same evidence shows her sharing important domestic ceremonies with Albert at his table. Her presence there over dinner blends with the public reputation aspect of the relationship.
But her performance of household duties went well beyond cooking. I infer from the DVD evidence that Natasha had a ready familiarity with the whole of the Rozelle house. She showed the police officers through every room without having apparent difficulty in quickly finding just about anything she wanted or being able to answer the questions they asked. I infer that this familiarity was the product of working around the house and using its conveniences.
Holden and Atlanta's case was that Albert's brother Mario undertook the bulk of the household duties which was his contribution to the household. I accept the witness Keith Wilson's evidence that "Mario did a lot of the housework" and that occasionally Albert became annoyed with him, because Mario was not contributing in this way to the household. But Mr Wilson's visits to Rozelle were approximately annual and it may not have been surprising that he did not witness Natasha's full contribution to the household.
I accept Natasha's evidence that it was her perfume and her hairbrush that were found next to Albert's bed after his death. Whilst they are not evidence of performance of household duties they are evidence of easy entry to all parts of the house consistent with someone who had performed household duties throughout the house, which I accept that she did. But Mario who was an important part of his brother's life also had responsibilities for maintaining the house.
On a related subject, I accept Natasha's evidence that the red dressing gown that she tendered in evidence was kept in Albert's bedroom. In my view it can not readily be inferred from the photos of Albert's bedroom taken after his death that the red item was one of Albert' red collared shirts rather than a dressing gown. The evidence from these images is insufficient to displace my acceptance of Natasha on this issue.
(i) Reputation and Public Aspects of the Relationship - Interpretation Act, s 21C(3)(i)
Albert's sudden and tragic death divides the Court's analysis of the public aspects of Natasha's claimed relationship into two parts: reputation aspects before his death; and inferred reputation aspects arising from his death. Both of these indicate a de facto relationship.
The witnesses from Albert and Natasha's life together were impressive. I accept their evidence. Perhaps the best of them was Mr Dassakis, who had met Albert and Natasha through their work, but who became a personal friend. His evidence described a couple who were committed to each other, and who showed all the common signs of giving mutual domestic support to one another. Married himself, and to the Court's observation an apparently intuitive individual, Mr Dassakis remembers Albert speaking of his expected future with Natasha, just as Mr Dassakis thought a married man would speak about his wife. Considering all these factors together in my view Albert and Natasha were in a de facto relationship from 2002.
A number of features of Mr Dassakis evidence confirmed Natasha's version of the quality of her relationship with Albert and how often she was at the Rozelle property. Although I accept the whole of Mr Dassakis' evidence the following matters stand out. Mr Dassakis would drop in unannounced both on weekends and during the weekdays and both during the daytime and after hours and he remembers Natasha was often there. Albert had told him that Albert was in "de facto relationship" and that is where Mr Dassakis decided to leave his enquiries. But Mr Dassakis' observations were consistent with what Albert had told him - Mr Dassakis believed he had all the information he needed about the relationship. Mr Dassakis specifically remembers Albert speaking of "us doing things [together]", meaning Albert and Natasha, as opposed to "I am doing things" in the future.
Natasha's case was also supported by another impressive witness, Ms Melody Cassandra Price- Dawson. Ms Price-Dawson and her husband Mr Chris Banks were regular visitors to social events at the Rozelle property. I accept her evidence that Natasha fulfilled the role of hostess, cooked and cleaned up on these occasions. Indeed I accept all her observations about Albert and Natasha's life together. She observed that Albert and Natasha shared a bedroom and lived together as a couple at the Rozelle property. She even could recall Albert and Natasha attending social events at her home with Atlanta and Holden. Ms Price- Dawson is a forthright person. She formed her own view that Natasha and Albert were a couple, and said to him only half jokingly on a number of occasions, "Why don't you just marry her". To this, with a degree with partial acceptance on Albert's part she recalls him replying "Yeh, I know". I also accept Ms Price-Dawson's evidence that Albert had humorously commented to her that he had a frequent and satisfactory sexual relationship with Natasha.
Ms Price-Dawson's evidence was challenged on a number of grounds including that she did not know for a considerable period that Natasha wore a wig. But none of that causes the Court to doubt the quality of Ms Price-Dawson's evidence. Natasha was reserved about some issues in her life; and wearing a wig was one of them.
But Holden and Atlanta's case had a considerable body of evidence against Natasha's, Ms Price Dawson's and Mr Dassakis' evidence. Evidence was adduced from Keith Wilson a close friend of Albert, Margret White, Albert and Mario's sister, Susan Callaghan, Albert's ex-wife, Ronda Frisoli, Mario's ex-wife, Erica Frisoli, Mario's daughter and Albert's niece, Shannon Frisoli, Mario's daughter and Albert's niece, Charlotte Cotes, a girlfriend of Holden and Sam Gribble a friend of Holden, Thomas Branighan, a friend of Holden and Fiona Dalloway, a friend of Atlanta. All of these witnesses apart from Keith Wilson and Sam Gribble were cross-examined and the Court had a chance to assess them along with Holden and Atlanta.
But I prefer Natasha's account to that of those witnesses for a number of reasons. The younger witnesses seemed prepared to deny Natasha ever cooked for them or ever did housework. In my assessment the better view is that these young people did not really notice what Natasha was doing around the house. They were more pre-occupied with their own affairs. Although I do accept their evidence that it was unlikely that Natasha stayed overnight with Albert when they were in the house. In my view Albert generally avoided making his relationship with Natasha that obvious. As to the other adult observers called in Holden and Atlanta's case, they were generally not sufficiently frequent visitors and did not stay overnight at the Rozelle property in a way which would allow them to observe Albert's and Natasha's relationship at close quarters.
The parties much debated events after Albert's death, as indicating or not indicating, a de facto relationship. But with one exception the material from this period is not strongly indicative either way. The parties debated the following range of matters: who organised the funeral; who identified Albert's body; what was in sympathy cards sent upon Albert's death; how people were described in the funeral service; what was told to a Sydney Morning Herald journalist covering Albert's death; where people sat at the funeral service; and the death notice.
In my view this period does all the parties to the litigation great credit. For all of them the aftermath of Albert's sudden death was the time when they all worked together. Natasha was not overly proprietorial about the funeral. And people generally said about the deceased, as the video evidence shows, the positive things that they remembered from his life. But it is hardly surprising that those who have given evidence against Natasha in these proceedings would not have used the funeral as an opportunity to acknowledge the relationship between Natasha and Albert. On the other side Natasha was not fighting for her space as his partner at the funeral.
But the exception to this is Natasha's statement to the police. Her obligation was not to mislead the police in their inquiries. She stated to them she was his de facto. And in my view that was the truth.
Consequences of these finding for intestate succession and Succession Act s 57 "eligible person"
The Court's findings of a de facto relationship between Albert and Natasha for not less than two years prior to his death means that she takes his estate under Probate and Administration Act s 61B (3B). The findings also mean that she was a person in a de facto relationship with Albert at the time of his death qualifying her as an eligible person under Succession Act s 57(1)(b).
But the findings that ground the Court's conclusion that a de facto relationship existed, also lead independently to the conclusion that Natasha would have qualified as an eligible person under Succession Act s 57(1)(e) and (f). Particular findings may be briefly highlighted to show this.
Natasha qualifies under Succession Act s 57(1)(e)(i) as "partly dependant on the deceased". In my view in the whole of the 10 years between 2002 and Albert's death in 2009, Albert provided her with accommodation several nights a week, money and gifts, free travel and joint leisure activities, all sufficient to show that she was financially dependant upon him. He had a considerably larger income than she did. She contributed much to the household in her homemaking role matching his greater financial contributions. And her very regular time at the household albeit remaining discreetly less obvious when Atlanta and Holden were there, nevertheless made her a "member" of the deceased's household for the whole of this period within Succession Act s 57(1)(e)(ii).
Natasha also qualifies under Succession Act s 57(1)(f). The Court's finding of the conclusion of a de facto relationship also show how close was the domestic support and personal care between Natasha and Albert. Natasha is cooking Albert's meals. They chose to spend much time in the company of one another, not only at work but domestically. Their sexual relationship, her choices about the furnishings and fittings of the Rozelle property and their travel together all indicate a Succession Act s 57(1)(f) close personal relationship.
Applicable Legal Principles - Exercising the Family Provision Discretion
The Court has found that each of Natasha, Holden and Atlanta are eligible to claim for an order for family provision out of Albert's estate. Whether or not such an order should be made, in what amount an order should be made, and against what assets, are governed by the principles stated here.
The question now arises whether any, and if so what, order for provision should be made in Natasha's, Holden's and Atlanta's favour. Succession Act, ss 59 and 60 set out the steps and considerations in determining whether or not to make an order for family provision under the Succession Act. The provisions of Succession Act, ss 59 and 60 relevantly provide as follows:-
"59(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:
(a) the person in whose favour the order is to be made is an eligible person, and
(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57-having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and
(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
60(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining:
(a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and
(b) whether to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the Court:
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,
(e) if the applicant is cohabiting with another person-the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
The operation of these provisions is well established in authority. The Court must first consider in such an application whether or not the provision made in favour of the plaintiff by the deceased either during the deceased's lifetime or out of the deceased's estate is now "inadequate for the proper maintenance, education and advancement in life of the eligible person": Succession Act, s 59(1)(c). If the Court makes a determination of inadequacy, the Court must then determine "what provision (if any) ought to be made in favour" of the plaintiff taking into consideration the matters set out in Succession Act, s 60.
The separate nature of these two questions in the context of the Family Provision Act was affirmed by a majority of the High Court in Singer v Berghouse (No 2) (1994) 123 ALR 481; (1994) 181 CLR 201 at 209:
"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'' and ``proper'' and the interrelationship which exists between ``adequate provision'' and ``proper maintenance'' etc were explained in Bosch v Perpetual Trustee Co Ltd. [1938] AC. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (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.
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 applicant. 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 (1951) 82 CLR 645, 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."
The High Court confirmed this approach to the operation of family provision legislation in Vigolo v Bostin (2005) 213 ALR 692; (2005) 221 CLR 191 at [112].
Whether the two-step test operates with the same full vigour in the current legislation as it did in the Family Provision Act 1982 has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. Indeed in Andrew v Andrew [2012] NSWCA 308, especially at [26] to [29], and [41], the Court of Appeal has stated that the new language of the Succession Act is not consistent with the two stage inquiry which was a common feature of the earlier legislation. But such considerations are not determinative in this case, which is a clear one on the question of whether or not adequate provision has been made. It has not, for the reasons explained below. And even though the process may no longer be a two stage one, it still involves a similar range of relevant considerations.
Other authorities have explained in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ in Drury v Smith [2012] NSWSC 1067 at [153], [154], [155], [158] and [160], which relevantly provides:
[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16:
"Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541)
In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274...
In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said:
'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.'
The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that:
'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"
[154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted:
"In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."
[155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:
"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."
...
[158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that:
"It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
...
[160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said:
"[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
That then leaves the Court to decide what is appropriate provision in this case.
Holden and Atlanta dispute that Natasha has established the necessary elements under Succession Act, s 59 and whether application of Succession Act, s 60 called for any provision to be made in her favour.
Do Succession Act, s 59(1)(b) Factors Exist here?
The Court has found that Natasha's is an "eligible person" on the basis that she was in a de facto relationship with him at the time of his death: (Succession Act, s 57(1)(b)). But her claim to be an "eligible person" would also have been made out on the basis that she was a dependent member of his household and living in a close personal relationship with him: (Succession Act, s 57(1)(e) and (f). The requirements of Succession Act, s 59(1)(b) are therefore engaged. So, it is necessary for the Court to determine whether, having regard to all the circumstances of the case (whether past or present) "there are factors which warrant the making of the application". And if there are no such factors, then the Court must refuse to proceed.
Were the question of eligibility solely dependent upon Natasha qualifying under Succession Act, s 57(1)(e) or (f), this is a case in my view where there are factors which would warrant the making of the application sufficient to satisfy Succession Act, s 59(1)(b).
Succession Act, s 59(1)(b) only applies to certain classes of applicants who are not generally regarded as natural objects of testamentary recognition of a deceased person. This suggests that the "factors" referred to are factors which when added to facts which render the applicant an "eligible person" also give the applicant the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased person: see Re Fulop (deceased) (1987) 8 NSWLR 679 at 681 per McLelland J and Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 at 252E. Where persons affected by Succession Act,, s 59(1)(b) have the circumstances of their relationship with the deceased set out, it can sometimes immediately be seen that they are persons who would be regarded by most observers as natural objects of testamentary recognition: Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 at 252E.
Here those Succession Act, s 57(1)(b) "factors" exist. As a de facto relationship has been found. it is difficult to consider any other factors in the alternative. But in the circumstances the following can be said.
A number of factors warrant giving Natasha the status of a person who would generally be regarded as a natural object of testamentary recognition by Albert. His financial decisions in 2001 and 2002 gifting her the money from her father's estate, putting her in control of the Goodsir Trust and making her a beneficiary of the superannuation fund and assigning her the benefit of his life insurance policy are all objective indicators of a sense of personal financial obligation to her, which would subsist after his death. Albert's visit to see Mr Buttfield and Ms Simms and the instructions he gave to them about benefiting Natasha under Albert's proposed last will are strong indications of an intention to benefit her after his death and that he recognised her as a natural object of testamentary recognition. Added to these factors is the length of the intimate relationship between them. They had a regular sexual relationship for at least seven years before his death, if not considerably longer. The fact that Natasha was a regular part of the deceased's household and that he seemed to gain a very considerable pleasure from being in her company are other factors warranting the making of an application on her part.
The financial position of the parties
There is a general consensus in final submission that there were only a number of chattels of little value in Albert's estate so that adequate provision has not been made out of the estate for any eligible applicant. The financial position of each of the eligible applicants may be shortly stated.
Natasha's financial position is not strong. If one excludes the claimed equitable interests in Goodsir trust of $1.5 million she has in total about $470,000 in assets of which $48,500 is superannuation and about $370,000 being what she is owed for applying the proceeds of a life policy to which she was entitled after Albert's death to the Rozelle property mortgage. She has minor credit card liabilities but also a liability to her solicitors for the costs of these proceedings of about $150,000. Natasha's current income is about $920 per week on a net basis together with a small amount of dividend and interest income. But her estimated weekly expenses are $961 per week. Although those expenses include land tax for the Rozelle property. For the reasons I will shortly explain the Rozelle property will need to be sold. And so this part of her ongoing liabilities will be reduced.
Holden's asset and liability position is uncomplicated and reflects his position as a student. He has assets of about $4700 and a HECS debt for university fees of $43,322. He has an average gross monthly salary of $1900. He studies part time and works three days a week while he completes his Commerce degree at Macquarie University. He wishes to buy a property to start an asset base for himself and to repay his HECS debt. With these needs and expectations and as the result of the intestacy is to give him nothing, he is clearly entitled to an order for provision.
Atlanta is still at university. She receives a Centerlink youth allowance of $590 per month but has monthly expenditure of $1714. She has few assets, reflecting her age: being cash, motor vehicle, clothing and affects or totalling only approximately $16,000 with a superannuation account of approximately $4,700. She has liabilities including a HECS debt of just over $12,000. Like her brother she is in need of a significant capital fund to advance her situation in life.
Estate and Notional Estate Assets
The net distributable and notional estate is not large. It consists of motor vehicles worth $13,000 and furniture and musical instruments worth $11,500. The estate has an interest in the ADR Unit Trust worth in Holden's estimation about $250,000 but realisation may well be lower than this. Estate liabilities in relation to the administration are in the order of $126,700.
The notional estate consists first in the Goodsir trust, the principal asset of which is the Rozelle property. The parties accept that the current valuation of that property is $1.5 to $1.6 million. If Natasha is repaid $370,000 after the sale of that property it will net about $1.2 million. An in addition the superannuation fund is worth approximately $282,000.
In broad outline therefore the real assets in contest are the notional estate with the total of about $1.5 million. There is no contest that Natasha is entitled to he life policy proceeds and ought to be repaid the $370,000 which the Goodsir Trust owes her.
But the parties are in dispute about costs. Natasha's costs are about $160,000. Holden and Atlanta's costs are double that. Natasha submits that inclusive of costs orders should be made in this case. But the parties engaged in a very substantial legal contest in relation to the Goodsir trust and I can understand why the costs are so large. I will not make an inclusive of costs order. The parties can debate costs if necessary after I make my orders in these proceedings. But I do not immediately see why the costs should not be paid out of the estate in the ordinary way and the balance distributed to the parties.
The Notional Estate Claim
Holden, Atlanta and Natasha all submit and concede that the Goodsir Trust and the Superannuation Fund are liable to be designated as notional estate and should be so designated. They also submit that the Court should order that provision for the plaintiffs be made out of the notional estate so designated. I see no impediment to the Court acting on those concessions. No third party interests are involved.
Succession Act, Part 3.3 applies to situations where as a result of certain property transactions, properties not included in the estate of a deceased person may be designated in limited circumstances under the Succession Act as "notional estate" of the testator, where necessary for the purposes of making an order for provision.
It is very clear in this case from the size of Albert's estate that that orders for provision cannot be made out of Albert's estate. Recourse to notional estate is necessary to make provision for Natasha and to make consequential orders in relation to Holden and Atlanta.
The Court grants leave to make a notional estate order even though Natasha's application for a family provision order was made more than 12 months after Albert's death. Succession Act s 90(2) prevents the making of such an order unless the Court is satisfied "special circumstances" exist within s 90(2)(b). Here special circumstances exist. The notional estate has not been dealt with before the application was made. No third party interests have intervened. The delay in bringing the application us explained by other intervening legal disputes.
The assets of the Goodsir Discretionary Trust and the Superannuation Fund will accordingly be designated as notional estate.
Consideration
An order for provision should be made in favour of all three applicants out of notional estate. What is in the estate is inadequate for the purpose. Natasha submits she should have all the assets in the Goodsir trust and that Holden and Atlanta should have the assets in the Superannuation Fund.
But in my view that overstates Natasha's case. I have found her to be in a de facto relationship with the deceased. But she falls short of the category of spouse referred to in Luciano v Rosenblum (1985) 2 NSWLR 65: entitled to a security in her own home and an income sufficient to permit her to live in a style to which she is accustomed and to provide a fund to enable her to meet unforseen circumstances.
Several factors displace such a judgment about Natasha. Her claim over the Rozelle property is limited by the fact that it was also occupied by Mario and she only lived in it part of the week. The conversations between Albert and Mr Buttfield and Ms Simms indicated that Albert wanted to benefit Natasha and Holden equally. Once he had reconciled himself to a gift to Atlanta it should be assumed that she would have been given equality with Holden in Albert's testamentary intentions. And the fact that neither Albert nor Natasha made the relationship very public takes this case somewhat away from the Luciano v Rosenblum category. And proper allowance must be made for the competing valid claims for family provision by each of Holden and Atlanta.
This is ultimately discretionary judgment. The judicial difficulty faced in considering this case and once like it has been aptly expressed by Allsop P, as his Honour than was in Andrew v Andrew [2012] NSWCA 308 at 1:
This is a difficult case. The difficulty arises from the need to apply a statutory test couched in evaluative language embodying human values and norms of conduct deeply personal to those involved and often incapable of clear expression. The human expression of will concerning the disposition of property flowing from considerations of emotion (including love and disappointment), reason and societal and family obligation cannot often be fully understood.
Holden and Atlanta's needs for capital to advance them in life must be taken in to account. Considering all the circumstances in my view the appropriate order in this case to declare the Goodsir Discretionary Trust and the Superannuation Fund as notional estate and to make an order for provision out of the estate and notional estate, after liabilities, of 50% to Natasha and 25% to each of Holden and Atlanta. This will necessarily mean that the Rozelle property will need to be sold, with the tax consequence that entails, unless some other mutual financial arrangement is reached.
Conclusions and Orders
In the result the Court has found that Natasha was in a de facto relationship with Albert at the time of his death, and had been in that relationship for in excess of two years, Natasha, Holden and Atlanta are all eligible to bring family provision claims under Succession Act, ss 59 and 60. The Court has determined these claims treating the Goodsir Trust and the Superannuation Fund as notional estate. The Court has found that the deceased did not make adequate provision for Natasha, Holden or Atlanta out of his estate. So the Court will make orders for provision out of the estate and notional estate of Albert Frisoli: for Natasha by giving her 50 per cent of the estate and notional estate, and for Holden by giving him, and for Atlanta by giving her, 25 per cent each of the estate and notional estate.
Ordinarily Holden's costs as administrator in defending the proceedings would be paid out of the estate on the indemnity basis, and Natasha's and Atlanta's costs as successful claimants for provision would also be paid out of the estate. Unless, any party wishes to put a contrary submissions, that may be reflected in the final orders.
I will direct the parties to bring in short minutes of order within 7 days to give effect to these reasons.
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Decision last updated: 10 February 2014
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