Govers v Luff

[2000] NSWSC 509

CITATION:	Govers v Luff [2000] NSWSC 509
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 4552/94; 1461/97
HEARING DATE(S):	2 and 3 December 1999, 22 and 23 February 2000.
JUDGMENT DATE:	9 June 2000
PARTIES :	Genevieve Marie Govers (P in 4552/94) Marie Lyn Govers (P1 in 1461/97) Simon Robert Freestone (P2 in 1461/97) Barry Luff and Ines Freestone (Ds)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. M. Meek (P in 4552/94) Ms. M. Painter (P1 and P2 in 1461/97) Mr. D. McGovern (Ds)
SOLICITORS:	Legal Aid Commission of New South Wales (P in 4552/94) Wood Roberts Solicitors (P1 and P2 in 1461/97) Commins Hendricks Solicitors (Ds)
CATCHWORDS:	Family Provision - Claim by adult daughter suffering from Down's Syndrome - No provision made by testator - No Contact by testator with plaintiff during lifetime of testator - Plaintiff resides in a group home - Present circumstances of plaintiff - Present and likely future needs of plaintiff - Claims by former wife and adult son - Proceedings instituted after expiry of prescribed period - Application for extension of time - Whether sufficient cause has been shown for proceedings not having been instituted within that period - Conduct of solicitor - No prejudice to defendants - Exercise of discretion involves a consideration of substantive claims - Lack of candour on part of former wife in failing to disclose information concerning her circumstances - Very short marriage to testator - Former wife subsequently entered into another relationship, and later into a second marriage - No contact with testator - No factors which warrant the making of the application - No provision made for adult son by testator - Absence of contact between testator and plaintiff during lifetime of testator - Plaintiff training for a career as an actor - Plaintiff has no assets and maintains a frugal lifestyle - Competing claims of widow and infant child (aged sixteen) of testator (who are the beneficiaries under his will) - Widow has subsequently married again - Contribution by widow to acquisition and conservation of assets of the estate.
LEGISLATION CITED:	Family Provision Act 1982
DECISION:	See paragraph 132 of judgment.

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 9 June 2000

4552/94 GENEVIEVE MARIE GOVERS BY HER TUTOR COLLEEN ANN VISSER -v- BARRY LUFF AND INES FREESTONE - ESTATE OF ROBERT CLARENCE FREESTONE 1461/97 MARIE LYNN GOVERS AND SIMON ROBERT FREESTONE -v- BARRY LUFF AND INES FREESTONE - ESTATE OF ROBERT CLARENCE FREESTONE

JUDGMENT

1    MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 18 November 1994 Genevieve Mary Govers (a disable person, who brings these proceedings by her tutor Colleen Ann Visser) claims an order for provision for her maintenance and advancement in life out of the estate of her late father Robert Clarence Freestone (to whom I shall refer as “the deceased”). 3 By summons filed on 21 February 1997 Marie Lynn Govers and Simon Robert Freestone each claim an order for provision for their respective maintenance and advancement in life out of the estate of the deceased. 4 These two matters were heard together. On Thursday, 2 December 1999, in each matter I ordered that proceedings 4552 of 1994 and 1461 of 1997 be heard together and that the evidence in the one, so far as is relevant, be treated as evidence in the other. 5 The deceased (who was born on 14 June 1938) died on 27 May 1993, aged fifty-four. He left a will dated 16 March 1993, probate whereof was on 13 October 1993 granted to Barry Luff and Ines Freestone, the executors named in such will (who are the defendants in each set of proceedings). 6 The deceased had been married twice. Firstly, on 7 January 1967, to Marie Lynn Govers. Of that marriage were born two children, being Simon Robert (born 15 October 1967, who is now aged thirty-two) and Genevieve Marie (born 26 December 1968, who is now aged thirty-one). 7 In late 1968, shortly before the birth of Genevieve, Mrs Marie Freestone (to whom I shall refer as Marie) left the matrimonial home, taking Simon with her. She and the deceased were divorced on 27 September 1973. 8 Subsequently the deceased married Ines (now Mrs Darcy) in 1983. (I shall refer to her as Ines.) They had been living together since 1979. Of the marriage of the deceased to Ines was born one child, Jacqueline Lee (born on 6 February 1984, who is presently aged sixteen). 9 Ines herself had previously been married, her first marriage ending in divorce. Of her first marriage she had three children, all of whom are now adults. 10 By his will the deceased gave his house property situate at 52 Sheridan Street, Gundagai, and its contents, together with his motor vehicle (a Mercedes-Benz motor car) to his widow. He gave the residue of his estate as to two-thirds to Ines and as to one-third to his daughter Jacqueline upon her attaining the age of eighteen years. 11 The inventory of property discloses that the assets of the estate consisted of the house property situate at and known as 52 Sheridan Street, Gundagai, to which a value of $120,000 was ascribed, vacant land situate at Otway Street, Gundagai, to which a value of $3,000 was ascribed, an interest in a partnership J. H. Freestone & Co ($259,396), an interest in a partnership Station Place Enterprises ($140,754); and the Mercedes-Benz motor car, to which an approximate value of $20,000 was ascribed. 12 Following the grant of probate the house property at 52 Sheridan Street, Gundagai, was transferred to the sole name of Ines; the property situate at Otway Street, Gundagai, has been transferred into the names of Ines and her co-executor. The Mercedes-Benz motor-car has been transferred into the name of Ines. 13 At the time when she swore the executor’s affidavit required by Part 77 rule 59 of the Supreme Court Rules, on 26 June 1996, Ines had received no dividend from the distribution of the assets of the partnership J. H. Freestone & Co., which had by then been dissolved. She stated that she did not know how the interest of the deceased in that partnership in the sum of $259,396 had been arrived at. She understood that the assets of that partnership currently totalled net $300,000. She stated that the partnership Station Place Enterprises, which held real estate in Station Place, Wagga Wagga, was subject to a mortgage to the ANZ Bank, and that a transmission application in respect to that property had not yet been lodged for registration, pursuant to negotiations with that bank concerning the mortgage loan. 14 The partnership J. H. Freestone & Co. (in which the other partners with the deceased were his mother (Lucy Freestone) and the estate of his late father) conducted a furniture retail business at Gundagai and Wagga Wagga, and leased the Station Place premises from the deceased and Ines. 15 Since the death of the deceased Ines has continued to reside in the house property at 52 Sheridan Street, Gundagai, which was the matrimonial home of herself and the deceased. 16 In her affidavit of 8 September 1998 Ines sets forth information concerning her role and conduct in respect to the partnership J. H. Freestone & Co. since the death of the deceased. She also annexes two letters dated 3 August 1993 from D. L. Wood & Co. Property Sales and Licensed Auctioneers, which value the real estate owned by J. H. Freestone & Co. as at 3 August 1993 at $455,000 (Annexure D) and which value the house property at 52 Sheridan Street, Gundagai, at $120,000 (Annexure E), as well as a valuation report dated 7 August 1993 from Bolton Connelly Pty Limited, which values the premises at 17-19 Station Place, Wagga Wagga, as at 26 May 1993, at $450,000 (Annexure F). 17 In the same affidavit Ines states that the Mercedes-Benz motor car was about twenty years old at the time of the death of the deceased, and that she did not believe that it was worth $20,000. In 1995 she traded it in for a Nissan Maxima motor vehicle, costing about $40,000. The trade-in value of the Mercedes-Benz was $6,000. 18 After the death of the deceased the partnership J. H. Freestone & Co. was dissolved, the parties entering into a deed dated 18 November 1994 (which is annexed to the affidavit of Ines sworn 8 September 1998 (Annexure G)). Consequent upon the dissolution of that partnership Ines forthwith commenced operation of the furniture retail business from the Station Place premises under the name Freestone’s Furniture. In her affidavit of 18 November 1994 she sets forth the details of the assets which were used to commence the operation of that business. The valuation of the Station Street premises was updated as at 9 June 1999, in an amount of $390,000 (Annexure J to the affidavit of Ines sworn 8 September 1998). 19 John Henry Freestone, the father of the deceased, died on 7 May 1990. Probate of his will was granted on 10 July 1992. Under that will the deceased received an interest in remainder of a one-fifth share of the one-third interest of John Henry Freestone in the partnership J. H. Freestone & Co. That interest in remainder was subject to the life interest of the deceased’s mother, Lucy Gene Freestone, who survived the deceased. 20 Lucy Freestone, the mother of the deceased, died on 24 September 1999. In consequence, the interest in remainder of the deceased in the one-third share held by the deceased’s father in J. H. Freestone & Co. has now vested in possession; that is, the estate of the deceased has become entitled, consequent upon the testamentary dispositions of the deceased’s father, to a one fifteenth interest in that partnership. Independently of the foregoing interest, the estate of the deceased also holds a one-third interest in that partnership. 21 Under the terms of the will of his late mother, Lucy Jean Freestone, the deceased (and now his estate) became entitled to a further one-fifteenth share in that partnership. As a result of the foregoing testamentary dispositions by the parents of the deceased, his estate is now entitled to a seven-fifteenths interest in the partnership. 22 In September 1995 Ines married her present husband Lesley Ashley Darcy (whom she met in December 1993, after the death of the deceased). Ines still continues to conduct the furniture business at Wagga Wagga, travelling there from Gundagai each day, and working in the shop from 9:00am to 5:30pm each day, five days a week, and from 9:00am to 3:00pm on Saturdays. 23 Shortly after the death of the deceased his daughter Jacqueline was in July 1993 (when she was aged nine) diagnosed as suffering from lymphoma. She required tests, surgical procedures and treatment in Sydney over a period of more than two years. Jacqueline resides with Ines and her stepfather, Lesley Darcy, and is totally dependent upon them.

CLAIM OF GENEVIEVE

24 Genevieve was born with Down’s syndrome. For the first eighteen years of her life she resided with her mother. Since 1988 she has been residing in a community group home at 23 Ada Street, Waratah (which is a suburb of Newcastle). She shares that group home with four other similarly disabled persons. Genevieve has her own room in the group home. She manages her own daily care. She can be left unsupervised for up to an hour at a time. However, she requires a carer at night time. She is neither literate nor numerate. Her speech cannot be understood by those unfamiliar with it. Genevieve is incapable of handling any significant sums of money (for example, anything over $20). 25 Genevieve is in receipt of a social security pension, presently in an amount of $447.90 a fortnight. Of that pension 75 per cent is paid to the New South Wales Department of Community Services, which conducts the Ada Street home. 26 Evidence was given by Catherine Taylor, a residential group home manager, who is one of the prime carers of Genevieve in the group home. According to Miss Taylor, Genevieve appears to be happy and well-adjusted there. The care, attention and supervision of the Ada Street home are of a high standard. Miss Taylor, was of the view that Genevieve is being properly and appropriately cared for in her present environment, where she has acquaintances and companionship with the other residents. 27 Evidence was given concerning Genevieve’s daily activities, including a small amount of remunerative work which she performs in a sheltered workshop, and her various recreational and entertainment pursuits. 28 The Department of Social Security pension is paid into an account maintained in Genevieve’s name, from which 75 per cent is paid to the New South Wales Department of Community Services. That account is operated by two staff members of the Department. It would appear that the payments from Genevieve’s account are carefully audited. 29 In addition to her basic pension (upon which the 75 per cent payment to the Department of Community Services is calculated) Genevieve also receives an additional payment, known as a mobility allowance, presently in an amount of $57.10 a fortnight. 30 Evidence was given concerning Genevieve’s life expectancy, to the age of seventy years; and concerning her health, which is generally good. However, she occasionally manifests some self-destructive behaviour. She appears to be at some increased risk physically of osteoporosis, and some increased risk mentally of Alzheimer’s disease. 31 It was submitted on Genevieve’s behalf that she has requirements (apart from shelter and sustenance) of clothing, personal hygiene accessories, activities and recreational pursuits, possible holidays. 32 Evidence was given concerning the staffing arrangements at the Ada Street home, and the fact that, on account of constraints of staff availability, most recreational and social activities are performed in a group. It would appear difficult for there to be provided for a single one of the residents the exclusive attention of a staff member; for example, it would be difficult for a carer to be made available to take Genevieve horse riding. It would appear that she has experienced horse riding, and that she has enjoyed that activity. Her other recreational pursuits include swimming. Evidence was given concerning the enjoyment which Genevieve derives from holidays. 33 Evidence was given that Genevieve tends to have dry skin, and occasionally suffers from a rash. Those conditions require the use of moisturising skin products. 34 The mobility allowance to which reference has already been made appears not to be sufficient to cover Genevieve’s transport costs. Sometimes the dedicated bus of the Ada Street group home is not available; also, that bus does not always meet all Genevieve’s requirements. On those occasions she uses a taxi. 35 At the present time Genevieve’s income consists of her Department of Social Security pension in an amount of $447.90 a fortnight, together with her mobility allowance of $57.10 a fortnight, totalling $505 a fortnight. 36 When the 75 per cent of the basic pension is deducted to meet payment for her board and accommodation, there is an amount of about $4,400 a year available for Genevieve’s other needs. 37 It was submitted on behalf of Genevieve that recurring costs for her maintenance totalled a little under $8,000 a year (those costs relating to such items as the purchase of clothing, the costs of orthotics and of skin care products, the costs of using a swimming pool, piano lessons and transport by taxi). 38 Further, it was submitted that there were other costs and expenses for what might be described as Genevieve’s advancement in life, being for activities and procedures from which Genevieve would derive benefit. Those included holidays, horse riding, facials and manicures, speech therapy, and the provision of an individual support person for five hours a week (at $15 an hour), those costs and expenses totalling about $4,000 a year. 39 In addition, Genevieve has immediate need for certain items of furniture, furnishings and equipment, being a wardrobe, a chest of drawers, a reclining chair and, so it was submitted, a stereo system, the total cost of which items is about $2,250. 40 It will be appreciated that that last figure of $2,250 constitutes a non-recurring expenditure, whereas the earlier figures of about $8,000 and about $6,000 are annual recurring expenses. 41 Genevieve as a daughter of the deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, she has the standing to bring the present proceedings. 42    During his lifetime the deceased showed little interest in Genevieve, and made little contribution towards her maintenance. It would appear that at the time when they divorced Marie and the deceased entered into a maintenance agreement in respect to the two children of their marriage. However, details of that agreement have not been placed before the Court. According to Marie, the payments which she received from the deceased for maintenance of Simon and Genevieve were irregular, and it was necessary for Marie on occasion to resort to enforcement procedures. 43    Not only did the deceased abandon his responsibilities for Genevieve during his lifetime, but he also failed to fulfil those responsibilities after his death. 44    Genevieve will never be able to care for herself. She has minimal assets, and her only source of income is a disability pension. She has needs which are not being met by that pension, and she has no capacity in herself to provide for those needs. 45    It is abundantly apparent that Genevieve is entitled to an order for provision out of the estate of the deceased. 46    She is certainly entitled to an amount of money to provide for her immediate identified needs, such as the acquisition of the items of furniture and equipment to which I have already referred. In addition, I consider that she is entitled to receive an amount of money which will enhance her lifestyle in the Ada Street home, by providing not only for recurring maintenance costs, but also for the acquisition of clothing, and additional recreational activities. 47    It is difficult (and probably undesirable) to calculate Genevieve’s entitlement solely as an arithmetical exercise. It seems to me appropriate that she should be awarded a fund which can be held on her behalf by a statutory trustee (for example, the Protective Commissioner or the Public Trustee), with a considerable discretion in that trustee to advance from that fund additional amounts for the purchase of clothing, and other personal requisites, and also for the provision of recreational and other activities. I do, however, query whether it is appropriate that Genevieve (as was submitted on her behalf by her Counsel) should have the exclusive services of an individual support person for five hours a week throughout the year (the cost of such a support person totalling almost $4,000 a year). It seems to me that is preferable that, in respect to whatever fund is awarded to Genevieve, a very broad discretion should be vested in the controller of that fund to use the income and the capital thereof for the maintenance and advancement of Genevieve as needs arise, without unduly limiting the nature of the payments to be made for her benefit. 48    I have in contemplation the award to Genevieve of a legacy of $103,000, which will enable the items of furniture and equipment and some modest luxuries for her bedroom to be purchased immediately, and will allow an amount of $100,000 to be held on behalf of Genevieve for the costs and expenses associated with her current maintenance and her future advancement. 49    However, the provision and calculation of such a legacy must be considered in the context of competing claims upon the testamentary bounty of the deceased. Those competing claims include not only the claim of his widow, Ines, and his infant daughter, Jacqueline, but also the claims which are currently being made by the other two plaintiffs in the present proceedings, being Genevieve’s own mother, Marie, and her brother, Simon. I shall later in this judgment return to a consideration of those competing claims.

CLAIMS OF MARIE AND SIMON

50 The claims of Marie and Simon were made by way of summons filed on 21 February 1997. That summons was filed some two and a quarter years after the expiry of the limitation period of eighteen months from the death of the deceased, as provided by section 16 of the Family Provision Act (that limitation period having expired on 27 November 1994). 51 In consequence, therefore, each of Marie and Simon seeks an order extending that prescribed period. 52 The Court is, by subsection (3) of section 16, precluded from extending the prescribed period unless “sufficient cause is shown” for the proceedings not having been instituted within that period. If sufficient cause is shown, then the discretion vested in the Court by subsection (2) is activated. If sufficient cause is not shown, the Court is not entitled to proceed to an exercise of its discretion to extend the prescribed period and allow the claim to be brought after the expiration of that period. 53 A very considerable quantity of evidence was given concerning the circumstances in which the claims of Marie and Simon were brought after the expiry of the prescribed period. 54 An attempt had originally been made in mid-1996 (well after the expiry of the limitation period) to join Marie and Simon as co-plaintiffs with Genevieve in proceedings 4552 of 1994. That attempt was doomed to failure, and was abandoned. 55 Neither Marie nor Simon was informed of the death of the deceased until some time after that event. At that time Simon was residing overseas, in London. He returned to Australia in November 1995. Marie sought legal advice, consulting firstly the Legal Aid Commission, and later her present solicitor, Lynette Robin McLardy. In the first instance Marie’s inquiries and that advice were directed essentially to the rights of Genevieve. It is unnecessary for me to rehearse the details of the contact between Marie and the Legal Aid Commission and between Marie and Miss McLardy (which commenced when Marie spoke with her by telephone on or about 23 December 1994), and the communications which passed between Miss McLardy and the solicitors acting for the estate of the deceased. 56 Miss McLardy gave evidence and was cross-examined. Suffice it to say that she did not dispute the suggestions that it was careless of her to attempt to join the claims of Marie and Simon to that of Genevieve, and that it was an error by her to attempt to do so, and that her mistakes and errors were indefensible. The solicitor was clearly negligent in not instituting proceedings for Marie and Simon immediately after Marie first consulted her in late 1994, rather than more than two years later, in February 1997. 57 The essential reason why the claims of Marie and Simon were not instituted until after expiry of the prescribed period was their ignorance as to their rights and as to the existence of such a limitation period. Subsequently there were delays on the part of their legal advisers, although it will be appreciated that the limitation period had already expired shortly before Marie first consulted Miss McLardy. I do not accept the submission advanced on behalf of the defendants that a deliberate decision was made on the part of Marie that, although aware of her entitlement to make a claim, she chose not to do so until after the expiry of the prescribed period. I am satisfied that before the expiry of that period it was her wish to institute a claim against the estate of the deceased, and that she communicated that desire to the Legal Aid Commission well before the prescribed period expired. 58 In the case of Simon, who was travelling in Europe at the time of his father’s death, the evidence discloses that he informed his mother that he wished to join with her in making a claim against his father’s estate. Later (albeit after the expiry of the prescribed period) it was his understanding that such a claim was, in fact, in the process of being made. Whilst visiting Australia in 1995 Simon had an interview with his mother’s solicitors on 16 November 1995, and gave them express instructions to obtain advice from a barrister in relation to his claim, and subsequently instructed them to proceed with his claim. 59 I do not consider that there can be any criticism of the conduct of Simon concerning the giving of instructions, or concerning any attempts on his part to ensure that the claim was being made. He was not living in Australia throughout most of the prescribed period. He relied upon his mother to be his intermediary between himself and her solicitors. For a considerable part of the period he was visiting the Czech Republic, residing in Prague (to which city it would appear the postal services were dilatory). 60 I am satisfied that sufficient cause has been shown for the claim of Simon not to have been brought within the prescribed period, and that it is appropriate in the case of Simon, as well as in that of his mother, that the Court should proceed to the exercise of the discretion vested in it by subsection (2) of section 16, upon the application for the extension of that period. 61 Although the proceedings were not instituted until 21 February 1997, some two and a quarter years after the expiry of the limitation period, the defendants through their solicitors were aware of the proposed claims of Marie and Simon no later than mid-May 1995, when the letter of 16 May 1995 was forwarded to those solicitors by the solicitor for Marie and Simon. Thereafter there were a number of communications, mostly by telephone, between the solicitors for Marie and Simon and the solicitors for the estate. There can be no suggestion that, at least from mid-May 1995, the defendants were unaware of the intention of Marie and Simon to make claims against the estate. Further, it should be recorded that it appears that it was not until after the expiry of the prescribed period that a notice of claim (undated) was received by Marie. In those circumstances, therefore, I do not consider that there has been any significant prejudice to the defendants as a consequence of the failure of Marie and Simon to institute the present proceedings within the prescribed period. 62 Nevertheless, in exercising its discretion to extend the limitation period, the Court must give consideration to the substantive claims of the applicants who are seeking that extension, and to the prospects of success of those applicants in their substantive claims. 63 It is appropriate, therefore, that I should now proceed to a consideration of the substantive claims of Marie and of Simon, since if the claim of either or both of those applicants is, in any event, doomed to failure, the Court will not exercise its discretion to extend the prescribed period in respect to that applicant. 64 It cannot be emphasised too strongly that it is incumbent upon an applicant for an order for provision under the Family Provision Act to place before the Court as fully and as frankly as possible all available information concerning the financial and material circumstances of that applicant. 65    In the case of Marie this she has signally failed to do. 66    Marie was born on 26 August 1940 , and is presently fifty-nine years of age. 67    It has already been recorded that she was married to the deceased on 7 January 1967, and separated from him in about November 1968, the marriage lasting for less than two years. They were divorced on 27 September 1973. Although no order was made in respect to property, an order was made for the maintenance of Simon and Genevieve (in an amount of $10 a week for each child), but not for the maintenance of Marie. 68    Subsequently Marie married her present husband Barry Lambly in 1991. She separated from him February 1998, and they are now in the process of obtaining a divorce. 69    The affidavit evidence of Marie was anything but precise concerning the circumstances of her second marriage, or concerning the financial arrangements between herself and her second husband. 70    Marie is a qualified registered nurse. Her affidavit evidence contained some information concerning her work history in the nursing profession. It did not, however, disclose that she had obtained the degree of Master of Nursing Administration, or that she had been employed by the University of Newcastle for a period of three years in an academic position as a nurse educator. 71    Evidence was given by Marie orally and by way of affidavit concerning the difficult circumstances under which she raised her two children, and the problems which she had experienced in obtaining any maintenance from the deceased after she separated from him in late 1968. 72    Marie did not disclose (until the information was communicated by her solicitors on 3 December 1999, on the day after the hearing of these proceedings commenced, although the letter containing that information was dated 2 December) that Marie had a third child, Christopher, who was born on 27 November 1975, of another relationship. No information concerning the existence of Christopher, let alone the circumstances concerning his maintenance and the financial aspects of raising and educating him, was mentioned by Marie in her affidavit evidence before the commencement of the hearing. It should here be recorded that the solicitors for the defendants had by letter of 8 September 1998 (more than a year previously) expressly sought of Marie particulars a truthful response to which would have disclosed details revealing the existence of Christopher and Marie’s relationship with his father. 73    In regard to this very significant event in Marie’s life which has had a considerable impact concerning her financial responsibilities, Marie has certainly been lacking in candour. Indeed, it is difficult to resist the conclusion that she was deliberately attempting to mislead the Court. 74    Further, Marie did not disclose in her affidavit evidence information concerning a number of overseas cruises and voyages by sea which she had made on international ocean liners during the period from about 1991 until 1999. In the first of those years she went on a cruise to Tahiti with her second husband. In 1997 Marie travelled to England by sea, for the stated purpose of visiting a nephew. In 1999 she again travelled to England by sea, again to visit a nephew. The cost of the 1997 trip appears to have been about $4,000, and that of the 1999 trip about $7,000. 75    Under cross-examination Marie made the extraordinary responses that she did not regard the Tahiti cruise as relevant to her present claim, and that she did not think that the sea voyages mattered to her claim. 76    It may be of some significance in regard to these overseas trips that Marie did not produce her passport in answer to a notice to produce which was addressed to her by the defendant. 77    It will be appreciated that the Court expresses no criticism of Marie for going on the foregoing overseas trips. The criticism is directed to the fact that she chose not to disclose in her affidavit evidence the not insignificant expenditure of money on what were essentially recreational and vacational activities. Marie is fully entitled to indulge in those activities to whatever extent she desires. However, if she is advancing to the Court a suggestion that she is suffering from financial difficulties or impecuniosity, then, of course, the expenditure on those trips throughout the 1990s becomes of relevance, and indeed of significance. 78    It has already been recorded that subsequent to her marriage to the deceased Marie entered into a second marriage. That was in 1991, when she married Barry Lambly. Apparently there were a number of separations during that marriage, and Marie finally separated from Mr Lambly in February 1998. 79    According to her affidavit evidence Marie throughout the period of her second marriage mostly supported herself, from her wages from either casual or full-time employment. She said in her affidavit of 29 November 1999 that at the time of her marriage to Mr Lambly she was the owner of property at 4 Griffith Avenue, Stockton. The evidence does not reveal how it came about that Marie acquired that property. However, she retained ownership of that house property throughout the period of her marriage to Mr Lambly. Apparently the property was not income producing throughout that period, since, according to Marie, she was never sure when she would need to return to it. 80    Following the breakdown of her marriage to Mr Lambly (from whom she is not yet divorced) Marie received from Mr Lambly the sum of $80,000 “by way of property adjustment”. I am somewhat unclear as to what is meant by that last phrase, in particular, whether it means that that amount was paid consequent upon some order of the Family Court of Australia. 81    Subsequently, Marie sold the house property at 4 Griffith Avenue, Stockton, for the sum of $130,000. She used the proceeds of that sale, together with the $80,000 which she had received from Mr Lambly, to purchase her present residence at 22 Eames Street, Stockton. The purchase price of that house property was $230,000. Marie obtained a housing loan, secured by way of mortgage, from the Commonwealth Bank for the sum of $27,000, to meet the shortfall in the purchase of that property. Her stated intention in acquiring that house was to facilitate Genevieve living with her. I consider that such a proposed arrangement would be financially impractical. Certainly the costs of such an arrangement should not be required to be borne by the estate of the deceased. 82    According to her affidavit of 18 February 2000 Marie’s sole income consists of a disability pension in an amount of $185 a week. She lists outgoings which total $278 a week. She states that she has been able to meet those outgoings only by drawing from funds which she holds in the bank. 83    Marie stated that she had been suffering from depression, and that she had been receiving treatment from a psychiatrist. There was admitted into evidence an affidavit from Dr Roger Peters, a consultant psychologist, annexing his report of 30 August 1999 in relation to Marie. 84    Marie has not worked since 1998. When she ceased work in that year Marie received a lump sum of $27,000 by way of superannuation payment in September 1998. (It is unclear from her evidence what was the source of that superannuation payment, or in respect of what employment it had accrued.) 85    Marie stated that she used the foregoing amount in order to reduce her mortgage by $7,000; to travel to Ireland to see her grandson ($4,000); to effect repairs to her residence ($1,000), and that she currently retains an amount of $11,000 from the proceeds of her superannuation. (I would here interpolate that it is unclear from her evidence whether Marie’s travel to Ireland to see her grandson, upon which trip she expended $4,000 of the $27,000 which she received in September 1998 (an expenditure referred to in paragraph 46 of her affidavit of 29 November 1999, and which must have occurred after 1998) was additional to the trip which she made in 1999 at the cost of about $7,000 on the liner Arcadia, for the purpose of seeing “my nephew” (T61, 63, 66, 67), or was the same trip. Presumably, this uncertainty could have been resolved if Marie had complied with the notice to produce, and produced her passport. Her attempted explanation for her failure to do so was unconvincing.) 86 Marie owns a 1987 motor vehicle, to which she ascribes a value of about $2,000. Apart from the furniture and contents of her residence at 22 Eames Street she has no other assets or financial resources. 87 The Court has not been provided with any details of the circumstances upon which Marie was granted a disability pension, or in which she ceased to work in 1998. 88 It would appear that Marie is presently paying $75 a week in respect to the amount of her housing loan. The evidence does not disclose how much is currently owing on that loan. 89 Marie, as a former wife of the deceased is an eligible person within paragraph (c) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, she has the standing to bring the present proceedings. However, since she is an eligible person only within that paragraph of the definition, it is necessary (pursuant to section 9(1)) for her to establish that there are factors which warrant the making of the application. Something more than the mere fact of the former relationship between Marie and the deceased is required. 90    The marriage was short, approximately eighteen months. It culminated in consent orders, sanctioned by the Court, which provided for maintenance for her children, but not for Marie. It has not been suggested, nor could it be, that Marie during the marriage contributed to the building up of any assets of the estate of her former husband. 91    Apart from one isolated occasion in about 1972, there was no contact between Marie and the deceased for twenty-five years. 92    I do not consider that there is any basis upon which community expectation would regard her as having any legitimate claim upon the bounty of the deceased. 93    Subsequent to her marriage to the deceased Marie had a considerably longer marriage to Mr Lambly, from 1991 to 1998. That marriage has not yet been dissolved, although Marie has already received a substantial property settlement from Mr Lambly. 94    Marie has led a totally separate life from the deceased. Soon after the termination of her marriage to him she formed another significant relationship with a man upon whom she was for a period dependent and who was the father of her child Christopher, born in 1975. Subsequently she was married to her second husband for a period of seven years. 95    For a former wife to succeed in a claim, some continued degree of contact, or a claim based upon community expectation would ordinarily be required. The benefit to Marie from her subsequent relationship and her later marriage, from her property settlements and her financial arrangements, together with the extremely short duration of her marriage to the deceased and the long period of total absence of contact with him are such that I do not consider that she has established that there are any factors which warrant the making of the present application. 96    Even if (contrary to my foregoing conclusion) I were to be persuaded that there were factors which warrant the making of the present application, I am not satisfied that, in the context of the competing claims of other eligible persons upon the testamentary bounty of the deceased (a matter to which I shall return later in this judgment), Marie has established an entitlement to an order for provision. 97    In consequence of my foregoing conclusions concerning the elements of Marie’s claim (other than her application for extension of time), and of my ultimate conclusion that her claim would not succeed, there is no purpose in my making an order for an extension of time. Accordingly, I propose to dismiss Marie’s claim. 98 I turn now to the claim of Simon. As I have already recorded, he is presently thirty-two years of age. He holds a Bachelor of Arts degree from the University of Newcastle. He was employed in a civilian capacity by the Commonwealth Department of Defence for a period of two years. However, he gave up that employment to pursue a career as an actor. He says that at the conclusion of his training in that profession he proposes to make acting his life’s career, and that he cannot contemplate following any other career. 99 Whilst he was overseas in 1993 and 1994 Simon worked part-time both in England and in the Czech Republic. 100 He fathered a child, Jordan, who was born on 11 February 1995. That child resides with his mother in Ireland. From time to time, when he can afford them, Simon sends contributions of a financial nature towards the upkeep of Jordan. 101 At the commencement of the proceedings Simon was attending a course at a private actors school, the Actors Centre, Surry Hills. That course required attendance part-time for twenty-four hours a week on three days each week. Simon was at that time employed by the Department of Community Services as a part-time care worker, working with people suffering from intellectual disabilities. He did not have any formal training in that field, but apparently obtained his position as a result of experience which he has received whilst working with his sister Genevieve. His income from that employment varied between $275 and $300 net a week, depending upon the hours which he worked. 102 In order to pay for the fees of his acting course Simon obtained a personal loan from the Commonwealth Bank. 103 Simon subsequently returned to the United Kingdom, to continue his training as an actor. Since September 1999 Simon has been a student at the Royal School of Performance Theatre in London. Oral evidence was given by him concerning his current financial and material circumstances. His course fees are £330 every three months. His only income is from part-time work in a pub, for which he receives the equivalent of about $80 a week. Apparently that is the maximum amount which, as a visitor to the United Kingdom, he is legally permitted to earn. Simon’s current expenses include, as well as the fees for his acting course, rent of £250 a month for the premises in which he is currently residing at Cricklewood, a suburb of London. 104 The evidence is most unclear concerning the personal loan which Simon obtained from the Commonwealth Bank. In one affidavit it is referred to as a loan which he obtained in 1994, in another affidavit it is referred to as a loan which he obtained in 1996. In one affidavit it is referred to as a loan in an amount of $4,500, whilst in his oral evidence he speaks (T36) of an amount of $20,000. He says that he is repaying the loan at $342 a month, in addition, he is repaying a Visa Card debt at $45 a month. He presently has $1,200 in his bank account. Simon has nothing in the way of assets. 105 In about 1987, when he was aged about nineteen, Simon had a meeting with his father, the first such contact they had had since Simon was an infant. That meeting was instigated by Simon. Apparently Simon and the deceased got on well together at that meeting. A further meeting was proposed by Simon, but had to be cancelled by the deceased, apparently on account of the deceased’s deteriorating state of health. 106 Simon has been receiving counselling, and also has been seeing a psychiatrist, on account of what he described in his evidence as feelings of rejection resulting from the lack of contact with his father. 107 Simon, as a son of the deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, he has the standing to bring the present proceedings. 108    It has been submitted on behalf of the defendants that it is through Simon’s own choice that he gave up what was apparently a stable and reasonably well remunerated job in the Commonwealth public service, in order to make his own career choice as an actor and to travel overseas in 1993 and 1994. Further, that in making the choice to follow an acting career, he must have perceived the possibility of future success and substantial financial rewards. 109    The Court recognises, however, that throughout the entirety of his lifetime Simon, for all practical purposes, was totally disregarded and rejected by his father, and that, in consequence, he was deprived of benefits, both material and emotional, which a son might reasonably expect to receive from a father. 110    It may be that in the future Simon will achieve success in his chosen career as an actor, and will receive considerable material and financial rewards. Nevertheless, the Court must look to his application for provision in the circumstances which presently exist. Those circumstances are such that Simon has little in the way of assets, and little in the way of income. He has an obligation, which he attempts to meet to the extent of his ability, to provide maintenance and support for his infant son. It seems to me, therefore, that (subject to the competing claims of the other eligible persons who have a claim upon the testamentary bounty of the deceased) Simon has established an entitlement to an order for provision which would enable him pay off his debts, to have a fund to enhance somewhat his present rather frugal lifestyle and to provide for contingencies, and to assist his advancement in life during the doubtless lean period when he embarks upon his acting career. An appropriate amount for such provision would be a legacy in the sum of $50,000. 111    The foregoing amounts to which an entitlement has otherwise been established by Genevieve and Simon must, however, be considered in the context of the competing claims upon the testamentary bounty of the deceased of the other eligible persons, who are his widow Ines and his infant daughter Jacqueline. 112    Under the terms of the will Ines receives the substantial part of the estate of the deceased, consisting of the house property and its contents, the motor vehicle and two thirds of residue. Jacqueline receives the remaining one-third of residue. 113    Upon my calculation, that residue consists of the land at Otway Street (to which a value of $15,000 is now ascribed), the interest of the estate in the Station Place property (to which property a valuation of $390,000 is most recently ascribed; thus the interest of the estate is $260,000), stock (to which Ines ascribes a value of $195,000), and a delivery truck ($5,000), thus giving for residue a total value of $475,000. The liabilities of the estate, which must be met firstly out of residue, total $200,000. Thus there is a net residue of $275,000. In addition there must be considered as assets of the estate, forming part of residue, the additional interests in the partnership J. H. Freestone which have accrued to the estate of the deceased consequent upon the death of his parents. Those additional interests total almost $100,000. 114    Thus, had it not been for the present proceedings, there would be available for distribution between Ines and Jacqueline a net residue of about $375,000. The practical effect, in monetary terms, would be that, in consequence of the provisions of the will, Ines would receive from residue about $250,000 and Jacqueline would receive from residue about $125,000. 115    It must, however, be appreciated that in consequence of the institution of the present proceedings, the estate of the deceased will be further eroded by payment of the costs, at least of the defendants, and, in the event that they succeed in obtaining an order in their favour, also of the plaintiffs, Genevieve and Simon. No precise information was placed before the Court concerning the amounts of those costs. However, it would appear that the costs of the estate already total at least $30,000. If the costs of Genevieve and Simon be treated as totalling no less than those of the estate, it would be prudent to allow for a total amount of at least $80,000 to be deducted from residue to reflect provision for those costs. That would mean that there would be an amount of about $290,000 remaining in residue, to meet any orders for provision in favour of Genevieve and Simon and the competing claims of Ines and Jacqueline. 116    Upon the foregoing calculations, therefore, after provision has been made for the proposed legacy of $103,000 for Genevieve, there would remain $187,000 to meet any legacy for Simon, with the balance of the residue then being divided in accordance with the terms of the will between Ines and Jacqueline. If Simon receives $50,000, that would mean that Ines would receive about $91,000 of residue and Jacqueline would receive about $46,000 of residue. 117    Evidence has been placed before the Court concerning the significant contributions which Ines made towards the building up of the assets of the estate, in particular, towards the establishment and the continuation of the furniture business, which constituted the major asset in the estate of the deceased. 118    From the time of her marriage to the deceased Ines participated in the furniture business. However, it was not until 1984 that she commenced to receive payment for that activity, in an amount of $50 a week. 119    Ines married her present husband Lesley Ashley Darcy on 30 September 1995. He currently works as an irrigation contractor. He is the owner of a residence at 1 Copeland Street, Richmond, which was purchased by him in 1988 for $60,000, but in 1997 was valued by the Colonial State Bank at $120,000. Mr Darcy currently receives rent of $457 a month for that house property. 120    Mr Darcy operates his business from a shed which is located at South Gundagai. The property upon which that shed is erected was purchased by him in about 1994 for $33,000. 121    In August 1997 Ines and Mr Darcy conjointly purchased a rural property at Batlow for $159,000. That property (which had previously been part of an orchard) consists of 450 acres of unimproved land, with an old fibro house standing thereon. Upon the Batlow property Ines and Mr Darcy currently depasture about 30 cattle, whose average value is in the range $300 to $400 a head. 122    Upon my calculation, therefore, the three pieces of real property which are owned by Ines and her husband, either jointly or severally have a total value of about $312,000. 123    Ines and Mr Darcy currently owe about $220,000 to the State Bank. That debt, for money borrowed in order to purchase the Batlow property and for money borrowed from the Colonial State Bank to pay out an earlier mortgage held by the Commonwealth Bank over the Copeland Street property, is secured over the three pieces of realty, being the farm at Batlow, Mr Darcy’s house at Copeland Street, Richmond, and Mr Darcy’s workshop at South Gundagai. 124    Mr Darcy has three daughters all of whom are now adults. 125    The only other eligible person is Jacqueline Freestone, the only child born to the marriage of the deceased and Ines. Jacqueline is presently sixteen years of age. She is in Year 11 of High School. She has no assets and no liabilities, and is dependant upon her mother and Mr Darcy. In her affidavit of 20 October 1999 Ines sets forth details of the urgent need which Jacqueline has for orthodontic treatment, which will cost $4,200, and which will be incurred over a period of two years from late 1999. She also suffers from a skin problem which will require cosmetic surgery. 126    Ines has ambitions that Jacqueline should undertake a university course. If she attends university in Canberra she will require a motor vehicle and accommodation. If she attends Charles Sturt University in Wagga Wagga she will also require funds sufficient for accommodation in that city. 127    The Courts have time and again emphasised the nature of the responsibility of a testator to his widow. In the instant case, however, the Court cannot disregard the fact that since the death of the deceased Ines, his widow, has entered into another marriage, and that she is entitled to look to her present husband, as well as to the estate of her previous husband, for her support and maintenance. 128    I have reached the conclusion that the competing claims of Ines and Jacqueline upon the estate of the deceased (claims which the deceased himself recognised by the very terms of his will) will not have the effect of reducing, or extinguishing, the orders for provision in favour of Genevieve and Simon to which an entitlement has by those plaintiffs been otherwise established. It will be apparent that the claim of Genevieve upon the estate of her father is a significantly greater claim than that of her half-sister Jacqueline. Further, that Jacqueline has had the benefit of a secure family upbringing in a household of two parents for most of her life, a benefit of which both Genevieve and Simon were deprived. 129    I have not heard any submissions as to costs. In proceedings 4552 of 1994 I propose that the usual orders for costs should be made. In proceedings 1461 of 1997 I propose that the plaintiff Simon Robert Freestone should receive his costs out of the estate; that the plaintiff Marie Lyn Govers should pay the costs of the defendants in respect to her claim; and that the defendants should be entitled to receive from the estate of the deceased the difference between their costs on the indemnity basis and the costs which they might recover from the plaintiff Marie Lyn Govers. 130    If, however, any party wishes to submit that some other costs order should be made, I will allow an opportunity for argument as to costs. 131    Further, it is appropriate that the legacy for Genevieve should be held on her behalf not by her tutor, but by a statutory entity, such as the Protective Commissioner or the Public Trustee. Accordingly, I propose to reserve liberty to apply in respect to the identity of such a trustee, and in respect to any other orders of a procedural nature which become necessary in that regard. 132    Accordingly, unless within seven days from the date hereof any party arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders:

4552 of 1994 Genevieve Marie Govers v Barry Luff and Ines Freestone
1. I order that the plaintiff receive a legacy in the sum of $103,000 out of the estate of the late Robert Clarence Freestone (“the deceased”), such legacy not to bear interest if paid on or before 7 July 2000.
2. I order that the aforesaid legacy be paid to a trustee, to be appointed by the Court for such purpose, who shall hold such legacy on trust for the benefit of the plaintiff.
3. I direct the plaintiff on or before 23 June 2000 to bring in short minutes of order in respect to the appointment of the foregoing trustee, and in respect to any other matters relevant to the powers and duties of such trustee and to the administration of such trust.
4. I reserve to the plaintiff liberty to apply in respect to the matters referred to in order 3 hereof.
5. I order that the costs of the plaintiff on the party and party basis and the costs of the defendants on the indemnity basis be paid out of the estate of the deceased.
1461 of 1997 Marie Lyn Govers and Simon Robert Freestone v Barry Luff and Ines Freestone
1. I order that the claim of the plaintiff Marie Lyn Govers be dismissed.
2. I order that Simon Robert Freestone receive a legacy of $50,000 out of the estate of the late Robert Clarence Freestone (“the deceased”), such legacy not to bear interest if paid on or before 7 July 2000.
3. I order that the costs of the plaintiff Simon Robert Freestone be paid out of the estate of the deceased, such costs to be on the party and party basis.
4. I order that the plaintiff Marie Lyn Govers pay the costs of the defendants, such costs to be on the party and party basis.
5. I order that the defendants be entitled to retain or to recoup out of the estate of the deceased the difference between their costs on the indemnity basis and the amount of the foregoing costs which they recover from the plaintiff Marie Lyn Govers.

133    In each matter the exhibits may be returned.

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Last Modified: 09/26/2000