Lesley TRITTON v Leslie David Rogers

[2002] NSWSC 1169

CITATION:	Lesley TRITTON v Leslie David ROGERS; Estate of the late Christian Mark MULLER [2002] NSWSC 1169
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 2249/2001
HEARING DATE(S):	29/11/2002
JUDGMENT DATE:	9 December 2002
PARTIES :	Lesley TRITTON - Plaintiff Leslie David ROGERS - Defendant
JUDGMENT OF:	Acting Master Berecry at 1

COUNSEL :	Mr M S Willmott - Plaintiff Mr J Viney - Defendant
SOLICITORS:	Eric Butler - Plaintiff L D Rogers - Defendant
CATCHWORDS:	FAMILY PROVISION ACT - Former de facto partner - separated at date of death - five year relationship - child of relationship - s 16 factors - sufficiency of explanation - likely prejudice to both parties - unconscionable conduct - moral claim - s 9 additional factors - balance between need created as a result of relationship with the deceased and subsequent events.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Re: Guskett (deceased) (1947) VLR 212 Massie v Laundy (unreported, Young J, 7 February 1986) Lewis v Lewis (2001) NSWSC 321 Fancett v Ware, unreported 3 June 1986, Needham J Re: Fullop (Deceased) 91987) 8 NSWLR 679
DECISION:	1. Time for bringing these proceedings be extended up to and including 19 April 2001 2. Out of the estate of the deceased the plaintiff be paid a lump sum of $25,000.00 3. The plaintiff's costs be paid out of the estate on a party/party basis 4. The defendant's costs be paid out of the estate on an indemnity basis.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING MASTER BERECRY

MONDAY, 9 DECEMBER, 2002

2249/01 LESLEY TRITTON v LESLIE DAVID ROGERS; ESTATE OF THE LATE CHRISTIAN MARK MULLER.

JUDGMENT

1 MASTER: On 19 April 2001 the plaintiff commenced proceedings by way of summons seeking an order pursuant to s 7 of the Family Provision Act 1982 for provision out of the estate of the late Christian Mark Muller. Further, an order that the time for making an application under the Act be extended. The deceased died on 21 July 1997.

Background

2 The plaintiff brings the application on the basis that she is an eligible person pursuant to s 6(1)(d). The plaintiff and the defendant began living as a de facto couple in late February 1991. In September 1991 they purchased a property at Marayong. The property was purchased in the name of the deceased and the deceased made the mortgage repayments. At this time the plaintiff was pregnant. At some stage during the course of her pregnancy she ceased working at a florist shop. Up until that time she had been earning an income of $50 per day. However, there is no evidence of how many days each week she worked. During the first seven months of their relationship there is no evidence of what roles each party played in the relationship. In the absence of any evidence I will assume that they carried out the traditional roles in a relationship and both made contributions from their salaries towards their day to day living expenses including any rent payable in this period. However, I note that for the whole of this period they resided either at the deceased’s mother’s house in Blacktown or at the plaintiff’s parents’ house in Blackett.

3 Their child, Axel was born on 29 February 1992. The plaintiff’s evidence is that during the period between September 1991 and January 1994 she was primarily responsible for the household duties such as washing, ironing, cooking and the like and was the primary carer for Axel. Her evidence is that the deceased continued to work and supported both she and Axel and paid the electricity, phone and gas accounts. At about the time Axel was six months old the plaintiff began receiving a single parent pension. Her evidence is that from the pension she purchased clothes for Axel and herself and on occasions food. During this period the deceased also contributed amounts of up to $200.00 from time to time to purchase extra things.

4 Both the deceased and the plaintiff had drug problems. In fact they met at Wisteria House in January 1991. She was a heroin addict and he was an alcoholic. The plaintiff’s evidence is that she went onto the methadone program and between 1991 and 1995 only occasionally used heroin. Her evidence was that she is no longer addicted to the drug. However, she continued to remain on the methadone program. During this period the deceased’s addiction to alcohol continued.

5 By January 1994 the plaintiff had become impatient with the deceased because of his drinking problem and his failure to make a commitment of marriage to the plaintiff. She moved out of the family home with Axel in January of that year and rented a place at Paterson. Her evidence was that the deceased did not want her to leave. She remained at Paterson for three months. During this time she lived on a pension although the deceased gave her cash to meet her living expenses. The parties visited each other every week-end during this period. The plaintiff’s evidence is that the deceased’s living conditions were disgusting. His basic hygiene needs such as showering and brushing his teeth had been neglected. She also gives evidence that he was not eating properly and was drinking heavily. They sold the Marayong property and resumed cohabitation. In June 1994 they rented a house at Hazelgrove for a period of twelve months. The lease was in the deceased’s name and at this time he bought her a motor vehicle for $3,500.00. The deceased continued to pay the rent, electricity, gas and phone and the plaintiff purchased all food and clothes for the family.

6 The plaintiff maintains that they continued to live in a de facto relationship up until the end of 1996. Whilst she conceded that there were periods when he would spend part of the week at his mother’s place and part of the week with her and Axel, and on that basis in her opinion there was a continuing relationship. However, it would appear from the evidence that that was not the case.

7 The Hazelgrove property was rented for a twelve month period. There is no evidence that the lease was renewed on a week to week tenancy. Exhibits “1” and “2” (application initiating proceedings for custody and custody and access order of the Local Court at Blacktown). These show that the parties were residing apart by early May 1996. Exhibit “3”, a discharge summary from Cumberland Hospital dated 5 December 1995 gives the plaintiff’s address at Box Hill. The plaintiff’s evidence is that the parties commenced residing at Box Hill sometime in August 1996. However, it would appear from exhibit “3” that the plaintiff was residing at Box Hill since at least December 1995. Having regard to her evidence concerning the lease of Hazelgrove it would suggest that sometime in July 1995 they commenced residing at Box Hill. I prefer the independent evidence on this point to that of the plaintiff. I, therefore, assume that the plaintiff commenced residing at Box Hill in either July or August 1995. She resided at those premises with the deceased and with Axel. I accept her evidence that during this period she continued to receive the pension and the deceased paid the rent. Her evidence is that she continued to do the household duties. The deceased continued to work and every two or three weeks he would provide her with $150.00 towards the family’s food and clothing for Axel. I also accept her evidence that during this period they got on well. Her evidence is that the deceased continued to drink heavily during this period and, in fact, lost his driver’s licence. On the independent evidence by May 1996 the parties were no longer residing together. The deceased had returned to his mother’s place and the plaintiff continued to reside at Box Hill. Therefore, in my view the relationship ended sometime about April 1996.

8 In December 1996 the deceased had taken Axel from the plaintiff. The evidence is that the deceased had obtained an interim custody order for Axel. This continued until the deceased died.

9 The plaintiff’s evidence was that she and the deceased continued to have a good relationship, although he was not prepared to drop the custody proceedings. There does not appear to have been a suggestion that the parties were contemplating resuming their relationship. In December 1996 the defendant informed the plaintiff that he had been diagnosed as suffering from psychotic schizophrenia. During this period the plaintiff commenced a relationship with another man. As a result of this relationship she had two children by him. The second child was born on 7 August 1999. It would appear that from December 1996 the deceased only visited the plaintiff once or twice up until the date of his death.

10 The plaintiff’s evidence is that she is still on the methadone program. However, that is being slowly reduced. She has not taken heroin since the mid 1990’s. The plaintiff admitted that she lied to the Cumberland Hospital in 1995 when she sought admission. The admission was based on the fact that she was drug dependent. However, she states that at that stage she was not dependent. I do not think that much turns on this but I am sceptical of the plaintiff’s evidence.

11 After the death of the deceased the plaintiff was eventually granted custody of Axel. Axel continues to live with the plaintiff and the evidence is that she is uses her best endeavours to provide Axel with a secure and happy home life. He appears to be doing reasonably well at school and has developed interests and has become a proficient rock climber. There appears to be much in Axel’s life which can be regarded as a positive. The plaintiff wishes to get back into the workforce. However, in her present financial position she is unable to afford to pay child minders to look after Axel before and after school. Her evidence in her affidavits is that she would like to become a waitress. In cross-examination she expressed the desire to learn to use a computer so that she can obtain clerical employment. In her words she thinks she can do something better than waitressing.

Extension of Time

12 Section 16(1)(b) defines the prescribed period in which an application may be made in respect of a deceased’s estate. This period is eighteen months after the death of the deceased person. Section 16(2) prevents an order being made pursuant to s 7 if the application is not brought within the eighteen months. Section 16(3) prevents the Court from extending the time unless sufficient cause is shown, the application not having been made within that time. There are many decisions dealing with the question of the extension of time. In Re: Guskett (deceased) (1947) VLR 212 the Court said:-

“It is for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to dealt with on its own facts but it would seem necessary for an applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time.”

13 In Massie v Laundy, (unreported, Young J, 7 February 1986) his Honour said that the following are factors to be considered:-

(a) Is the reason for making a late claim sufficient?
(b) Will the beneficiaries under the will be unacceptably prejudiced if the time were extended?
(c) Has there been any unconscionable conduct on either side which would enter into the equation?

14 In Fancett v Ware, (unreported, 3 June 1986, Needham J) his Honour said there was no purpose in extending the time with respect to a claim which must fail. In Lewis v Lewis, (2001) NSWSC 321, Hodgson CJ in Eq said as follows:-

“82. In general terms, it seems clear that matters relevant to the exercise of discretion to extend time under s 16 include the existence and strength of a case for relief under the Act, the explanation given for failure to commence proceedings in time, any prejudice caused by the late commencement of proceedings, and any unconscionable conduct by either side. The second factor, the explanation, is specifically dealt with in s 16 of the Act, which, in the absence f consent, precludes an extension being granted unless “sufficient cause is shown for the application not having been made with “the prescribed period.
83. The wording of that provision is a little curious. If read literally it would appear to be a tautology: the application was not made within the prescribed period, so in some sense there must have been sufficient cause for this to happen. The expression “sufficient cause” must be taken to mean “sufficient explanation” or “sufficient justification or excuse”. The question then is, sufficient for what? Again, it cannot be sufficient for the application not having been made, because again that would seem to give rise to a tautology. Rather, it must be something like “sufficient in all the circumstances to justify the granting of an extension of time”.
84. In this case, in my opinion the plaintiff had a strong moral claim and a strong case generally, as I have already considered. “

15 Hodgson CJ in Eq introduces a concept of a moral claim in respect of the plaintiff’s application in those proceedings. It is, of course, still the position that a moral claim is a consideration in Family Provision Act matters. Whilst in some cases the Court has moved away from the concept of a moral obligation, nevertheless there are many authorities which refer to moral obligation or moral claim. Therefore, it would seem to me that having regard to the factors that the Court has applied to these applications in the past, there is also a requirement to be mindful of any moral claim or conversely any moral obligation that a plaintiff or a deceased had in respect of the other party.

16 The deceased died on 21 July 1997. The plaintiff’s evidence is that she made enquiries of the executor concerning the superannuation monies and other funds held on behalf of Axel, shortly after the death of the deceased. Her evidence was that she wanted to ensure that the deceased’s brothers and mother did not obtain the proceeds from the funds. In cross-examination she denied that she was given any advice concerning her rights under the Family Provision Act. The question was put to her on a number of occasions and on each occasion she denied quite strongly that she was aware of such rights.

17 Exhibit “C” is the former solicitor’s file in respect of enquiries concerning the C+ Bus Superannuation Policy, issues of access concerning the paternal grandmother and a possible application under the Family Provision Act. From the solicitor’s file it would appear that the first enquiries of legal aid were made in July 2000 concerning a possible claim and extension of time under the Family Provision Act. This would accord with the plaintiff’s evidence that she had no knowledge of her rights under the Family Provision Act. The period within which the application should have been brought was eighteen months after the death of the deceased, i.e. by 21 January 1999.

18 It would be reasonable to assume that sometime in or about July 2000 the plaintiff became aware that she had certain rights in respect of bringing proceedings against the estate of the deceased. The solicitor’s correspondence shows that a legal aid application was lodged and there was a series of letters between the solicitor and Legal Aid concerning the application. There were two applications made. One in respect of the monies held by the trustee of the deceased’s estate and secondly, the application under the Family Provision Act. Both applications were rejected by Legal Aid as special circumstances were not established.

19 On 29 August 2000 the solicitor wrote again to Legal Aid making enquiries concerning bringing an application out of time under the Family Provision Act. On 3 January 2001 Legal Aid wrote to the solicitor referring him to previous correspondence it had written to him and also referring to correspondence to the plaintiff and the reasons for the rejection of the applications for legal aid.

20 On 27 February 2001 the plaintiff withdrew her instructions to her then solicitor. The present solicitor was subsequently instructed to look after her interests.

21 On 19 April 2001 the current proceedings were commenced. The plaintiff’s first solicitor on turning his mind to the question of an application under the Family Provision Act in July 2000, asked for an urgent response by Legal Aid. It would appear, however, that neither he nor counsel who gave an advice was prepared to act for the plaintiff in the absence of assistance from Legal Aid. When that assistance was denied he continued to seek the assistance by way of the appeal process. It was approximately another nine months before the proceedings were commenced by the current solicitor.

22 In my view it is a borderline case as to whether or not there should be an extension of time. The client having become aware of her rights under the Family Provision Act in mid 2000 was required to commence proceedings as soon as possible. However, having regard to her financial circumstances it is probably unreasonable to expect a single mother with three young children who is in receipt of a pension and assistance from friends, to have sufficient funds to commence an application without the assistance from an outside body. It is clear that once the current solicitors took over the matter they were prepared to commence the proceedings regardless of whether or not Legal Aid reviewed their current position. In that context it could be said that there was a short period of less than two months between the plaintiff giving instructions to the previous solicitor to cease to act and the present solicitor commencing proceedings and the commencement of proceedings.

23 It could then be summarised that the plaintiff’s evidence is that she did not become aware of her rights under the Family Provision Act until mid 2000; she did not have the funds to bring proceedings and would require the assistance of either Legal Aid or some other organisation. Legal Aid refused her applications for assistance for the prosecution of a Family Provision Act matter. It was only after she had obtained the services of a solicitor who was prepared to commence the proceedings on her behalf without the assistance of legal aid that the proceedings were commenced. In my view, the plaintiff has given a sufficient explanation as to why the application is made late.

24 It is then necessary to consider whether there is any prejudice that is likely to be suffered by the beneficiaries. The only beneficiary of the deceased’s estate was their son, Axel. He was and is in custody of the plaintiff. She has been responsible for his upbringing and welfare since shortly after the death of the deceased. It was submitted by the defendant that to extend the time for bringing the application would cause a prejudice to the beneficiary because of the costs associated with the application and thus Axel’s entitlement under the deceased’s estate would be reduced accordingly. In my view, prejudice to the plaintiff must also be taken into account. It must be remembered that Axel, in all probability, will remain with his mother until he is old enough to be independent and making his own way in life. She will be the primary carer for him and provider of food, clothing, shelter and education. It seems to me that whilst there is a possibility that the funds that are currently held on behalf of Axel will be depleted if any provision is made for the plaintiff, such provision for her will, in fact, ultimately benefit Axel; if not in financial terms perhaps in terms of quality of life. In my view, there is not an unacceptable prejudice that Axel would suffer if leave is granted to his mother to extend the time for bringing the application.

25 There has been nothing put which demonstrates there has been unconscionable conduct on the part of either side which would result in the Court exercising its discretion to refuse the plaintiff’s application to extend the time. The plaintiff is a person of limited financial means and limited education. To some extent she was caught in a bureaucratic fight between her former solicitor and Legal Aid. She was very much unable to control the outcome of the legal aid application.

26 Therefore, in my view it is appropriate to extend the time for bringing the application. The order I make therefore, is that the time to bring an application under the Family Provision Act pursuant to s 7 be extended up to and including 19 April 2001.

Eligibility

27 The plaintiff and the deceased lived in a de facto relationship. The evidence before me established their relationship began in about February 1991 and ended sometime prior to May 1996. Thus, the relationship lasted for a period of some five years. During this period the plaintiff had a child to the deceased. With the exception of a period in 1994, the parties stayed together until the end of the relationship. Both parties contributed to the relationship and whilst she was on the methadone program and he suffered alcohol addiction, they appeared to have a happy family relationship. It is clear from the evidence that both parties loved Axel. The plaintiff performed the household duties and was the prime carer for Axel during this period. The deceased was the primary breadwinner in the family and was responsible for the rent and mortgage repayments. Although the plaintiff did not work, she was in receipt of a pension and monies from the pension were used to contribute to the welfare of the family unit. However she predominantly relied on the income earned by the deceased to cover mortgage repayments, rent and also contributions towards clothing and food. In my view, it is clear that she satisfied both limbs of s 6(1)(d), namely that she was living in the same household of which the deceased was also a member and was dependent on him.

28 Having regard to the age of Axel at the date of death of the deceased, it is clear that had the deceased not died that both he and the plaintiff would have made contributions, both financial and non-financial to the upbringing of Axel. That burden is now to be carried by the plaintiff. Therefore, there is to some extent a dependency on the deceased’s estate to share in that burden.

Section 9

29 Section 9(1) of the Act applies to eligible persons identified in s 6(1(c) and (d). People falling within either of these categories are not regarded unless there are other factors as natural objects of testamentary recognition by the deceased. A discussion in relation to this and the interplay between s 6(1)(e)(d) and ss 9(1) and (3) were considered by McLelland J (as he then was) in Re Fullop (deceased) (1987) 8 NSWLR 679. In essence what his Honour said was that the section suggested there must be other factors which when added to the facts which render an applicant an eligible person, give her the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased.

30 The plaintiff’s evidence is that she contributed in a non-financial way throughout the course of the relationship as well as contributions through her fortnightly pension. There was also evidence put on by her that she contributed a sum of money towards refurbishment of the kitchen in the property they had purchased at Marayong. There is no evidence put on on behalf of the defendant which contradicts the plaintiff’s evidence. The plaintiff contributed significantly as homemaker during the period of the relationship.

31 Both parties could be regarded as living on the margin of society. The plaintiff had a heroin addiction and had been on a methadone program for a number of years but there had been lapses from time to time. The plaintiff was a chronic alcoholic. The plaintiff’s evidence is that during the period in 1994 when they separated they continued to see one another and he continued drinking and neglected his physical wellbeing. Her evidence was that he was living in disgusting conditions, was not eating properly and was not taking care of basic hygiene needs such as showering or brushing his teeth. Her evidence was that she felt sorry for him and agreed to resume cohabitation. It would appear that part of the reason for resuming cohabitation was to look after the welfare of the deceased.

32 The circumstances that existed before the death of the deceased were quite different to those that existed prior to their separation. The defendant whilst not living in a relationship with another person was nevertheless seeing another male and fell pregnant to him. During this period the deceased obtained custody of Axel and the plaintiff had access rights. However, they were still fond of each other during this time although the relationship did not develop. In any event she was pregnant to another man and subsequently had his child. Generally one could regard that as bringing to an end any emotional and financial commitment to one another thus perhaps severing the concept of one being the natural object of testamentary recognition by the other. However, in the circumstances of this case that, in my view, is not the case because of the tender age of Axel.

33 After the birth of her second child the plaintiff did not cohabit with the father of that child although, subsequently, she had another child to him and his mother provided some financial support for her and he appears to have provided some emotional support. They share the custody of their children. One child lives with her and stays with the father every second weekend and there is reciprocity with the child living with the father. Any provision to be made out of the estate of the deceased for the plaintiff must be considered in this context. Her needs which are not solely attributable to the fact that she responsibility for Axel. She also has one other child living permanently with her. It would seem to me that some of the matters that she identifies as needs are matters that should also be addressed by the father of her other two children. Her evidence is that she requires a new car to take Axel to and from school and to take him to sporting events. She also requires white goods for the home and has debts of approximately $9,000.00. That debt is made up as follows:-

To Pauline Griffith, the mother of the father
of her other two children $8,000.00
Parking and speeding fines, approximately $1,000.00

34 There is a shortfall of approximately $85.00 per week between her income and her living expenses. She is currently unemployed and with two young children her prospects of employment in the immediate future on a full-time basis are probably fairly remote.

35 The net estate will be approximately $195,000.00. The plaintiff’s solicitor is holding a further $33,000.00 in respect of a superannuation fund payout which must be applied to the needs of Axel. It is clear that the estate does not have sufficient funds to provide the plaintiff with an unencumbered property. The deceased made his will in 1994 and it is clear that his intention was that Axel should benefit from his estate. That testamentary intention should be maintained. However, it seems to me that some provision should be made for the plaintiff which will indirectly assist Axel during his adolescent years.

36 In my view, the plaintiff cannot look towards the deceased’s estate to provide for all her needs. The reality is whilst she is not living in a relationship with the father of her other two children, there is a responsibility that he must take in respect of those two children which also directly impacts on her. In my view, it would be appropriate for the estate to make some provision which would enable the plaintiff to go somewhere towards meeting some of the needs that she has identified and to give her a fund of money which she can use as an economic cushion until she is in such a position that she can go back into the workforce. In looking at an economic cushion I am looking at a period where Axel has reached an age where the plaintiff would feel quite safe about allowing him to go to and from school without being supervised by her.

37 An appropriate amount therefore for the plaintiff in my view, is an amount of $25,000.00. Therefore, the orders I make are as follows:-

1. That the time for bringing these proceedings be extended up to and including 19 April 2001.

2. Out of the estate of the deceased the plaintiff be paid a lump sum of $25,000.00.

3. The plaintiff’s costs be paid out of the estate on a party/party basis.

4. The defendant’s costs be paid out of the estate on an indemnity basis.

Last Modified: 12/10/2002