Lindsay Claude Buckmaster v Amy Jessica Dawson

[2005] NSWSC 57

CITATION:	Lindsay Claude Buckmaster v Amy Jessica Dawson & Anor [2005] NSWSC 57
HEARING DATE(S):	7, 8, 9 February 2005
JUDGMENT DATE :	10 February 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Bergin J
DECISION:	Provision made

CATCHWORDS:	Application for provision pursuant to s 7 of the Family Provision Act 1982 by partner of 20 years - Whether applicant and the deceased in a de-facto relationship - Whether in all the circumstances provision should be made
LEGISLATION CITED:	Family Provision Act 1982 Property (Relationships) Act 1984
CASES CITED:	Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Collins v McGain & Anor [2003] NSWCA 190 Luciano v Rosenblum (1985) 2 NSWLR 65 Marinis v Jeweller [2000] NSWCA 282 Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Permanent Trustee Co Ltd v Frazer (1995) 36 NSWLR 24 Singer v Berghouse (1994) 181 CLR 201
PARTIES:	Lindsay Claude Buckmaster (Plaintiff) Amy Jessica Dawson (1st Defendant) Simon Guy Dawson (2nd Defendant)
FILE NUMBER(S):	SC 04866/2004
COUNSEL:	P. Hallen SC (Plaintiff) J. Robson SC (Defendant)
SOLICITORS:	Uther Webster & Evans (Plaintiff) Delaney Lawyers (Defendants)

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BERGIN J

10 FEBRUARY 2005

4866/04 LINDSAY CLAUDE BUCKMASTER V AMY JESSICA DAWSON & SIMON GUY DAWSON

JUDGMENT

1 This is an application by the plaintiff, Lindsay Claude Buckmaster, for an order pursuant to section 7 of the Family Provision Act 1982 (the Act) that provision be made for his maintenance and advancement in life out of the estate of Helen Kay Dawson (the deceased) in addition to the provision made for him in the last will and testament of the deceased dated 17 May 2000 (the Will).

2 The application was heard on 7, 8 and 9 February 2005 when Mr P Hallen SC appeared for the plaintiff and Mr J Robson SC appeared for the defendants who are the children of the deceased and executors of the Will.

3 The plaintiff was born on 17 September 1942 and is presently 62 years of age. The deceased was born in 1945 and married Guy Dawson in 1969. The deceased and Mr Dawson separated in 1979 and divorced in 1981. Simon Guy Dawson, the second defendant and co-executor of, was born on 13 November 1973 and is presently 31 years of age. Amy Jessica Dawson, the first defendant and other executor, was born on 15 April 1976 and is presently 28 years of age.

4 The plaintiff and the deceased met in 1983 and commenced living together in the deceased’s townhouse in Waverton in May 1984. They lived with the defendants, the first defendant being at that time aged 8 years and the second defendant being aged 10 years. It is clear that the defendants had problems adjusting to this new situation exacerbated by the limited space in the townhouse. The deceased and the plaintiff decided that they would look for larger premises to accommodate the children and themselves. Early in 1987 the townhouse was sold and the plaintiff purchased the property at 14 Wallace Street Willoughby (the property) with the proceeds of sale of the townhouse and a bank loan. The property has always been in the deceased's name.

5 There is evidence of longstanding incompatibility between the plaintiff and the second defendant in particular. The second defendant went to Queensland to live with his father for two to three years in the 1980s. Mr Dawson had remarried and it is apparent that he and his wife had two children, boys, with whom the second defendant had a good relationship. Although the second defendant returned to live in the property after that time in Queensland, he moved out twice before finally leaving home in 1996.

6 The first defendant seems to have had less difficulty in accommodating the change of situation after the plaintiff began living with the deceased, although the relationship between the first defendant and the plaintiff has, it seems, deteriorated in more recent times.

7 The relationship between the plaintiff and the deceased lasted 21 years until her death on 2 March 2004. For 20 of those years they were living together. In September 2000 the deceased was diagnosed with ovarian cancer. The course of the deceased's illness and treatment was clearly a difficult and traumatic time, not only for the deceased but also the defendants and the plaintiff. There is no issue that the plaintiff was the principal carer of the deceased during her illness to the time of her demise. Perhaps the best description of the relationship is that written by the deceased in March 2003 in a "Blessings Book" as follows:

Lindsay-my rock and friend for almost 20 years, who has always been there for me – in good & bad times, and especially over the last few months during my illness. He has suffered with me and given me so much loving care-I shall never be able to thank him enough.

8 The defendants did not concede the existence of a de facto relationship between the plaintiff and the deceased. The first defendant gave evidence that her mother informed her that her relationship with the plaintiff was in the nature of a friendship. However the plaintiff gave evidence of an intimate sexual relationship during his life with the plaintiff that was not challenged. For whatever reason the conversation between the first defendant and the deceased occurred and notwithstanding such conversation there are a number of factors that point irresistibly to a conclusion that the plaintiff and the deceased were in a de facto relationship within the statutory meaning of that term: s 6 of the Act; ss 4 & 5 of the Property (Relationships) Act 1984.

9 The duration of the relationship of 20 years is not in issue. There is no suggestion that either the plaintiff or the deceased was in a relationship with any other person at any time during that time. The relationship appears to have been strong and not subject to any real suggestion of a breaking down at any stage. Although the second defendant suggested in his evidence that the plaintiff moved out of the property, it seems to me that the plaintiff’s absence living on his boat from time to time was to cater for his work and the exigencies of the adjustment period after he moved in to live with the plaintiff and the children. I am not satisfied that there was any breakdown in the relationship between the plaintiff and the deceased during the 20 year period.

10 There is no dispute that the plaintiff and the deceased lived together in a home owned by the deceased, firstly at Waverton and then at the property. I am satisfied that the plaintiff shared a bedroom with the deceased and otherwise treated the property as his own. The plaintiff made no monetary contribution to the purchase of the property, but I accept that he did quite a deal of work both by way of maintenance and refurbishment of the property, although a number of tradesmen also provided services in respect of the refurbishment and maintenance.

11 The plaintiff and the deceased did not have any mutual bank accounts, but there was a degree of financial inter-relationship between them. I accept that the plaintiff shared expenses with the deceased from time to time, including restaurant expenses, telephone accounts and other household expenses and that the plaintiff purchased various household items including a fridge.

12 The evidence including the letters written by the deceased to her mother (Ex. A), the Blessings Book (Ex B), and the detail provided by the plaintiff, demonstrates a high degree of mutual commitment between the plaintiff and the deceased to a shared life. In this regard the evidence of a number of witnesses called by the plaintiff is corroborative: (Sally Elizabeth Buxton; Dorothy Atkins; Margaret Anne Cant; Jean Kubale; Pamela Helen Broklesby and Robin Frederick Broklesby and Dr Brian Morton).

13 It is also clear that the plaintiff played some role in the lives of the defendants when they were young. There is evidence both oral and documentary of him going on outings with them and assisting in school arrangements. This aspect of the plaintiff's role was somewhat limited in part by reason of the difficulty in their relationship, particularly with the second defendant.

14 The deceased described the plaintiff to her general practitioner as her "partner". Although it was suggested that the deceased was careful not to describe herself as being in a de facto relationship, she did so in an immigration card on an international flight. However there is other evidence in which she had the opportunity to do so and chose to describe herself as "divorced". Irrespective of the way in which the deceased preferred to describe the relationship I am satisfied that the plaintiff and the deceased were in a de facto relationship and that the plaintiff is an eligible person to make the application: s 6 (1) of the Act.

15 The next question is whether an order ought be made under s 7 of the Act for provision out of the estate. It is agreed that the net distributable estate is $2.5 million. Each of the defendants has received approximately $760,000. The property is valued at $900,000. The Will provided a legacy of $50,000 for the plaintiff. It is conceded by the defendants that such legacy should be increased.

16 The evidence establishes that the day prior to her demise, the deceased had a conversation with the first defendant's partner, Mr Leon Allot, in which she suggested that the plaintiff should have a lump-sum cash payment of approximately $130,000 or $150,000 immediately, or alternatively, take such amount from the proceeds of the sale of the property. There was a plan for the deceased to see her solicitor to make a new will, but she became too ill and died before that could occur. The first defendant gave evidence in cross-examination that just prior to her demise the deceased was talking about the plaintiff "being able to stay in the house after she died". The first defendant gave evidence that the deceased said she was "worried that Lindsay would not have a place to live and that he would need time to get settled and that she was showing him that I understood that we - that she wanted him to stay in the house until he needed to leave" (tr. 65).

17 In deciding whether provision should be made out of the estate the often cited passage in Singer v Berghouse (1994) 181 CLR 201 at 209-210 is applicable:

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 . The determination of the first stage in the two-stage process calls for an assessment of whether provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which Court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.

18 It was submitted that at the first stage of the process regard should be had to prevailing community standards. In support of this submission reliance was placed on the following passage from the judgement of Sheller JA in Permanent Trustee Co Ltd v Frazer (1995) 36 NSWLR 24 at 46:

In deciding whether the provision for an eligible person is in adequate for that person's proper maintenance, education or advancement in life the Court should be guided by consideration of the provision which, in accordance with prevailing community standards of what is right and appropriate and in the certain stances mentioned in the Family Provision Act and then of obtaining, ought to be made in favour of the eligible person.

19 It was submitted that Sheller JA’s reference to the circumstances mentioned in the Act was a reference to the circumstances set out in s 9(3) of the Act which provides:

(3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration:
(a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:
(i) the acquisition, conservation or improvement of property of the deceased person, or
(ii) the welfare of the deceased person, including a contribution is a homemaker,
(b) the character and conduct of the eligible person before and after the death of the deceased person,
(c) circumstances existing before and after the death of the deceased person, and
(d) any other matter which it considers relevant in the circumstances.

20 In Collins v McGain & Anor [2003] NSWCA 190, Tobias JA, with whom Beazley and Hodgson JJA agreed, said:

42. There can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.
…
47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred.

21 In Bosch v Perpetual Trustee Co Ltd [1938] A. C. 463 Lord Romer said at 476:

The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the charter's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the adequate maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances. A father with a large family and a small fortune can often only afford to leave each of his children a sum sufficient for his 'adequate' maintenance. Nevertheless, such sum cannot be described as not providing for his 'proper' maintenance, taking into consideration 'all the circumstances of the case' as the sub-section requires shall be done. In the next place, it is to be observed that, when the condition precedent to the exercise of the powers given by the sub-section is shown to be fulfilled, those powers extend to making such provisions as the Court thinks fit for 'such' maintenance, that is to say, for proper maintenance.

22 Mr Robson SC for the defendants relied upon Marinis v Jeweller [2000} NSWCA 282 in which the Court, Mason P, Giles JA and Rolfe AJA, said:

[26] … We would reject the appellant's submission that adequate provision by a deceased person requires the deceased to ensure that an eligible person must be provided for to such a level as would ensure that his or her available assets are not reduced in consequence of the death and that the eligible person should not be obliged to re-arrange or re-organise his or her available assets.
[27] In many cases, adequate provision for a surviving spouse will require that the spouse continue to have access to the "matrimonial home". But this is not a universal proposition.

23 Mr Robson SC also relied upon Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47, Hodgson JA, with whom Young CJ in Eq and Palmer J agreed, said:

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

24 After referring to Luciano v Rosenblum (1985) 2 NSWLR 65 in which Powell J referred to the duty of a testator to a widow to ensure that "she is secure in her home", that she has "income sufficient to permit her to live in the style to which she is accustomed" and to provide "fund to enable her to meet any unforeseen contingencies", Hodgson JA continued:

[65] I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion, it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may make to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage occasioned by the greater responsibility which women often take in looking after children.

25 The financial position of the defendants is a little uncertain. The first defendant, although swearing affidavits last year that she was a full-time student, was in fact employed for 10 months of 2004, apparently after her mother's death. I have not been informed of the detail of her income during that period nor of her living expenses during that period. The first defendant has now moved to Whistler in Canada and she is living with her partner Mr Allott. I have not been informed of any detail of the living expenses of the first defendant and or the income of Mr Allott. The first defendant's affidavit of 8 February 2005 discloses an amount of $764,367.09 in an ING Direct Account, $468.63 in a Canada Trust account and $2201.65 in a Commonwealth Bank account.

26 The second defendant has given evidence that he has presently taken 12 months leave without pay by agreement with his manager. He is in the Information Technology industry and has indicated that he effectively needs some time to reflect on his future. It may well be that the reflection becomes easier by reason of the conclusion of these proceedings. The second defendant's affidavit of 8 February 2005 discloses a " net position” of $709,933.79, apparently as at 6 February 2005. The transaction statement annexed to that affidavit for the period 4 January 2005 to 4 February 2005 indicates withdrawals of approximately $16,000 but there has been no evidence in relation to those withdrawals. No evidence has been given in relation to the second defendant's expenses or requirements.

27 The plaintiff earned approximately $17,000 in the last financial year. In the present financial year he has invoiced $9,585.50 in relation to his business. It is obvious that his income was adversely impacted upon by his inability to work during the 2003/2004 financial year. In his role as principal carer of the deceased and from the evidence of the close personal care he provided to her, together with the grief attaching to the deceased's death and the litigious process, the plaintiff has not been in a position to earn a great deal from his business.

28 The plaintiff's assets include a one-bedroom investment unit at Crows Nest valued at $290,000 and a wooden boat valued at no more than $25,000. He has $45,954.90 in an ANZ bank account and $422.21 in an ANZ access account. His 1991 Mazda 626 is valued at $6,000. His total assets are approximately $367,000. There is a mortgage to Aussie Home Loans of $16,157.14 and a debt on an ANZ bankcard of $743,000, bringing his net assets to approximately $350,000.

29 The plaintiff's monthly outgoings are $1512.42 per month in relation to personal expenses and $415 per month in relation to expenses relating to the investment unit.

30 The plaintiff’s capacity to earn income is in issue. The plaintiff claimed that the death of the deceased has made it difficult for him to cope emotionally, which is affecting his ability to work. I accept the plaintiff's evidence in that regard and note that his general practitioner diagnosed him in April and May 2004 with high blood pressure. Medication was administered for that problem resulting in a reduction in the blood pressure as at June 2004. The prognosis recorded in a report dated 8 July 2004 is as follows:

The expectation is that Mr Buckmaster's bereavement will resolve over time but it is likely to settle within the usual timeframe of six months. His depression is likely to remain active and unresolved until Kay’s estate is settled at which time his financial and domestic future is known and secure. Treatment usually will be required for up to six months at which time the medication is expected to be gradually withdrawn. The management of his hypertension will continue dependent on accepted target values being reached. Resolution of the legal conflict and return to a regular lifestyle may allow the blood pressure to fall to normal levels. There is no guarantee that he will be able to withdraw the anti-hypertensive medication.

31 I accept that there has been a period of approximately 6 to 7 months in which the plaintiff's health has been adversely affected impacting upon his capacity to earn income. However I am satisfied that the plaintiff will be able to bring his considerable skills to his work as a boatbuilder and/or craftsmen/tradesman. The work that he has done on the property evidenced by the photographs Ex D suggests flexibility of employment. I am also cognizant of the plaintiff’s evidence in cross-examination as follows: "I am quite a skilled tradesmen and craftsmen, I am very proud of that and I am very proud of the work I have done in the house. Millionaires come from quite far and wide to have me do work on their boats" (tr. 34). The plaintiff agreed that his "work is in demand" in particular "when I am able to do it", however the plaintiff said "I am not physically able to do the work that I used to do thirty years ago" (tr. 34).

32 Having regard to the plaintiff’s evidence, it seems to me that the business or employment prospects for the plaintiff are very good. Notwithstanding that he is less agile than he used to be thirty years ago, his skills as a tradesmen and craftsmen are obviously still present and I am satisfied from his evidence will be a source of income for him.

33 I have read the letters written by the plaintiff to her mother. I am conscious that the first defendant is sensitive to her mother's privacy and the detail of those letters. Accordingly I do not intend to record the contents of the letters except to say that they demonstrate beyond any doubt that the plaintiff contributed enormously to the happiness of the deceased during the 20 years they were together. This much seems to me to be not in issue. I am satisfied that to a limited degree the plaintiff contributed financially by sharing expenses of the household and I am satisfied that to a limited degree he assisted with the upbringing of the children for a limited period before they became teenagers. The work the plaintiff did by way of refurbishment and maintenance around the home in my view improved the property. The second defendant referred to the plaintiff’s regular habit of washing dishes every evening. His contribution as a homemaker, although it seems as a quiet achiever, is obvious to me.

34 The character and conduct of the plaintiff both before and after the death of the deceased is not in question. Indeed he appears to be a man of great patience and compassion. He found himself in a situation of some delicacy vis-a-vis the children and, from the letters of the deceased, it is apparent he worked very hard to accommodate their difficulties in adjusting to the new situation.

35 The plaintiff's role as principal carer of the deceased during her illness is detailed in his affidavits and is evidenced from the documentary and photographic material. It is beyond doubt that during her illness the deceased's pain was made more bearable by the commitment, support and love of the plaintiff. Once again the deceased's words are apt. She said the plaintiff "has suffered with me and given me so much loving care".

36 It is also clear that the defendants and the deceased had a loving relationship notwithstanding what might be described as the usual fluctuations in familial peace. The plaintiff was able to allow the fostering of those relationships notwithstanding the difficulties to which I have referred. I am satisfied that that the plaintiff's contribution to the welfare of the deceased and the relationship with her through those 20 years, including the intense care for her in the last two of her years, is appropriately described as a great contribution.

37 I am satisfied that the provision in the Will is not adequate for the plaintiff's proper maintenance, education or advancement in life. Although it has been suggested that the defendants’ positions are not competing claims I have had regard to the evidence filed on their behalf in relation to their respective positions. It seems to me, having regard to their capacity to work, their relative youth and position in life, that they are well catered for by the amounts already paid to them.

38 Mr Hallen SC submitted on the plaintiff's behalf that the provision that would satisfy the statutory test requires the plaintiff to have the property absolutely and a “modest” fund of $100,000 to cater for the exigencies of life. The property is a four-bedroom home although one of those bedrooms is used as a study or for some other purpose. The plaintiff was cross-examined about his "need" for a four-bedroom home in which to live. He said: "I don't need, but it is my home in that I have lived there for so long and it means a lot more to me than a house, if I could say that, because I have put so much into it". I take from that evidence not only the physical work the plaintiff contributed to that home, but also the emotional and sentimental aspects of his commitment to it as well.

39 Mr Robson SC submitted that this is an appropriate case in which to grant a life interest by way of provision to the plaintiff. It was submitted that it would be appropriate to allow for a percentage of the value of the property to remit to the defendants if the plaintiff sells the house and, for instance, moves into a retirement village. It was submitted that this would give enough flexibility to the plaintiff, but also provide a fair distribution of the estate of the deceased having regard to the contents of the Will. Mr Robson SC submitted that although the courts have warned of difficulties with such provision, this is an appropriate case.

40 I do not agree. This plaintiff has not only had to deal delicately with the defendants adjusting to his relationship with the deceased but after the death of the deceased, has had to deal with the second defendant entering his premises with the assistance of a locksmith when he was not present. The second defendant gave evidence of his dislike for the plaintiff. To set up a regime whereby the plaintiff would be subject to scrutiny and indeed some control by the defendants would be far from making a provision that was adequate for the plaintiff’s proper maintenance and advancement in life.

41 Some criticism has been levelled at the conduct of the defendants. As I have said during the course of submissions I am satisfied that emotions are raw and that the conclusion of this litigation and a hopeful development of maturity will settle the hostility that seems patent. It may be that with maturity some of the conduct towards the plaintiff will be regretted.

42 In my view, taking all of the matters referred to earlier, the plaintiff has a very strong case for the property absolutely. It may be that he will utilise the property in a way that allows him to move into a different property, depending upon his needs as he grows older. I have, however, formed the view that it is not necessary to provide the plaintiff with a fund to ensure the adequate provision for his "proper" maintenance, education and advancement in life. The assets the plaintiff already possesses together with his skills as a craftsmen and tradesmen provide the plaintiff with an unavailable source of funds for the contingencies of life.

43 The plaintiff is entitled to the provision of the property absolutely. The parties are to bring in Short Minutes of Order including appropriate orders for the completion of documentation to effect the transfer of the property to the plaintiff. The matter is listed at 9:30 am on 17 February 2005 for the filing of those Short Minutes of Order and any costs argument, should the parties be unable to agree on a costs order.

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