Murphy v Stewart

[2004] NSWSC 569

CITATION:	Murphy v M.F. Stewart - Estate P.E. Stewart [2004] NSWSC 569
HEARING DATE(S):	25 and 28 June, 2004
JUDGMENT DATE:	28 June 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
DECISION:	Summons dismissed with costs.
CATCHWORDS:	FAMILY PROVISION ACT - CONDUCT - DOMESTIC VIOLENCE - Applicant, a former husband of the deceased, subjected her to violent physical and emotional abuse - applicant supported by deceased and made no contribution to deceased's assets. - HELD: Applicant's conduct during and after relationship with deceased did not warrant the making of the application.
LEGISLATION CITED:	Family Provision Act 1982 (NSW) - s.9(1)
CASES CITED:	- Churton v Christian (1988) 13 NSWLR 241 - Fulop, Re (1987) 8 NSWLR 679 - Walker v Walker (unrep.) 17 May 1996 per Young J
PARTIES :	Michael Wayne Murphy - Plaintiff Mary-Ann Farquharson Stewart - Defendant
FILE NUMBER(S):	SC 1317/02
COUNSEL:	J.E. Armfield - Plaintiff L.J. Ellison - Defendant
SOLICITORS:	Ken le Lievre - Plaintiff Gray & Perkins - Defendant

Introduction

1    The Plaintiff, a former husband of Patricia Eileen Stewart (“the Deceased”), seeks an order that provision be made for him out of the Deceased’s estate pursuant to the Family Provision Act 1982 (NSW) (“the Act”). 2 The Deceased was born in 1941. Some time prior to 1959 she married Mr Peter Pearson. In July 1959 a child was born of that marriage, Marc Timms. Mr Timms has made a claim against the Deceased’s estate under the Act but that claim was compromised very shortly before the trial commenced. 3 In about 1966 the Deceased divorced Mr Pearson and married Mr Duncan Stewart. On 26 September 1966 a child was born of that marriage, Mary-Ann Stewart, who is the present Defendant. 4 In May 1986 the Deceased and Mr Stewart separated. At about the same time the Deceased and the Plaintiff began to co-habit in a house at 7 Bennett Street, Newtown, of which the registered proprietor was the Defendant. 5 On 11 February 1987, the Deceased made a will in which she left the whole of her estate to the Defendant. 6 Some time in 1987 the Deceased and Mr Stewart were divorced, and on 2 December 1987 the Deceased and the Plaintiff married. Both parties accept that the marriage had the effect in law of revoking the Deceased’s prior will in favour of the Defendant. 7 In April 1987 a property at 54 Forbes Street, Newtown, was purchased by the Deceased. She and the Plaintiff lived there until about November 1994 when the Plaintiff moved out. They did not co-habit thereafter. 8 On 18 February 1996, the marriage of the Deceased and the Plaintiff was dissolved. No property settlement order was sought by the Plaintiff. 9 In March 1995, the Deceased had commenced co-habitation with Mr James McKenzie. Mr McKenzie has made a claim against the Deceased’s estate under the Act, but that claim was compromised at the commencement of the trial. 10 The Deceased died on 16 December 2000. The Defendant applied for a grant of probate of the Deceased’s will dated 11 February 1987 and probate was granted to her on 23 February 2001. 11 By Summons filed on 12 July 2001 in proceedings 3537 of 2001, Mr Timms sought an order for provision out of the Deceased’s estate. By Summons filed on 14 December 2001 in proceedings 5962 of 2001, Mr McKenzie sought an order for provision out of the estate. By Summons filed on 30 January 2002 in proceedings 1317 of 2002, the present Plaintiff sought an order for provision out of the estate. By Summons filed in the Probate List in proceedings 112553 of 2003, the present Defendant sought orders revoking the grant of probate to her of the Deceased’s will dated 11 February 1987 and the granting to her of letters of administration. By Summons filed on 28 May 2004 in proceedings 3149 of 2004, the present Defendant sought an order for provision out of the estate, as a fall-back position. 12 All matters have been case managed concurrently and all came on for hearing before me on 25 June 2004. As I have noted, a number of the proceedings have been settled. The proceedings instituted by Messrs Timms and McKenzie have been disposed of; the grant of probate to the present Defendant has been revoked and letters of administration have been granted to her; the present Defendant’s application for provision out of the estate has been dismissed by consent because it is accepted that the contest over the estate is now between the Plaintiff, seeking an order under the Act, and the Defendant as next of kin on intestacy. 13 Accordingly, the sole matter in contest before me is the present Plaintiff’s claim under the Act. In those proceedings, Mr Armfield of Counsel appears for the Plaintiff and Mr Ellison of Counsel appears for the Defendant.


The Plaintiff’s early history

14    The Plaintiff was born on 28 June 1941. He was brought up in Melbourne. He left school at the age of sixteen years and for about four or five years thereafter he had numerous junior clerical jobs. 15    At the age of twenty-one he decided that he would become a full-time musician. He obtained occasional jobs in hotels and clubs. 16    In 1974, at the age of thirty-three, the Plaintiff moved to Sydney to seek work. I do not get the impression from the evidence that the work which he obtained was very regular. 17    In 1978, the Plaintiff’s mother died and left him a house in Melbourne, which he rented out. In 1979 the Plaintiff went to New York and he says that he was able to support himself there comfortably. In 1984 he sold the house in Melbourne for about $50,000. That money was apparently spent by the Plaintiff in living expenses. 18    In 1985, the Plaintiff returned to Sydney and worked as a jazz drummer, especially around Kings Cross. He met the Deceased in 1986 and shortly afterwards, in about May of that year, he began to live with her at the house in Bennett Street, Newtown. That house had been bought in the name of the Defendant by her mother and father.


The Plaintiff’s evidence of the marital relationship

19    From the time of their marriage on 2 December 1987, the Plaintiff and the Deceased lived at a house in Forbes Street, Newtown, which the Deceased owned. The Deceased had paid for that house out of her own money. The Defendant also lived there with them until 1992, when she moved out to live nearby. 20    In the first affidavit which he swore in support of his application (25 February 2002) the Plaintiff painted a picture of a warm and loving family relationship between himself, the Deceased and the Defendant. He said: “I have always had what I considered to be a very close and warm relationship with Mary-Ann and at one time I wanted to legally adopt her but that did not eventuate” : para.25. 21    He said:

“26. Following our marriage Pat and I went on a honeymoon to Japan for three weeks. We spent most of the time in Tokyo which was very expensive but Pat insisted on paying for the whole trip and although this upset me and I strongly protested and at least wanted to share the expenses, she absolutely refused.

27. Pat was always a very strong-minded person and I did not like to cross her. She liked to have her own way in most things and I invariably bowed to her wishes. We, in fact, had a very good relationship throughout our marriage and in the time we lived together beforehand.

28. Another of Pat’s qualities was that she was super generous. As well as our honeymoon, we had a number of wonderful trips together. We travelled to Singapore and stayed there; we also went on a separate trip to Hong Kong and, in addition we travelled within Australia. In 1994 we went to and stayed in New York for some time. Always Pat insisted on paying for these trips although, as I say, I was not happy about her doing so.

29. On one occasion that I recall, I really insisted on paying for something and I handed Pat $400.00 in notes which she instantly tore up in front of my eyes. Pat was and remained throughout our relationship a very independent woman.

30. During our time together I really enjoyed “the life of Riley”. Pat loved me to death but I had to play by her rules. I didn’t mind this, as I loved her dearly.”
22    The Plaintiff said that he continued working as a drummer until about mid-1990, when he suddenly developed severe arthritis. He said that thereafter he found it impossible to work. He continued:

“35. For the next four years Pat was absolutely wonderful to me. She was kind and always sympathetic and she encouraged me to keep on working as long as I could. I used to take strong codeine and other pain-killers and as a result I became codeine-dependant. In this period of my life I was at a very low ebb. I saw a number of local doctors but I did not seem to receive much relief from my pain. One of these doctors prescribed a drug called Rhohypnol which just made me feel heavily sedated all the time.

36. Pat took care of everything for me. She paid all the medical, optical and dental bills and took in hand anything that required attention. She made everything as comfortable as possible for me at home and we lived a quiet, private life and on a personal level I lacked for nothing.”
23    Then, according to the Plaintiff’s account in his affidavit, the Deceased’s attitude to him changed for no apparent good reason. In about June 1994, she asked him to move out of their bedroom. The Plaintiff said in cross examination that he was puzzled and surprised by this request and that it came “out of the blue”. He said that, up until that time, his relationship with the Deceased was very good, harmonious, without ill will, rancour, or disagreement of substance, and that it was only after June 1994 that he and the Deceased began to have arguments.


The truth about the relationship

24    As soon emerged in cross examination, this picture of a close, harmonious and loving relationship painted by the Plaintiff was totally false. In truth, there had been a history of violence and drunkenness in the relationship, almost from its commencement when, in September 1986, the Plaintiff, who is tall and solidly built, hit the Deceased in the face during a violent argument. Thereafter, the Plaintiff, on frequent occasions throughout the whole of his relationship with the Deceased, severely beat her, causing her injury, abused her and humiliated her in private and in public and intimidated both her and her daughter, the Defendant, while the Defendant was living with them. 25    The evidence of the Defendant and the Deceased's former husband attest to the physical injuries caused to the Deceased by the beatings given her by the Plaintiff. The evidence of the Defendant and the Deceased's sisters, as well as that of the Deceased's former husband, attests to the Plaintiff's abuse and humiliation of the Deceased in public. I accept that evidence in its entirety. It is corroborated by what is, in effect, a written confession by the Plaintiff himself in a letter which he wrote to the Deceased in about November 1994, when she had finally compelled him to move out of her house. The letter was written in an unsuccessful attempt by the Plaintiff to persuade the Deceased to take him back. 26    The relevant part of that letter reads:
“I’ve been praying to [the Deceased’s parents] to forgive me for:– the constant physical and mental torment I’ve inflicted on you and Mary. For hitting you, for kicking you, for spitting in your gorgeous face, for throwing the ashtray that damaged your leg, for breaking your teeth, for breaking your furniture, for ridiculing you in private and in public, for beating you in private and in public, for cursing you, for frightening you and Mary, for intimidating you and Mary, for being abominably rude to your family and friends, for all my filthy name calling of your family and friends, for my abuse of your love, for my arrogant disdain of your unique intelligence, for mimicking certain aspects of your grammar and speech, for my total disdain of your faithfulness, for taking you and your sweet love for granted, for ignoring you, for freezing you out of my life and for treating you like shit.”
27 When confronted with all of this evidence in cross examination, the Plaintiff was compelled to admit that he had done all the things to the Deceased of which he had accused himself in his written confession. By this admission, he showed that the evidence as to the relationship which he had given in his first affidavit to this Court, and even in the first part of his cross examination, was false and must have been deliberately false. That false evidence was given by the Plaintiff for financial gain out of the Deceased’s estate. 28 I conclude that I cannot accept the Plaintiff's evidence on any matter in dispute unless his evidence is satisfactorily corroborated or is inherently probable. 29 What emerges from the evidence of the relationship between the Plaintiff and the Deceased is that from the beginning the Plaintiff, who had no assets of his own and a very irregular income, made no contribution to the property acquired by the Deceased. He made only intermittent and relatively unsubstantial contributions to their joint daily living expenses until he ceased doing so entirely in about 1990. In effect, the Plaintiff was supported, and supported comfortably, by the Deceased. 30 It is clear that by November 1994 the Deceased could no longer tolerate the Plaintiff's violent and abusive conduct towards her. In effect, she threw him out. However, it is also clear that for some considerable time afterwards he was in the habit of harassing her by continuing to come to her house, banging on the door and shouting abuse at her in public places. 31 The Plaintiff did not attempt to find work after he was ejected by the Defendant. He says he was depressed and his arthritis prevented him from working as a drummer. It is true that he has been on medication for depression and for arthritis since about December 1994. However, he was never hospitalised for depression and his arthritis, apparently, does not prevent him from practising his drumming for up to four hours a day. -I am not satisfied that the Plaintiff has been completely incapable of earning any income from any source since he was ejected by the Plaintiff almost ten years ago. 32 The Plaintiff's eyesight is not good and he requires considerable dental work but, otherwise, he appears to be well nourished, solidly built and generally healthy, although I do note that he now suffers from a heart condition. 33 I accept that the Plaintiff, who is now 63, has little prospects of finding remunerative work in the future. His assets are worth about $20,000. His sole income is a disability pension of $272 per week. He has accumulated debts of some $16,000. His living expenses are about $250 a week and he will have continuing medical expenses. He has cataracts in both eyes and surgery is required to remove those cataracts. That surgery will cost about $3,300. A dental reconstruction, which is required, would cost about $40,000. 34 Mr Ellison concedes that the Plaintiff, as a former husband of the Deceased, is an “eligible person”, as defined in the Act. Mr Ellison does not dispute that the circumstances of the Plaintiff are such that, but for the question of his conduct towards the Deceased, consideration would have to be given to some provision for him out of the Deceased's estate. 35 However, Mr Ellison says that having regard to the conduct of the Plaintiff towards the Deceased, both during and after their marriage, the Court should determine that the Plaintiff's application is not warranted, so that the application should be dismissed in accordance with s.9(1) of the Act. 36 Mr Armfield says that the conduct of the Plaintiff towards the Deceased is but one of the circumstances which the Court takes into account in deciding whether the application is warranted. Mr Armfield points to the following factors. 37 First, the Plaintiff was undeniably married to the Deceased and they co-habited for a little more than eight years. Second, the Plaintiff contributed to household expenses although, as I have said, I find that the amounts were irregular and unsubstantial and ceased from about 1990. Third, the Deceased cared for the Plaintiff when he developed arthritis and, by her conduct, recognised that she had an obligation to him. 38 Fourth, the Plaintiff did not seek a property settlement on his divorce, although I should point out here that the evidence is that the Deceased gave the Plaintiff a sum of money after they separated in order to stop his further demands. The amount is disputed. The Plaintiff says it was $1,000; the Defendant says it was between $10,000 and $15,000. I am not able to accept the Plaintiff's evidence with any degree of satisfaction, but I am not able to find that the money was as much as $10,000 to $15,000. 39 Fifth, the Plaintiff has no secure accommodation and, having regard to his age and physical disabilities, he will continue to remain dependant on his pension. His financial position, in itself, says Mr Armfield, can amount to a factor warranting the making of an application for the purposes of s.9(1) of the Act. 40 Sixth, the violence exercised by the Plaintiff towards the Deceased must be understood in the light of what was a violent marital relationship. Mr Armfield says that there is evidence suggesting that the Deceased herself was given to violent behaviour, such as shouting, spitting and scratching, and that she was also given to drug and alcohol abuse. As to this last submission, I am not satisfied that the Defendant was regularly abusing drugs throughout the marital relationship, although I find that she was sometimes drunk and abusive. Whether this conduct was a response to the Plaintiff's behaviour or, as the Plaintiff suggests, provoked the Plaintiff’s behaviour, is impossible for me to find on the evidence. 41 Nevertheless, the important consideration is that, however difficult or offensive the Deceased's behaviour might have been at times, there could have been no possible justification for the Plaintiff to respond with violent physical abuse. Domestic violence is not a response that our society condones in any circumstances and it must be quite clear that this Court cannot condone it either. 42 I accept that the overall consideration in applications under the Act is whether, in all the circumstances of the case, the applicant has demonstrated that he or she is a person who would generally be regarded as a natural object of testamentary recognition by the Deceased: see Re Fulop (1987) 8 NSWLR 679; Churton v Christian (1988) 13 NSWLR 241, at 252. I accept also that in determining that question the Court pays regard to what it conceives to be current attitudes and expectations in the community: see Walker v Walker (unrep.) 17 May 1996 per Young J. 43 In the present case, I take into account the following considerations. Throughout the whole of their cohabitation, the Plaintiff was violently abusive of the Deceased, physically and emotionally. The Plaintiff deliberately lied to the Court about the quality of the marital relationship. After cohabitation ceased, the Plaintiff harassed the Deceased and abused her in public. The Plaintiff made no contribution at all to the assets of the Deceased and very little contribution to their daily living expenses during cohabitation. I am not satisfied that the Plaintiff's present lack of assets and means generally is the result of inability to work in the ten years since cohabitation ceased, rather than the result of a disinclination to work. 44 In these circumstances, I am of the view that the Plaintiff's conduct during and after the relationship with the Deceased would generally be regarded, according to current attitudes and expectations in the community, as disqualifying him as a natural object of testamentary recognition by the Deceased. Accordingly, in my opinion, there are no factors which warrant the making of this application for provision out of the Deceased's estate. In accordance with s.9(1) of the Act, therefore, I cannot proceed further to determine the application and it must be dismissed. 45 There was an issue raised during the proceedings as to whether a unit owned in the name of the Defendant in King Street, Newtown was, or was not, part of the estate of the Deceased, in that it was said by the Plaintiff that the unit was held by the Defendant on trust for the Deceased. Because of my conclusion that this application must be dismissed, I do not need to determine that question. 46 In any event, as I think both Mr Armfield and Mr Ellison recognised, the determination of that question would not have mattered very much in quantifying what, if any, provision should have been made out of the Deceased's estate for the Plaintiff, if he had been entitled to any. 47 If the unit was held by the Defendant on trust for the Deceased, so that it formed part of her estate, nevertheless, the Plaintiff did not seek a legacy in excess of $130,000, which is less than the present cash surplus of $148,000 presently left in the estate. That would have left the unit to have been disposed of out of the estate to the Defendant in any event. 48 The result, therefore, is that the Plaintiff's Summons is dismissed. 49 The Plaintiff will pay the Defendant's costs of the Summons. 50 Exhibits may be returned.

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Last Modified: 07/02/2004