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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Murphy v Stewart

Details

AGLC: Murphy v Stewart [2004] NSWSC 569
Case: [2004] NSWSC 569
Decision Date: 28 June 2004

CaseChat Overview and Summary

In the matter of Murphy v Stewart, the applicant, the former husband of the deceased, sought an order under the Family Provision Act for a share of the deceased's estate. The respondent, the deceased's daughter, opposed the application on the grounds that the applicant had subjected the deceased to violent physical and emotional abuse during their marriage and had made no contribution to the deceased's assets. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the applicant's conduct during and after the relationship with the deceased warranted the making of an application under the Family Provision Act. The court was required to consider the applicant's conduct in the context of the relevant statutory provisions and whether it was appropriate to make an order in favour of the applicant. The court also had to consider whether the applicant had made any contribution to the deceased's assets.

The court found that the applicant had subjected the deceased to violent physical and emotional abuse during their marriage, which amounted to conduct of such a nature that it was just and equitable to disregard the applicant's financial contributions to the deceased's assets. The court also found that the applicant had made no contribution to the deceased's assets and had not provided any evidence to suggest that he had made any contribution to the deceased's welfare during the relationship. The court concluded that the applicant's conduct during and after the relationship with the deceased did not warrant the making of the application. The court dismissed the application and made no order in favour of the applicant.

Orders