Nelligan v Crouch

[2007] NSWSC 840

CITATION:	Nelligan v Crouch [2007] NSWSC 840
HEARING DATE(S):	31 July 2007
JUDGMENT DATE :	31 July 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
EX TEMPORE JUDGMENT DATE:	31 July 2007
DECISION:	Paragraph 69
CATCHWORDS:	Family Provision. Claim by same sex partner. De facto relationship had terminated by date of death but plaintiff entitled as she had been part of household and dependent upon the deceased. Legacy provided for plaintiff.
PARTIES:	Marlene Francis Nelligan v Beryl Julie Crouch (Estate of late June Maud Ford)
FILE NUMBER(S):	SC 3143 of 2006
COUNSEL:	Mr RD Wilson for plaintiff Mr GA Rich for defendant
SOLICITORS:	Eddelbuttel Law for plaintiff Merrick Spicer & Associates for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 31 JULY 2007

3143/06 - MARLENE FRANCIS NELLIGAN v ESTATE OF THE LATE JUNE MAUD FORD & ANOR

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late June Maud Ford, who died on 15 October 2005 aged 73 years. The plaintiff claims to be a de-facto partner of the deceased at the date of her death.

The will of the Deceased

2 The deceased made a will on 25 July 2002. The deceased appears to have used a home-drawn form and in that she appointed her sister, Beryl Judy Crouch, the defendant, as executrix. She gave a bequest to Beryl Judy Crouch of $7,500 and gave the residue of her estate to the Royal Flying Doctor Service of Australia. Unfortunately Beryl Crouch has witnessed the will and, accordingly, the gift to her would be void and the whole estate would pass to the Royal Flying Doctor Service.

Assets in the Estate

3 At the date of death the deceased had her property on the North Coast. That has now been sold and the estate has been got in and reduced to cash. The amount of the estate is $232,422 26. Costs have been incurred in this matter and the defendant's costs to the end of the hearing are estimated at $24,000. Those of the plaintiff are estimated at $39,980 and there is GST on that amount of $3,998.

Family History

4 The deceased was born on 24 July 1932 and the plaintiff was born on 3 November 1938. They first met in April 1975 when they were co-workers working for Telecom in Canberra. In 1975 they had a holiday together in Cairns and in 1978 they had a holiday together in Tasmania. In June of 1978 the plaintiff and the deceased commenced to live together in rented accommodation at 5 McHugh Street, Evatt, where they lived for some four years. In June 1982 the deceased was promoted and she moved to Roseville, the plaintiff still living in the Australian Capital Territory. The evidence shows that on her weekends the plaintiff would travel to visit the deceased in Sydney.

5 It was in 1983 that the deceased and the plaintiff bought land at Stewart’s River for $6,000. They purchased it as tenants in common in equal shares. The evidence is that the plaintiff contributed $4,000 to the purchase and the deceased contributed $2,000. The property was known as ”Gunnadoo”. The following year a deposit was paid on a kit home and both the plaintiff and the deceased each borrowed $15,000 to build the kit home, which cost $34,000.

6 By mid-1984 the home was at lock-up stage and the deceased at that stage took up residence. The plaintiff at this stage was not living there and that occurred in 1985, when she ceased working for Telecom for a while and went back to “Gunnadoo”.

7 In late 1985 the plaintiff actually resigned. In 1992 the plaintiff and the deceased took a two-week holiday to Victoria in their campervan and they went there together. By 1993 they had paid off the kit home loan that they had undertaken.

8 From about 1996 on the deceased's health declined with her having trouble with her lungs and she was from time to time in hospital with collapsed lungs. On 25 November 1997 “Gunnadoo” was sold for $174,897 and the deceased and the plaintiff each received a sum of $87,000 from the sale. Because the purchaser did not want to move in to the property straight away the deceased continued to live there for 12 months and at this time the plaintiff moved to Cowra to look after her mother, who was ill at that stage.

9 In late 1997 the deceased bought a property at 21 Main Street, Ross Glen (known as Kooringal) and rented it out for the first year and she used her part of the sale proceeds for that. For her part the plaintiff, on 9 January 1998, purchased a property at 22 Brisbane Ave Cowra for $69,000 which was close by her elderly, sick mother. In September and October 1999 the plaintiff and the deceased did a campervan trip together on the Great Ocean Road, South Australia. This was for a period of four weeks and on return the deceased had another attack and was in hospital in intensive care at Port Macquarie. The plaintiff stayed on to look after the deceased and the mother. She continued in a difficult condition into the next year.

10 As I have mentioned, the deceased made her last will on 25 July 2002. It appears that there were discussions between the deceased and the plaintiff over the period prior to the deceased's death. The plaintiff had come back to visit the deceased for some periods of five weeks in April and May of that year. It appears that there was a decision for the plaintiff to come back and live at Kooringal. There was correspondence between the parties in which it is plain, in October 2005, that the deceased was looking forward to the plaintiff returning to her house.

11 The deceased died on 15 October 2005. This was some five days before, according to the plaintiff in her evidence, she had planned to return to live with the deceased.

12 The summons was filed on 7 June 2006 within time and probate was granted on 21 August 2006 to the defendant.

Eligibility

13 The plaintiff bases her claim on three separate bases. The first was that she claimed to be the de facto partner of the deceased at the date of death; alternatively, that she was in a close personal relationship with the deceased at the date of the deceased's death and, thirdly, that she was an eligible person under sub-para (b) as she was part of the deceased's household and, in part, dependent upon the deceased.

14 Under the amendments introduced by the Property (Relationships) Legislation Amendment Act, which took effect on 28 June 1999, there was an extension of the Act which applied to proceedings that commenced after that date. The amended Family Provision Act incorporates the definition of domestic relationship in the Property (Relationships) Act 1984. That Act applies to domestic relationships which are defined in s 5 as follows:

“5. Domestic relationships

(1) For the purposes of this Act, a domestic relationship is:

(a) a de facto relationship, or

(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(2) For the purposes of subsection (1)(b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(a) for a fee or reward, or

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

(3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following:

(a) a child born as a result of sexual relations between the parties,

(b) a child adopted by both parties,

(c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman:

(i) of whom the man is the father, or

(ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father, except where such a presumption is rebutted,

(d) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998)

(4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”

15 It can be seen from the terms of s 5(1) that a domestic relationship can be either a de facto relationship or a close personal relationship.

16 The definition of de facto relationship itself appears in s 4 and is in the following terms:

“4. De facto relationships

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.

(3) No finding in respect of any of the matters mentioned in subsection (2)(a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”

17 This definition apart from the provisions of sub-clause (1) merely reflects the existing state of the law as it had been developed under the De Facto Relationships Act 1984 and the Family Provision Act 1982 (see Light v Anderson (1992) DFC 95120 applying Simonis v Perpetual Trustee Co Ltd (1990) 231 NSWLR 677.

18 Apart from the exclusionary matters in s 5(2) there is no definition of “close personal relationship”. Little help is obtained from the reading speeches as to the meaning of “close personal relationship”. It is apparent from the terms of the separate definition of de facto relationship that a close personal relationship does not necessarily involve the concept of living together as a couple. Instead s 5(1) refers to persons “who are living together, one or each of whom provides the other with domestic support and personal care”. It is notable that both domestic support and personal care must be provided. One of them alone would not be sufficient. The “close personal relationship” has to be between two adult persons who are “living together”. Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a “de facto relationship” concepts relating to a “couple” are not relevant. Instead the definition calls for two different links. The first is that the parties are “living together”. The second is that “one or each of whom provides the other with domestic support and personal care”.

19 So far as the first requirement is concerned since one is not concerned with concepts applicable to couples the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow’s home would qualify. It may not be necessary for there to be a sharing of food or eating arrangements together.

20 The second requirement is cumulative. There must be both domestic support and personal care. It is the provision of “personal care” which provides the clue to the meaning of the composite expression “domestic support and personal care”. Some of the primary meanings of “personal” include:

(a) Of or pertaining to concerning of affecting the individual person or self; individual, private; one’s own.
(b) Of or pertaining to one’s person body or figure; bodily.”

21 Accordingly, personal care connotes care taken in connection with such matters. It could be provided by:

(a) the person concerned.
(b) an employed valet or lady in waiting.
(c) a mother for her sick child or
(d) a daughter for her elderly incapacitated mother.

22 The legislation in terms excludes the first two but would include the last two examples.

23 The first question, of course, is whether they were living in a de facto relationship. Although the relationship was over a period of some thirty years it is plain that they only were living together in two separate periods. The first was between 1978 and 1982 when they shared rented accommodation in Canberra. The second was from 1986 until 1997 when they lived in the property they had jointly purchased. It is also apparent that after 1997 that the relationship continued, as witnessed by the trip in 1999 and the other visits between them.

24 So far as the nature and extent of the common residence is concerned, this is apparent from my earlier comments. There is no evidence there was a sexual relationship between them. The financial dependence or interdependence is not fully covered in the evidence, although there is evidence that the plaintiff contributed to their joint endeavours, purchases of caravans and matters of that nature. So far as the ownership and use and acquisition of property, there was, of course, the important purchase of the house which they owned for some eleven years together and their obvious commitment to their creation of a home on that property. It is plain from the photographs of it that the parties regarded it as their home. They improved it and made it appear to be a place in which obviously they both enjoyed living.

25 So far as mutual commitment to a shared life, the evidence does not elaborate that at any great length, although, plainly, there is some evidence of the attachment between them and this is evident in correspondence that was sent by the deceased to the plaintiff in the later years of her life. They did, of course, have no children and there is no evidence about the performance of household duties.

26 Although this aspect seems to have been overlooked, it is plain that the parties, and particularly the plaintiff, did a lot of work about the house and that is the sort of work which was done for the benefit of the two of them because, after all, it was only the two of them living there in the property.

27 On the question of reputation and public aspects of the relationship there is virtually no evidence other than evidence given by one friend who knew them and had met the two of them socially. The two of them used to have a market at some stage and used to do that together, although because of her health the deceased was not able to contribute a great deal to that endeavour.

28 Although some of the elements are not there one, does not have any suggestion that either of these parties had other relationships in the periods that they lived together. There is no suggestion of other partners and plainly they did live together in the house which they purchased together for that period and on this basis it seems to me that they lived together as a couple and at that stage were in a de facto relationship up until 1997. The question is what happened in 1997.

29 This raises the question of how a relationship of this nature terminates. There have been a number of references in the cases to the problem which started to surface in Australia in cases under the matrimonial legislation which provided for parties living separately and apart as a ground for divorce. An earlier case which is of use on the general principles is Main v Main (1949) 78 CLR 636. At p 642 in the joint decision of the majority the following was said:

“Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by both as temporary.

In deciding whether there was at any specified date an existing matrimonial relationship, it is, I think, right to say that such a relationship does not end so long as both the spouses bona fide recognize it as subsisting, and in particular it does not end by reason of a separation brought about by the pressure of external circumstances such as absence on professional or business pursuits, or in search of health, or, it may be, even of pleasure. Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist. The weight of each of these elements varies with the health, position in life, and all the other circumstances of the parties.”

30 As indicated by the High Court, there are matters of degree of separation, and particularly in accordance with the passages I have indicated, separation by reason of illness or otherwise does not mean that the relationship has ceased.

31 This matter arises in a number of cases under the Property (Relationships) Act and occurs in the context of whether or not there have been several separate periods of relationship. This sometimes is significant because a period of relationship and a separation period might be before the commencement of the Act. The matter was dealt with at an early stage in George v Hibberson (1987) DFC 95-054. That was a decision of Cohen J which went on appeal to the Court of Appeal. At the trial Cohen J had the following to say:

“The use of the words ‘living or having lived together as husband and wife on a bona fide domestic basis’ suggest a degree of permanence which will not cease merely because one party separates for the purpose of going on holidays or going on business. Nor would it cease if, after an argument, one party moved out and stayed elsewhere for a short while or went home to his or her family, if there was an intention to return and if there was a reasonable indication of that intention. See the views of the Law Reform Commission in its report at para 17.18.

It must be a question of fact whether on separation one party intended that there should be an end to the relationship or whether the parties or either of them acted in such a way as would indicate that that intention existed. Once that intention or indication is found to exist then, as occurred in McRae v McRae (1967) 68 SR (NSW) 361, the relationship will only be renewed when the parties actually return and live together. It would not be sufficient merely to form an intention to enter into an agreement to resume life together.”

32 The theme which his Honour there picked up was repeated in the words of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 740 where his Honour said the following:

“It is correct….that the relevant relationship may continue notwithstanding that the parties are apart, for example on holiday…….. There is, of course, more to a relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like to show this. But where one party determines not to ‘lived together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue. The learned judge, correctly, treated the matter as a question of fact”

33 McHugh JA agreed with Mahoney JA. Hope JA said he agreed with McHugh JA so that it would seem that this expression by Mahoney JA is a considered view of the Court of Appeal.

34 Since then the matter has been considered in a number of cases. In particular, Powell JA has dealt with this on a number of occasions. In Lipman v Lipman (1989) 13 Fam LR 1 his Honour had the following to say:

“Although I accept that the concept of ‘a de facto relationship' does not involve the notion that the parties to it must always be together under the same roof, so that such a relationship may continue to subsist notwithstanding the absence of one party from ‘the matrimonial home', and although I do not discount the possibility that ‘a de facto relationship' may properly be regarded as continuing notwithstanding that the parties may have separated only temporarily while they attempted to work through some difficulty which they had encountered in their relationship, I am quite unable to see how such a relationship can be said to continue in a case, such as this, in which the ‘de facto husband' requires the ‘de facto wife’ to leave the 'matrimonial home' and installs another in her place. As Mahoney JA said in Hibberson v George 12 Fam LR at 740; DFC at 75, supra: 'the essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance; holidays and the like show this. But where one party determined not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue. I therefore conclude that, in this case, there were two discrete ' de facto relationships'".

35 In Thomson v Badger (1989) 13 Fam LR 559 Young J had to deal with a case where, as does not infrequently happen, the relationship was one which was interrupted by absences on quite a number of occasions. His Honour referred to the cases to which I have referred and also referred to Re Australian National Railways Commission and Gerlach (1987) DFC 95-048. He used that as a reference to the fact that one must view the circumstances in which the parties ceased to live under the same roof in the context of their total relationship and he posed the question that one must ask in the context of the total relationship as whether there was a mere lovers' quarrel or a termination of the relationship. His Honour looked at the case in hand and described it as one:

“…not being the happiest of relationships but was one which always continued on from where it left off. There was an incident, a separation, then usually a short time later that the parties got together on the same basis again as before. In my view the proper determination of the factual question raised is that there was a de facto relationship which continued…..”

36 The matter has also been again referred to by Powell JA in Theodoropoulos v Theodosiou (1995) 38 NSWLR 424, where he referred, with approval, to the statement of Mahoney JA.

37 Also in Gazzard v Winders (1998) 23 Fam LR 716 he once again quoted with approval the statement by Mahoney JA in Hibberson v George. In that case Beazley JA had the following comments to make about Hibberson v George:

“I would comment in passing only that I do not endorse in any unqualified way the comments of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725. For myself, I do not know that it accords either with reality or a proper construction of the Act to find that an interruption which, in a long relationship, may be no more than a hiccup, would have completely brought the relationship to an end. In any event, I can see no reason why a short interruption of the relationship for six weeks in a period of 14 and a half years should prevent the court from taking into account the circumstance that this was a lengthy relationship of that order. Even if I am wrong, I considered ten and a half years to be a relationship of a lengthy duration."

38 In the light of those matters I think clearly there is a strong weight of authority which supports the view expressed by Mahoney JA in the Court of Appeal in Hibberson v George. Of particular note is his view that:

“…where one party determines not ‘to live together’ with the other and in that sense keeps apart, the relationship ceases, even though it be merely to enable the one party or the other to decide whether it should continue.”

39 The qualification that perhaps emerges from what Young J was referring to in Thomson v Badger is that when one has a situation of frequent interruptions and then a return to the relationship that may, in fact, lead one, on a factual basis, to suggest that perhaps an expressed intention to leave the relationship was not the real intention and was more a pattern of behaviour. That is perhaps what Beazley JA was alluding to in her comments in Gazzard v Winders. But, in any event, she was also there more concerned with the more difficult circumstance as to whether the Court can take into account earlier periods of interruption to a relationship.

40 But what we have here was a termination of the relationship. Plainly it seems that the plaintiff, because she had to look after her mother, herself and also had some responsibility to the deceased, had to consider what to do. She decided that she had to return to Cowra. Although asked by the deceased to be with her in the other property, she decided against it and purchased her own property in Cowra. As she said she could not look after three properties, she was hard pressed looking after her property and her mother's property. So it seems to me that the relationship terminated in 1997.

41 I accept the plaintiff's evidence, particularly bearing in mind the correspondence which passed from the deceased, that there was an intention to return to live with the deceased, but the fact of the matter is that that did not occur before the date of death and, therefore, I am satisfied at the date of death that the plaintiff was not living in a de facto relationship with the deceased.

42 As far as her claim under a close, personal relationship is concerned, that also cannot exist for the same reason. It is necessary that the parties be living together at the date of death and this did not occur.

43 There is also the difficulty that there is no particular evidence of the type of personal care that was required. Although it might have existed in this case, I do not know what it was at the date of death.

44 The next basis for suggesting that she is an eligible person is that the plaintiff claims she is part of the household of the deceased and was at some time partly dependent upon the deceased.

45 It is perfectly plain and, indeed, it is conceded by the defendant in the way the matter was put to me that she was part of the household and that is obvious from the facts in the matter. Of more importance is the question of dependency in this case.

46 In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. His Honour Samuels J at p 490 said the following:

“His Honour concluded that ‘dependent’ meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of s 6(1) of the definition of ‘eligible person’, par (d)(i).
In the present case, however, only financial dependence is relied on and I approach the matter on that basis. ‘Dependent’, in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey L.J. in Lee v Munro (1928)LJKB 49 AT 53; 21 BWCC 401 at 408, that in ‘deciding whether or not thee is dependency the factors to be considered are past events and future probabilities’. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency.”

47 His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could have only received a partial benefit. At p 492 he addressed the argument in these terms:

“Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of ‘needs’ in the Liquor Act 1912 as ‘reasonable demands or expectations’: Toohey v Taylor (1983) 1 NSWLR 743 AT 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976)50 ALJR 454; 8 ALR 455.
It is not to be determined upon theoretical considerations. It is ‘the actual fact of dependence or reliance on the earnings of another for support that is the test’: per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 AT 189. ‘The standard of support is set by the parties themselves’ (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other.”

48 This passage emphasises the factual nature of dependency be it financial or otherwise.

49 In Benny v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of an emotional relationship between them.

50 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the court once again considered the meaning of dependency. At p 346 the court had the following to say:

“I would respectfully disagree with the Master in both respects. The word ‘dependent’ is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities or life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things.

But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language.

This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that ‘dependent’ in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed.

If the correct view were that the context of the statute requires a limitation of the word to ‘financial or material’ matters as McClelland J said in Re Fulop Deceased or to ‘other forms of dependence analogous to but distinct from financial dependence’ as Samuels JA suggested in Ball v Newey (at 491), then surely a mother’s services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them.

To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does.

The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the later years of this period."

51 In McKenzie v Baddeley (NSWSC unreported, 3 December 1991), Meagher J, although in the minority, further discussed dependency and described it as "financial, economic or material dependency, not a mere emotional dependency". Important in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant "more than minimally" or perhaps "significantly".

52 In Williams v Legg (1993)29 NSWLR 687 the Court in considering a case of a young child needing mothering pointed out that the absence of financial dependence is not conclusive.

53 What we have in this case is a situation where in the period that they purchased their house the parties decided to live together and purchased a property. As I have indicated, they purchased the property together and they owned it as tenants in common in equal shares. I have already mentioned both contributing part of the purchase price of the land and the kit home was purchased $36,000. According to the evidence of the plaintiff, June and she borrowed $15,000 each over five years which enabled the property to get up to lock-up stage in 1984. Obviously it was a loan each took out for some five years, presumably secured on the property. By the time they moved into the property it is plain that June was still earning an income. At that stage she was on sick leave. There is no evidence about her income thereafter, apart from some matters that I will refer to, although one might infer from the circumstances of her illness that she may have had an entitlement to a disability pension. However, I will put that aside for the purposes of deciding this matter.

54 Plainly the deceased's health continued to go down during the period when they lived there. It was in 1993 that he parties had paid off each the loan of $15,000. They had from time to time a stall at the Kendall markets and that apparently was for a period of four years prior to 1993. They both contributed to that. June, according to the plaintiff, could make anything and she did on a sewing machine make items which the two of them sold at the markets. The plaintiff would pick up second-hand materials which would be useful for selling at the markets. As I say, they had the stall for four years and, using the words of the plaintiff, this is assisted them to keep their finances healthy. They also not only sold the goods that they made but also apparently sold goods that they grew on the property at the markets. So one has there a situation where the plaintiff was doing some odd job work if she could get it and the two of them using their endeavours to jointly pay off the loans which they had for the house.

55 It seems to me that although there is not a lot of evidence about what the deceased had to contribute she must have had something to contribute. She managed to have savings to contribute to a campervan of which there is evidence. Although it is plain that a large part of some contributions to the property were by the plaintiff, clearly there is sufficient evidence there to show that it was also the deceased who contributed to the property, whether by work or otherwise. Obviously she had some savings and at some stage she was on sick leave and contributed. One has, in effect, a joint decision to purchase the property, go ahead with it, adopt a style whereby they both borrowed funds and set out on this course of owning their property. That is the nature of the matter. They had a vacant block of land and they put a kit home on it and then proceeded to do things around the yard and designed the house to make it their home. So from a factual point of view each was dependent upon the other in this exercise for their mutual benefit. It may be that a large part of the monies were provided by the plaintiff but that does not, I think, detract from the fact that one can form a view that the plaintiff herself was partly dependent upon the deceased, who obviously was the other half owner and who had also borrowed a sum of $15,000 to put in the kit home. There was obviously a liability for the repayments and that is the provision of something which creates a dependency.

56 In my view the plaintiff was partly dependent on the deceased at the time when they had the property together up until it was sold in 1997.

57 However, it is necessary under s 9(1) of the Family Provision Act that the Court should first determine whether there are factors warranting the making of the application. The courts have dealt with this on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms:

"Secondly, the subsection appears to be premised upon a distinction between ‘factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are ‘factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1)(former spouses, and sometime dependent grandchildren all household members) are as such not generally so regarded. This suggests that the ‘factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but ‘refuse to proceed with the determination of the application'".

58 In Churton v Christian (1988) 13 NSWLR 241 the Court approved this statement. Priestley JA at p 252, after setting out and approving the statement, added: --

"To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."

59 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

60 Thereon are a number of things about the relationship which I think demonstrate the factors warranting in the traditional sense, if I could call them that. It was the fact that they lived together for a long time, the fact that the relationship did not cease even though they lived separately and apart after 1997 in the sense that the contact remained and the care and consideration for each other still remained in those years thereafter. There was also the obvious contributions to the property and some later contributions to which I will refer. The extent of the care is not in great detail in the affidavit but one sees, for instance, the plaintiff when the deceased went off for a camping trip by herself and was not well enough and collapsed in Ceduna, South Australia, the deceased was the first one to her side closely followed by the deceased’s mother. So there is this ongoing relationship and I would have thought that the factors warranting are made out in the traditional sense.

61 I will also consider whether she is likely to be successful.

62 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

“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 Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the 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 a 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 we no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors”.

63 I turn to consider the plaintiff’s situation in life. She is single and has no dependants. She owns her own house in Cowra which is apparently worth $220,000 and she has a motor vehicle worth $10,000. The mortgage on the house is $25,024.56. She receives a pension of $530 90 per fortnight and she also gets about $50 per week from her mother.. In actual fact it is difficult to live on the pension. Anyone in Australia who is able to live on the pension has to live quite frugally.

64 I have already talked at length about the relationship with the deceased. It was not one that finished. It was there until the deceased ultimately died. The other thing that needs to be noted in there have been contributions by the plaintiff to the estate of the deceased. In December 2001 the plaintiff inherited $30,954 69 from her father's estate. She says, and there is no reason to disbelieve her, that she gave approximately $22,000 to the deceased to help her with living expenses in the last year of her life. After she had sold the property at Gunnadoo she gave the deceased money to pay for the patio, carport, tanks and the shed at “Kooringal”, that is the deceased’s property. She had the funds and these came from the sale of her share of the property after she purchased Cowra and from $18,000 a super trifecta win at the local club. There are further amounts of $4,000 and $7,500 said to be given by the plaintiff to the deceased and the description of how the money would be taken account out from the bank in thousand dollar lots and kept in a tin to take up to the deceased had a ring of truth about it. In all those amounts approximated $63,500. Although the plaintiff has some $5,000-$6,000 in the bank she has a mortgage and she has nothing else. She does not have any superannuation and she just exists on the old age pension.

65 It is plain that the deceased did have a connection with the Royal Flying Doctor Service. She worked in the stall and at times the proceeds were given to the Royal Flying Doctor Service and there was that connection. Apart from that connection there is no suggestion of other services, for instance, provided by the Royal Flying Doctor Service to her which would lead her to be generous to the society but, no doubt, she thought, as it is, that it was an appropriate body to benefit.

66 It is necessary to see how the plaintiff says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. The matters put forward in this case are, firstly, her need to discharge the mortgage of $25,000 and also to have some fund for the contingencies of life. Although she wishes to sell Cowra and wishes to move to a unit elsewhere, there is no detail of what expenses she would incur, other than she hopes to do it. But even leaving that aside it seems to me that the plaintiff has a need for some fund to enable her to have some additional monies beside her in case anything happens in the future.

67 There are no other competing claims on the bounty of the deceased and in fact the plaintiff had a substantial part to play in the life of the deceased over the last 30 plus years.

68 In the circumstances it seems to me that it is appropriate that she have a legacy of $100,000.

69 The orders that I make are:

1. The plaintiff receive a legacy out of the estate of the deceased in the sum of $100,000;
2. The plaintiff’s costs on the party and party basis and the defendant’s on an indemnity basis be paid or retained out of the estate of the deceased.
3. The exhibits are to be returned.

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