Parkinson v Burns

[2000] NSWSC 991

CITATION:	Parkinson v Burns [2000] NSWSC 991
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 4260 of 1999
HEARING DATE(S):	23/10/00
JUDGMENT DATE:	23 October 2000
PARTIES :	Neil Parkinson v Joan Burns
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr D. Baron for plaintiff Mr M.S. Willmott for defendant
SOLICITORS:	Remington & Co for plaintiff Yandell Wright Stell for defendant
CATCHWORDS:	Family Provision application by a nephew. Whether plaintiff was part of household and dependent. - Held - plaintiff was not and claim dismissed.
CASES CITED:	Benny v Jones (1991) 23 NSW LR 559 the Court of Appeal; Ball v Newey (1988) 13 NSW LR 1989; Petroholis v Hunter (1991) 25 NSW LR 343 at 346; McKenzie v Baddeley (Court of Appeal, 3 December 1991; Williams v Legge (Court of Appeal 16 March 1993; Kingsland v MacIndoe 1989 VR 273; Markulan v Drew (1993) DFC 95-140; Daldry v Ryman unreported 15 July 1992; Munroe v Lake (unreported 8 February 1991
DECISION:	Para 21

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

MONDAY 23 OCTOBER 2000

NO 4260/99 - NEIL PARKINSON V JOAN BURNS - ESTATE OF DAPHNE MAY TURNER.

JUDGMENT:

1 MASTER: This is an application under the Family Provision Act by the plaintiff out of the estate of the late Daphne May Turner who died 10 July 1999 aged eighty one years. The deceased's only child and her two husbands had predeceased her. The plaintiff was the deceased's nephew. 2 The deceased left a will dated 27 October 1994 under which she appointed the defendant, a close friend of hers for many years as executrix. Apart from a small legacy to Maize Parkinson the estate passed to the defendant. The estate has a present value of $897,617.49. There will be some costs to come out of the estate. The plaintiff claims that he falls within the definition of eligible person under par 6(1)(d) of the Family Provision Act. Thus it is necessary for him to prove:

(a) that he was at any particular time wholly or partly dependent upon the deceased person.

(b) that he was at that particular time or at another time a member of the household of which the deceased person was a member.

3   The concepts of dependency and part of the household have been examined in many cases. I have been assisted by submissions in relation to those matters. 4   In Ball v Newey (1988) 13 NSW LR 1989 the Court of Appeal first considered the question. His Honour Mr Justice Samuels at page 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 dependents analogous to but distinct from financial dependents which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person'.
(d)(i) In the present case, however, only financial dependents is relied on and I approach the matter on that basis. 'Dependent' in the ordinary sense of the word, means the condition of dependent 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 there is dependency the factors to be considered are past events and future probabilities'. While it is true that here we are concerned with financial dependents and not emotional dependents, 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".

5   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 page 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 basis 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 NSW LR 743 at 749. Whether dependency, total or partial, exists is a question of facts: 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 dependents 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 and 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 love they wished to pursue, each was, it is open to find, partially dependent upon the other".

6   This passage emphasises the factual nature of dependency be it financial or otherwise. 7   In Benny v Jones (1991) 23 NSW LR 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 dependents. 8   In Petroholis v Hunter (1991) 25 NSW LR 343 at 346 the court once again considered the meaning of dependency. At page 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 one 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 of 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 order 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 NSW LR 48 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 Fe Fulop deceased or to 'other forms of dependents 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 or 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 of 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 latter years of this period".

9 In McKenzie v Baddeley (Court of Appeal, 3 December 1991), his Honour Mr Justice Meagher, although in the minority, further discussed dependency and described it as "financial economic or material dependency, nor a mere emotional dependency". Importantly 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". 10 In Williams v Legge (Court of Appeal 16 March 1993) the Court in considering a case of a young child needing mothering pointed out that the absence of financial dependent is not conclusive. 11 The more difficult question is whether the plaintiff was part of the household. There was an extensive discussion of the meaning of "household" in Kingsland v MacIndoe 1989 VR 273 and it seems clear that the word in its ordinary sense as set out in the Oxford Dictionary means:

"The holding or maintaining of a house or family; house keeping; domestic economy, the inmates of a house collectively; an organised family, including servants or attendants, dwelling in a house; a domestic establishment".

12   In the present circumstances it seems there is a real question to be determined namely whether the plaintiff was for the relevant time a member of the household. His Honour McClelland J in Munroe v Lake (unreported 8 February 1991) dealt with the situation where a step-daughter and her mother stayed with the deceased each weekend for several years. In that case he held that the plaintiff was not a member of the household as he found that there was no continuity and permanency of mutual living arrangements. In Benny v James, 13 February 1990 Young J thought that visits for some months on two separate occasions did not constitute being part of a household. See also his discussion in Markulan v Drew (1993) DFC 95-140 and my decision in Daldry v Ryman unreported 15 July 1992 where in a somewhat different factual background, weekend visits may have amounted to being a member of a household. 13   It is necessary to deal with some of the family history in order to understand these aspects. The deceased was born in July 1919 and she married her first husband in 1936 and her son Wayne was born in 1937. The plaintiff himself was born sometime in 1939. The deceased came back to Australia after the war and she was not accompanied by her first husband who died some time later. The plaintiff appears to have lived with his parents and also others at 44 Mallett St, Camperdown. He talked in paragraph 6 of his affidavit of having resided there along with others and having shared a room with his uncle Oliver for approximately eighteen years till he left home in 1957. The deceased herself when she came back to Australia lived with her first husband's parents. She continued to do so till her later marriage to her husband Oliver Richard Turner who had shared the plaintiff's room. 14   It appears that the plaintiff first met the deceased when his uncle Oliver Turner brought her home for dinner to meet the family in 1946. In 1959 the defendant, Joan Burns and her husband met the deceased and Oliver Turner when they moved into the area. The plaintiff had children from his marriage, he having moved out from home in 1957 and married, those children having been born in 1962 and 1967. As I have said the marriage between the deceased and Mr Turner was in 1958 and that continued, they then living in 110 Mallett St, Camperdown. Mr Turner died on 8 November 1990. The plaintiff himself retired from work in 1991. The will was made in 1994. The deceased became subject to a number of illnesses and difficulties and by 1997 was being admitted to hospital. In due course a guardianship order was made. The deceased died on the 10th July 1999 and probate was granted and the summons was filed within time. 15   If one turns to this difficult question of household one has to look at the actual evidence. This is all in the plaintiff's principal affidavit apart from some matters which fill out some of the history in the defendant's affidavit. In paragraph 9 he refers to the fact that during the earlier years he lived at 44 Mallett St, Camperdown. His Uncle Oliver regularly took him out swimming and ice skating with his aunt, the deceased. He also says that they took him away for weekends to Mr Wally Goddard's home in Dolan's Bay for up to ten years. He refers in paragraph 10 to these visits being on a regular basis, that they would sleep over on Saturday night and would fish on Sundays. 16   The other area where there is some reference to him being part of the household of which the deceased was part is to be found in paragraph 13 where he refers to the fact that between 1947 and 1960 - and I note that part of that is outside the period - that his parents used to rent a cottage at Hutton's Road at the Entrance North for three weeks. As I read the paragraph it means his parents would stay there for the first two weeks and he would sometimes stay over with his uncle Oliver and the testatrix for the third week. He also refers in paragraph 17 to going on camping holidays with his aunt the deceased, to Narrabeen Lakes and staying in the tent, just the two of them. It is probably also wise in considering this question as to whether he was part of the household to see what evidence there might be on dependency. That appears in a number of places in the affidavit. In paragraph 10 the plaintiff refers to the fact that the deceased looked after him and cooked meals at Dolan's Bay. This was for the weekends away at the house owned by Wally Goddard. On these occasions, over holidays, there is evidence that the deceased cooked meals whilst on holidays, which is what one would expect, given the age of the plaintiff and there is also reference to doing his washing but once again only during the periods that they were away on long holidays or weekends. Apparently the deceased purchased groceries and occasionally would give the plaintiff pocket money on these occasions. 17   In paragraph 19 the plaintiff refers to a period of four weeks working on Saturdays and being paid wages. That would not constitute dependency given the lack of other evidence about his then financial situation. 18   Importantly in paragraph 22 the plaintiff himself confirmed it was his parents who maintained his home. Of course we are only concerned with the occasions when the plaintiff went away either for weekends or on an annual holiday which involved the deceased. There is also reference to the plaintiff cleaning his suits and coats at her employment for free. Although there was some labour involved I would have thought that would be quite minimal. 19   The plaintiff put the case that he was part of what was described in submissions as the extended family which included the deceased for the period up to when he left home in 1957. In particular he points to his close association with his uncle with whom he shared a room all his childhood. However, to regard it in this way is to not give due recognition to what the Statute requires, that is to the expression "member of the household". That has a very particular meaning to which I have referred earlier and I am satisfied that the plaintiff was not a member of that household of which the deceased was a member. 20   Although there was some dependency in an emotional and also a factual sense given the age of the plaintiff, I would not class it as significant nor even more than minimal. It follows that the plaintiff's claim must fail.

21   I dismiss the summons and order the plaintiff to pay the defendant's costs.

oOo

Last Modified: 10/27/2000