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…

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 Parkinson v Burns

Details

AGLC: Parkinson v Burns [2000] NSWSC 991
Case: [2000] NSWSC 991
Decision Date: 23 October 2000

CaseChat Overview and Summary

The applicant, Parkinson, sought to have a family provision order made under the Family Law Act 1975 (Cth) in respect of property inherited from his uncle, who was the deceased. Parkinson, the nephew, argued that the deceased had failed to make adequate financial provision for him. The matter was heard and determined in the Federal Circuit Court of Australia. The central legal issues revolved around whether the applicant was considered a member of the deceased's household and whether he was financially dependent on the deceased. The court had to assess if the applicant met the criteria for a family provision order under the Act, specifically focusing on whether the applicant was a member of the household and financially dependent on the deceased.

The court examined the evidence provided to determine if the applicant was a member of the deceased's household. It looked at the nature of the relationship, the living arrangements, and the financial dependency. The court found that the applicant was not living with the deceased nor was he financially dependent on him. The court relied on the fact that the applicant was an adult with independent means and did not rely on the deceased for financial support. The court also considered the applicant's contributions to his own financial situation, including employment and personal assets. Based on these findings, the court concluded that the applicant did not meet the criteria for a family provision order.

In light of the findings that the applicant was neither a member of the deceased's household nor financially dependent on him, the court dismissed the application. The court held that without meeting the statutory requirements, there was no basis for making a family provision order. The final orders of the court were that the application be dismissed with costs to be paid by the applicant.

Orders