Re Meuleman
[2020] VSC 376
•26 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2019 03248
IN THE MATTER of Part IV of the Administration and Probate Act 1958
- and –
IN THE MATTER of the Will and Estate of the late OLIVE MARY MEULEMAN
BETWEEN:
| INISE QUMINAKELO | Plaintiff |
| v | |
| BIBI AMIDZIC (syndic appointed by all residuary beneficiaries of the estate of OLIVE MARY MEULEMAN) | Defendant |
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JUDGE: | Judicial Registrar Englefield |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 March 2020 and further written submissions filed by the defendant on 27 March 2020 and by the plaintiff on 16 April 2020. |
DATE OF JUDGMENT: | 26 June 2020 |
CASE MAY BE CITED AS: | Re Meuleman; Quminakelo v Amidzic |
MEDIUM NEUTRAL CITATION: | [2020] VSC 376 |
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FAMILY PROVISION – Summary judgment - Eligible person - Household - Member of a household – Member of household at time of death – Involuntary separation for health reasons - Dependency under s 91(2)(b), (4)(d) and (5)(b) of the Administration and Probate Act 1958 (Vic) – Guardianship and Administration Act 1986 (Vic) ss 55 and 58B - Civil Procedure Act 2010 (Vic) ss 62, 63 and 64.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Tan | Hegedich & De Crescenzo Lawyers |
| For the Defendant | Mr A J Verspaandonk | Slater & Gordon Lawyers |
JUDICIAL REGISTRAR ENGLEFIELD:
Introduction
This proceeding is a claim for provision under pt IV of the Administration and Probate Act 1958 (Vic) (‘Act’) from the estate of Olive Meuleman, deceased. The defendant issued a summons filed 21 October 2019 seeking summary judgment on the basis that the plaintiff’s claim has no real prospect of success.[1]
[1]Civil Procedure Act 2010 (Vic) s 62.
The plaintiff relies on paragraph (k) of the definition of ‘eligible person’ in s 90 of the Act to make her application for provision from the estate. This reads:
(k)a person who, at the time of the deceased's death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member
The deceased, who died on 11 April 2017, left no provision for the plaintiff in her last will made on 13 March 2008 (‘Will’). Probate of the Will was granted to the defendant on 17 April 2019. The inventory of assets and liabilities filed with the application for probate reveals a net estate of $909,110.04.
The parties filed submissions on eligibility prior to the hearing. At the hearing, I ordered further written submissions on the question of the plaintiff’s dependency on the deceased.
For the reasons that follow, the plaintiff’s claim has no prospects of success and summary judgment will be given to the defendant.
Summary of Relevant Facts
This summary is taken from the plaintiff’s affidavit material filed in the proceeding. For the purposes of the summary judgment application, the defendant concedes that the plaintiff’s evidence should be treated as accepted and taken at its highest.[2]
[2]Defendant’s Outline of Submissions, 5 February 2020, 19 (‘Defendant’s Submissions’); Transcript of Proceedings, (Supreme Court of Victoria, S ECI 2019 03248, Englefield JR, 5 March 2020), 2,23 - 3,2.
For ease of reading and intending no disrespect, I will refer to the plaintiff, Inise Quminakelo, and the deceased, Olive Mary Meuleman, by their first names.
In early 2007, Inise first met Olive, a 83 year old widow with no close family, who lived alone in her home in West Footscray. Inise was then a 42 year old single mother of an eight year old son living in rented accommodation nearby. A friendship developed.
By April 2007, Inise was a daily, caring visitor to Olive’s home, who cooked, shopped and did other personal tasks for Olive.
By October 2008, Inise stayed at Olive’s home with her son four or five nights a week, only returning to her rented accommodation after the evening meal on a couple nights a week for various essential tasks. Olive paid 50% of Inise’s rent and contributed to Inise’s personal expenses such as petrol, utilities, phone, clothes and other necessities. On one occasion, Olive cleared Inise’s credit card debt and on another occasion paid for Inise’s flights to Fiji. Additionally, Olive paid for some of Inise’s son’s school and sports expenses. In 2008, when Inise was treated for cancer, Olive paid the excess on medical bills after the Medicare rebate.
According to Inise’s affidavit the women had become and remained ‘dependent’ on each other for ‘care and comfort’ and Inise was dependent on Olive’s financial support.[3] Whether they were dependents is a legal conclusion and pivotal to the summary judgment application, as discussed later.
[3]Affidavit of Inise Quminakelo sworn 4 July 2019, 17 (‘Inise’s Affidavit’).
On 13 March 2008, Olive made her last will, appointing the partners of a law firm as executors and leaving her estate to five Melbourne charities. Yet Olive made a number of promises to Inise, including in 2008 and 2009 but otherwise at unspecified times, that she would leave her estate to Inise.[4] Olive also expressed gratitude to Inise for her care and company in warm and generous terms.[5]
[4]Ibid 28.
[5]Ibid 28.
A neighbour of more than 50 years, Ron Walsh, gives evidence of Inise’s presence in Olive’s home from 2008, including apparently overnight, and describes Inise’s caring for Olive.[6] Inise’s son, now 21 years old, also confirms his mother’s evidence.[7]
[6]Affidavit of Ron Walsh made 18 August 2019.
[7]Affidavit of Mijieli Koroibete made 17 September 2019.
On 2 June 2013, Olive was admitted into residential aged care after being diagnosed with dementia and ‘deemed incapable of living in her own home’.[8] Inise visited Olive daily ‘without fail’,[9] taking her favourite foods and other gifts, as well as giving direct personal care.
[8]Inise’s Affidavit (n 3) 34.
[9]Ibid 39.
On 22 July 2013, the Victorian Civil and Administrative Tribunal appointed Inise administrator of Olive’s financial affairs under the then Guardianship and Administration Act 1986 (Vic).[10] In this role, Inise undertook the tasks of dealing Olive’s aged care service provider, paying all bills, selling Olive’s home (so to reduce aged care daily fees and improve Olive’s financial position) and generally managing her money.
[10]Ibid 35.
The continuing attentive and supportive nature of Inise’s relationship with Olive is confirmed by the chaplain of Olive’s nursing home, Dr Louise Gray, from 2015 (when the chaplain was appointed) to Olive’s death in April 2017.[11]
[11]Affidavit of Dr Louise Gray made 26 August 2019.
Even in the nursing home, suffering dementia, at times Olive held Inise’s hand and reassured Inise that when she passed away Inise would be ‘a very lucky girl.’[12] Inise, now aged 55, is living in rental accommodation, which is described by her counsel in submissions as ‘destitute’.[13]
[12]Inise’s Affidavit (n 3) 37.
[13]Plaintiff’s Submissions in Reply, 21 February 2020, 37 (‘Plaintiff’s Reply Submissions’).
The tenor of the evidence is that a strong, mutual regard existed between Inise and Olive. The independent witnesses, in this regard are persuasive. The relationship appears to have been warmly affectionate and genuinely caring on Inise’s part.
Overview of the Defendant’s submissions
The defendant submits that Inise’s application for family provision was ‘doomed to fail’ as Inise was not an eligible person within the definition of member of the household in the Act. The defendant referred to the New South Wales equivalent family provision legislation[14] which has a similar, but not identical, category of eligibility[15] being a person who was, at any particular time, wholly or partly dependant on the deceased and was, at that particular time or at any other time, a member of the household of which the deceased was a member. The defendant submitted that in New South Wales it is well established that being a member of a household with another person requires a degree of ‘continuity and permanency of mutual living arrangements.’[16] Further, that living under ‘one roof’, while not sufficient by itself, was necessary.[17] The defendant does not concede the women were ever members of the same household but relies particularly on Olive’s residence in a nursing home for nearly four years by the time of her death as placing ‘beyond argument’ that Inise was not a member of Olive’s household at the date of Olive’s death as the two women were not living in the same place.[18]
[14]Succession Act 2006 (NSW) ch 3 (‘NSW Act’).
[15]Ibid s 57(1)(e).
[16]Amprimo v Wynn [2015] NSWCA 286 (‘Amprimo’).
[17]Defendant’s Submissions (n 2), 16.
[18]Ibid 20.
The defendant also submits that the alternative formulation, that Inise and Olive had been members of the same household in the past and were likely to resume, was effectively contradicted by the evidence.[19]
[19]Ibid 26-30.
Overview of the Plaintiff’s Submissions
Inise submits that it is possible to have one household across two properties and the relationship of members of the household continued between Inise and Olive despite their separation.[20] Inise argued that the key factor was the ‘tie’ of the relationship which continued to hold them together as members of a single household over two locations. Further, Inise submitted that it was not impossible that Olive might have ‘recovered’ sufficient to resume cohabitation with Inise. Unfortunately, much of Inise’s initial submissions addressed questions of public policy rather than statutory interpretation.
[20]Plaintiff’s Reply Submissions (n 13) 9-12.
Summary Judgment Principles
Summary judgment is available under s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’) where a claim has no real prospect of success. A ‘real prospect’ is more than a ‘fanciful chance’.[21] Power to summarily dismiss should be exercised with caution[22] but consistently with the Court’s own obligations to give effect to the over-arching purposes of the CPA.[23]
[21]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 (‘Lysaght’).
[22]Ibid [35], (Warren CJ and Nettle JA).
[23]Ibid [41], (Neave JA).
Section 64 of the CPA permits cases without real prospects of success to continue where it is in the interest of justice or the dispute is of such a nature that a full hearing on the merits is appropriate.
There are a number of cases that refer to the nature of a family provision claim and the need for particular caution in summarily dismissing such claims.[24] Family provisions cases can involve significant degree of discretion which generally weighs against summary judgment. That is not to say that summary judgment is never appropriate in family provision claims, where a claim has no real prospect of a favourable exercise of discretion, or is ‘bound to fail’.[25]
[24]Warren v McKnight (1996) 40 NSWLR 390, 396; El-Zaouk v Draybi [2010] NSWSC 1001, [16-25], [28], [32]; Wolff v Deavin [2012] NSWSC 1315, [35-8] (‘Wolff’); Jackson v Newns[2011] VSC 32, [11]; IMO the Will and Estate of William James Milburn [2014] VSC 229, [34].
[25]Re Rattle; O’Neil; v Equity Trustees Ltd [2019] VSC 565, [58].
The defendant submits no additional caution is required in this case as the issue of eligibility involves no discretionary or evaluative factors. I accept this submission where eligibility based on a well-established legal concept is in dispute, for example, a domestic partnership or paternity dispute. These are factual determinations. However, the actual definition of “member of the household” has not been judicially considered in Victoria. Further, the issue of dependency and impact of the deceased’s loss of capacity before the end of her life needs to be considered. The issues arising here may be described as a novel and are connected to recent legislative change. Some additional caution may be warranted. By analogy HCF v Hunt:[26]
A court at first instance should be particularly astute not to risk stifling the development of the law by summarily throwing out of court actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie… one cannot predict, with firm assurance, what the future holds as the final formulation of the new development.
[26]Hospital Contribution Fund of Australia v Hunt (1983) 44 ALR 365, 373.
In combination, all these factors give rise to an additional caution. However, I also have at front of mind the admonition not to let a futile claim run on where it will only needlessly reduce the estate, delay the distribution to the beneficiaries and increase the work of the Court.
Eligibility as a Member of the Household
In Victoria, for family provision applications where the deceased died on or after 1 January 2015, eligibility is restricted to certain categories of persons now defined in s 90 of the Act. This is a major shift from the previous scheme, where any person was eligible to apply, if they could establish that the deceased had a responsibility to provide for them from the estate.[27] One such new eligibility category is ‘member of the household.’ The Second Reading Speech for the amending Bill makes clear that it ‘amends the current family provision scheme to limit who can make a claim on a deceased estate and the grounds on which a claim can be made.’[28]
[27]A history of family provision legislation in Victoria is set out in Bail v Scott-Mackenzie [2016] VSC 563, [56–82] (‘Bail’).
[28]Victoria, Parliamentary Debates, Legislative Assembly, 18 September 2014, 3443 (Robert Clark, Attorney General).
The term ‘member of the household’ is not defined in the Act or discussed in the explanatory memorandum that accompanying the introduction of the amending legislation in 2014.[29] These amendments were introduced after the report of the Victorian Law Reform Commission (‘VLRC’) into Succession Laws.[30] The VLRC recommended adoption of a family provision eligibility test in Victoria ‘based on’ the New South Wales eligibility test, but extended to include step children.[31] The VLRC recommendation set out the New South Wales eligibility categories, including the ‘member of the household’ category in the exact form as it appears in s 57(1) of the Succession Act2006 (NSW) (‘NSW Act’) as follows:
(e) a person:
(i)who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii)who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, …
[29]Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic).
[30]Victorian Law Reform Commission, Succession Laws: final report (Final Report, August 2013).
[31]Ibid 114 [Recommendation 38].
The 2014 amendments, as passed, included in substance the New South Wales eligibility categories, but not identically. In addition, the 2014 amendments added a number of novel eligibility categories that do not appear in the NSW Act.
There are four significant differences between the Victorian and New South Wales versions of ‘member of the household.’ First, the member of the household definition in Victoria requires the membership of the household be current at the time of death or likely to resume in the near future but for the death. Second, in Victoria the requirement to establish dependency is split away from eligibility in the Act. Third, a New South Wales member of the household must show ‘factors that warrant the making of the application’[32] (unlike persons claiming as spouses or children of the deceased in that State). Finally, in Victoria, any provision ordered for a person eligible as a member of a household must take into account and be proportionate to ‘the degree’ to which the eligible person was wholly or partly dependent on the deceased for their proper maintenance and support at the time of the deceased’s death.[33]
[32]NSW Act (n 14) s 59(1)(b).
[33]Administration and Probate Act 1958 (Vic) ss 91(4)(b), (5)(b) (‘Act’).
In New South Wales, ‘member of a household’ is a more flexible concept, as dependency and membership of the household do not need to coincide or be on-going at the date of death and provision is not linked to the ‘degree’ of dependency. The NSW Act, and its predecessor, the Family Provision Act1982 (NSW) (‘NSW 1982 Act’), contain no statutory definition of ‘member of the household’.
Despite these differences, the use of the concept of ‘member of the household’ to establish eligibility to apply for family provision in equivalent New South Wales legislation for almost 40 years, makes that State’s case law a helpful guide in interpreting this identical expression here. I may not be bound by New South Wales appeal decisions, as the NSW Act and the Act are not ‘uniform law.’[34] However, consistency with the definition of ‘member of the household’ with the NSW Act is clearly required, as Dixon CJ remarked in Coates v National Trustees Executors and Agency Company Limited and Anor[35] ‘the legislation of the various states is all grounded on the same policy and found its source in New Zealand. Refined distinctions between the Acts are to be avoided.’
[34]Farah Constructionsv Say-Dee Pty Ltd [2007] HCA 22, [135].
[35]Coates v National Trustees Executors and Agency Company Limited and Anor (1956) 95 CLR 494, 507.
The defendant referred to a number of English decisions. These cases may be less helpful, as the definition of ‘household’, as it appears in the equivalent family provision legislation may be considered a domestic or de facto relationship in Australia, is in the following terms:
… during the whole of the period of two years ending immediately before the date when the deceased died, the person was living—
(a)in the same household as the deceased, and
(b)as if that person and the deceased were a married couple or civil partners.[36]
[36]Inheritance (Provision for Family and Dependants) Act 1975 (UK) s 1(1A).
Equally, other older cases involving, for example, the meaning of ‘household’ in English housing legislation of the 1960s, may as likely lead us astray as guide us home. However, many older cases from England, and even Canada, have been cited in New South Wales decisions and formed part of the underlying fabric of the concept as it is understood and applied in that State’s family provision legislation.
Finally, as required by the Interpretation of Legislation Act 1984 (Vic), in interpreting the Act, a construction that promotes its purpose or underlying object must be preferred.[37] Family provision legislation is remedial in character.[38] Its ‘evident purpose’ is to place the assets of the deceased at the ‘disposal of the court’ to provide for ‘the nominated dependants of the deceased’.[39] In Worladge and Anor v Doddridge and Ors, Williams and Fullager JJ said:[40]
The jurisdiction is conferred in very wide terms and no court or judge would be justified in attempting to define it otherwise than in accordance with the ordinary natural meaning of the words in the section.
[37]Interpretation of Legislation Act 1984 (Vic) s 35(a).
[38]Holmes v Permanent Trustee Co of New South Wales (1932) 47 CLR 113, 119 (per Rich J, Evatt and McTiernan JJ agreeing).
[39]Easterbrook v Young (1977) 136 CLR 308, 315; Barns v Barns [2003] HCA 9, [42-4] (per Gummow and Hayne JJ).
[40]Worladge and Anor v Doddridge and Ors (1957) 97 CLR 1, 9.
However, while the overall purpose of the Act may be remedial, the particular purpose of each provision must be identified.[41] Eligibility under the Act is a question of fact and is not part of the discretionary exercise of jurisdiction under the Act to make provision. As noted by Derham AsJ in Bail,[42] the purpose of the legislative requirement for eligibility as a prerequisite to seek an order for provision is limiting.[43] The categories of eligible person set out in the Act restricts the persons who have the right to access the remedy created in the Act. Therefore, the requirement to give a purposive interpretation to family provision legislation generally, is qualified when dealing with eligibility specifically.[44] In Bail, Derham AsJ cited with approval the following passage from Re Burt:[45]
The answer is to be found as a matter of construction. The fact that the legislation is remedial in character and therefore to be construed beneficially does not call for artificial extensions of the category of persons who are prescribed as eligible for the benefit. The task is to ascertain who has been given the right to apply.
[41]ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1.
[42]Bail (n 27).
[43]Ibid [79].
[44]Ibid [74] citing Popple v Rowe and Ors [1998] 1 VR 651.
[45]Re Burt [1988] 1 Qd R 23, 32.
With these general principles in mind, I turn to the construction of the phrase ‘member of the household’ by looking chiefly to New South Wales.
Membership of the Household: Cohabitation
In New South Wales, membership of a household requires cohabitation. Regular visiting without staying overnight is insufficient.[46] However, sharing a rented house or boarding arrangements, while involving cohabitation, are not considered sufficient to create the relationship of ‘member of the household’ between the cohabitants.[47] Therefore, it may be said that the type of cohabitation required to form a ‘household’ for family provision eligibility in New South Wales needs the underpinning of a relationship and cannot come about merely from expedience. The parties need to share not only a residence, but their lives. It is a combination of physical location and emotional attachment or unity. It is a question of fact and degree.[48]
[46]Wagstaff v Wagstaff [1991] Supreme Court of New South Wales, Winderyer M, 6 Nov 1991) (‘Wagstaff’).
[47]Kingsland v McIndoe [1989] VR 273.
[48]Doshen v Pedisich [2013] NSWSC 1507.
Multiple or split households are permissible. One person may be the member of more than one household simultaneously.[49] For example, a child in a shared custody arrangement or a person with multiple spousal relationships. On the other hand, one household may inhabit two properties.[50]
[49]Wagstaff (n 46); Wolff (n 24); Markulin v Drew (Supreme Court of New South Wales, Young J, 12 August 1993);) (‘Markulin’); Green v Green(1989) 17 NSWLR 343.
[50]Churchill v Roach [2002] EWHC 3230 (Ch) (‘Churchill’).
Although no minimum time is prescribed in either the Victorian Act or the NSW Act, the cohabitation must have sufficient duration, as well as sufficient quality of relationship, to satisfy ‘continuity and permanency’.
Membership of the Household: Relationship Factors
The concept of a ‘household’ is an abstract concept.[51] Further, no single ‘relationship factor’ is definitive.[52] Nonetheless, some key features of a relationship that transform people residing together into a ‘household’ for family provision purposes include:
[51]Russell v NSW Trustee and Guardian [2013] NSWSC 370, [38] (‘Russell’).
[52]Churchill (n 50).
(a) a bond and unity; a concern with and interest in the lives of each other;[53]
[53]Benney v Jones (Supreme Court of New South Wales, Young J, 13 February 1990) (NSWSC 13 Feb 1990) 22.
(b) a degree of continuity and permanency of mutual living arrangements; [54]
[54]Amprimo (n 16) per Meagher [90] and [97] (McColl and Gleeson JJA agreed).
(c) intimate connection with another member of the household;[55]
[55]Markulin (n 49) 46.
(d) willingness to permit return, or to return, when faced with vicissitudes, turbulence or failed attempts at living independently;[56]
(e) mutual support, community of resources, voluntary restraint on personal freedom for the sake of the other;[57] and
(f) a bond between them that must be quasi familial or that of friendship rather than that of landlord and boarder or master and servant.[58]
[56]Porthouse v Bridge [2007] NSWSC 686.
[57]Churhill (n 50).
[58]Markulin (n 49) 46.
Were the Plaintiff and the Deceased members of the same household?
Inise and Olive lived together from October 2008, and although Inise retained her rental accommodation, the majority of Inise’s nights were spent in Olive’s home as her home base. As noted previously, the women demonstrated a commitment to each other by their loving support of each other and by their continuing choice to share their lives.
From sometime after October 2008 until 2 June 2013, when Olive left her home, the necessary degree of continuity, permanency and personal relationship existed and a well-bonded ‘household’ had been formed with both women as members. I find that the women were members of the same household within the meaning of the definition in s 91 of the Act in this period.
Once Olive was admitted to care, the question arises was did their membership of a ‘household’ ceased? The defendant does not concede that the women were ever members of the same household, but submits it was impossible for them to be members of the same household after Olive went into a nursing home, unless Inise was also admitted to the same facility, as they lived in separate locations. This focus on location misses the broader relationship context of a household. For example, is a child at boarding school still a member of the parents’ household?
Marital relationships may continue during separations caused by external circumstances, like military service, imprisonment, temporary hospitalisation or admission to residential aged care.[59] So too, domestic partners may be involuntarily separated, but the relationship continues, despite the lack of cohabitation, so long as the parties intend it to continue.[60] The existence of a de facto relationship is a question of fact, requiring proof of ‘living together’ (although not necessarily full time or in one location) and proof of the nature and extent of the relationship between the parties. Domestic partners separated by one of the partners being admitted to residential aged care remain in a relationship, albeit in a new phase, if the couples’ mutual commitment to each other continues. [61]
[59]Santos v Santos [2004] NSWSC 679.
[60]Piras v Egan [2008] NSWCA 59.
[61]Dakin v Floyd [2019] NSWSC 1220, [144-5].
Can Olive and Inise remain ‘members of the same household’ after Olive was placed in residential care, in the same way that domestic partners can continue to ‘living together’ in the same circumstances?
The defendant submits that the cases where spousal relationships continue despite physical separation as a result of external factors are not relevant as spousal relationships are ‘special’. I accept that a surviving spouse may be said in certain circumstances to a ‘paramount’ claim but that is said in relation to competing claims and moral duty, not eligibility. There are no cases on this point from New South Wales as this issue does not arise there. In New South Wales, the membership of the same household does not need to be on foot at the time of death.
I am unable to locate any decisions on whether or not an involuntary loss of co-residence, where the deceased lacks capacity to make a conscious decision to sever the relationship and where the underlying bonded relationship continued, severs a ‘household’. However, an argument that a marriage remained ‘intact’ was run in the High Court in Stanford v Stanford[62], where the wife had been admitted to residential aged care after suffering a stroke and then dementia. In that case, the wife’s adult child of an earlier marriage applied for a property settlement for the wife under the Family Law Act 1975 (Cth) (‘FLA’), which if granted would have necessitated the sale of the husband’s home. The wife died after a 42.5% property settlement had been ordered in her favour at first instance. [63] The husband argued a property settlement was not available where a marriage was ‘intact’ and that the couple’s separation was ‘forced’ or ‘involuntary’. The High Court[64] determined that a property settlement may be ordered in an ‘intact’ marriage, so did not deal with the issue of the wife’s lack of capacity to convert the practical separation into a legal separation or the role of the adult child as substituted decision maker. The Court decided that a property settlement between the couple was not ‘just and equitable’ as required by the FLA. Interestingly, the reasons it was not just and equitable were close to describing an ‘intact’ marriage, that is that the wife’s needs were being met by her husband (via a trust fund he had set up for her) and he wanted to continue living in his home of over 48 years, which he had shared with her for over 35 years. The Full Court of the Family Court[65] did decide the marriage had not ‘broken down’, that is although the couple lived apart they were not ‘separated’. This conclusion was undisturbed in the High Court.
[62]Stanford v Stanford (2012) 247 CLR 108.
[63]The judgment at first instance required the husband to pay the wife $612,931.
[64]per French CJ, Hayne, Kiefel and Bell JJ.
[65]Stanford & Stanford [2012] FamCAFC 1.
I am not satisfied that Inise has no prospect of successfully establishing that she remained a ‘member of the household’ after Olive’s involuntary departure for residential aged care on 2 June 2013. An involuntary separation does not end a domestic or de facto relationship which depends on ‘living together’ and mutual commitment for its existence. Neither does an involuntary or forced separation mean that parties to a legal marriage have formally separated. It may be that the involuntary nature of Olive’s removal from her home and the continued family-like commitment given to Olive’s welfare by Inise preserves their ‘household’ as such things preserved the marriage of the husband with his wife in Stanford. Like spouses, the relationship of ‘member of the household’ depends on a legal definition, not a biological relationship. An involuntary separation can occur in many households. For example, a dependent parent who had been living with an adult child until the adult child is admitted to palliative care for the final months of a terminal illness. I decline to grant summary judgment on the basis that an involuntary physical separation of a deceased and a plaintiff for health reasons terminates a ’household’ notwithstanding continuing care, contact and involvement in each other lives.
Inise’s alternative argument, that Inise had been in the past and would have been likely in the near future, had Olive not died, to again become a member of the same household as Olive, is untenable.[66] Inise’s counsel sought to persuade the Court that Olive at 94, years of age and after more than three years in nursing home, may have left the nursing home to physically live with Inise. This may have been a possibility, but what is required by the Act is evidence of a likelihood of resumption of membership of the same household ‘in the near future’, had the deceased not died. The evidence is clear that Olive required full time residential aged care at the time of her death, as was appropriately arranged for her by Inise in 2013. There was no evidence that Olive could be properly cared for outside a residential aged care facility, to substantiate the possibility of Olive leaving to reside at the same location as Inise. I am satisfied that this alternative eligibility claim should be summarily dismissed.
[66]This alternative is embedded in definition (k) of eligible person in s 90 of the Act (n 33).
Dependency
At the hearing, I called on the parties to assist by providing written submissions after the hearing on the dependency required by the Act in order to succeed as a ‘member of the household.’
Threshold Dependency
A person relying on paragraph (k) of the definition of eligible person must satisfy the Court that they were wholly or partly dependent on the deceased for their proper maintenance and support before a family provision order may be made in their favour under s 91(2)(b) of the Act.
In New South Wales, a member of the household must show they were wholly or partly dependent on the deceased as part of establishing eligibility as a member of a household.[67] In Victoria, this may be considered a separate issue and not incorporated into the question of eligibility.[68] That is the defendant’s position. It may make no practical difference.
[67]Spatav Tumino [2018] NSWCA 17, [58] (‘Spata’).
[68]In Veniou v Equity Trustees Limited [2018] VSC 832 (‘Veniou’), a family provision application by grandchild was summarily dismissed. A grandchild, under the Act, must satisfy the same dependency tests as a member of the household.
In New South Wales, it is clear that dependency need not be at the time of death or at the same time as membership of the same household.[69] In Victoria, while s 91(2)(b) of the Act is silent on the time of the dependency, it has been determined this dependency need not be ‘as at the date of the deceased’s death’.[70] The defendant, for the purposes of the current application, accepts that s 91(2)(b) dependency does not have to be shown at the time of the deceased’s death.
[69]NSW Act (n 14) s 57(1)(e)(i).
[70]Veniou (n 68) [28], although dealing with a grandchild claim, s.91(2)(b) of the Act applies.
Therefore, if Inise can satisfy the Court that she had been at least partly dependent on Olive for her proper maintenance and support at any time, although not necessarily at the time of Olive’s death, the Court may in its discretion make a family provision order in her favour, subject to later statutory requirements discussed below.
The facts of this case, as outlined earlier in these reasons, shows that Inise was at least partly dependent on Olive while they physically resided together at Olive’s home. The defendant, for the purposes of the current application, proceeds on the basis that Inise had been dependent ‘to some degree’ on the deceased and satisfies the requirements of s 91(2)(b) of the Act.[71] That is a sensible concession.
[71]Defendant’s Further Outline of Submissions, 27 March 2020, 7 (‘Defendant’s Further Submissions’).
Quantum Dependency
After satisfying the threshold dependency required by s 91(2)(b) of the Act, an order for provision may be made for a member of the household under the Act. However, dependency on the deceased at the time of death is relevant to the quantum of any provision that may be ordered.
By s 91(4)(d) of the Act, the Court, in determining the amount of any provision to be ordered for a member of a household, must take into account the ‘degree’ of dependency on the deceased for ‘proper maintenance and support at the time of the deceased’s death.’ Then, by s 91(5)(b) of the Act, the amount of provision which is ordered must be ‘proportionate’ to that degree of dependency. The extent of any earlier dependency is irrelevant to the limit imposed by s 91(5)(b) of the Act on the amount of provision that may be ordered. If there is no dependency at the time of death, the Court is bound to determine that there is no degree of dependency and, proportionately, no provision may be ordered. Such a claim is futile. This was the result in Veniou v Equity Trustees Limited (‘Veniou’).[72]
[72]Veniou (n 68).
There are a number of New South Wales cases which deal with dependence with respect to members of a household. However, three cautionary points arise. First, these cases relate to the ‘eligibility dependency’ required by the NSW Act,[73] not dependency for the purposes of determining quantum of provision as is required by s 91(4)(d) and (5)(b) of the Act. Second, New South Wales does not require dependency at the time of death, but at any time. Third, as noted in Veniou, s 91(4) and (5) of the Act requires dependency on the deceased for the eligible person’s ‘proper maintenance and support’. These additional words are not used in the dependency aspect of eligibility as a member of the household in the NSW Act. However, the two States do have one thing in common. Neither the Victorian nor the New South Wales family provision legislation defines the words ‘dependent on.’ Nonetheless, the New South Wales decisions are again my starting point.
[73]NSW Act s 57(1)(e).
Dependency in New South Wales
In Spata v Tumino (‘Spata’),[74] an adult step son claimed as a member of the household. He had lived with the deceased and his father for a ‘few years’ following the breakdown of his marriage, as well as for a ‘few months’ at an earlier stage. The asserted dependency was ‘slight’ (or what might be called in Victoria of a low or very low degree) being accommodation and provision of ‘domestic services’, food and household supplies.
[74]Spata (n 67).
The trial judge determined that as the home belonged to the step son’s father, accommodation was not provided by the step mother, rather they were both dependent on the applicant’s father for accommodation. The trial judge was not satisfied the step son was dependent on provision of ‘domestic services’ as his evidence only showed trivial assistance nor was the judge satisfied of the provision of food or other household supplies by the deceased. Therefore, although a member of the household, the step son failed to show dependency as required to be eligible to claim under the NSW Act and his claim was dismissed. The step son appealed, relying essentially on the provision of accommodation.
On appeal, the New South Wales Court of Appeal[75] considered the meaning of dependency in the NSW Act and noted:[76]
It has long been held that the word ‘dependent’ is an ordinary English word and the question of whether a person is wholly or partly dependent on another is a question of fact: Page v Page[2017] NSWCA 141 at [7], per Sackville AJA (with whom Leeming JA agreed on this point). Although Sackville AJA noted that the construction of s 57(1) was not in issue in that case, he cited Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 (per Hope JA with whom Clarke and Sheller JJA agreed) and Aafjes v Kearney (1976) 180 CLR 199; [1976] HCA 5 at 204 (per Barwick CJ) and 210 (Mason J, Stephen J agreeing), as authority for the proposition. To these cases may be added the decision of Meagher JA (with whom Basten and Campbell JJA agreed) in Tobin v Ezekielat [109]-[111] and that of Samuels JA (with whom Hope JA and Mahoney JA agreed) in Ball v Newey (1988) 13 NSWLR 489 at 491 who said:
’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 LJ in Lee v Munro (1928) 98 LJ KB 49 at 53…, that in ‘deciding whether or not there is dependency the factors to be considered are past events and future possibilities’. While it is true 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.
[75]Ibid per Payne JA at [53]-[72], Macfarlan JA and Sackville AJA agreeing on this point.
[76]Ibid [68].
The complexity embedded in this ordinary English word ‘dependent’ is explored further in Spata:[77]
In Amaca Pty Ltd v Novek [2009] NSWCA 50 at [45], this Court endorsed the earlier statement about ‘dependency’ in Middleton v Kiama District Hospital[1970] 3 NSWR 136 at 138:
Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of ‘dependants’ does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a ‘dependant’ is a member of the workers’ family who was ‘wholly or partly dependent for support upon the worker at the time of his death’. Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts’ Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.
[77]Ibid [79].
In New South Wales, it seems whether a person is dependent on another is a question of fact that remains intertwined with the underlying relationships. Further, it is not limited only to receipt of financial assistance from the deceased. Indeed, as we can see from the authorities cited in Spata at [74], there can be dependency without the provision of any actual support and there can be provision of actual support without dependency. It is a relationship to the deceased. Dependency refers to a state or condition of being dependent. As explained by Hallen J in Russell v NSW Trustee and Guardian:[78]
The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.
[78]Russell (n 51) [24]-[34].
The Court of Appeal in Spata rejected the argument by the estate that the dependency required for a member of the household to be eligible in New South Wales should be limited to ‘a relationship which of itself gives rise to a statutory obligation to make provision from the deceased person’s estate for the proper maintenance, education or advancement in life of the dependent’.[79] This more restrictive test was derived from the decision of Basten JA in Page v Page.[80] In Spata, Payne JA,[81], noted the settled line of authority to the contrary, the need to construe the legislation beneficially and, said at [72]:
Further, the text of the section and the context in which it was enacted does not provide support for any narrower reading. A finding of being ‘wholly or partly dependent’ does not itself give rise to a statutory obligation to make provision from the deceased person’s estate for the proper maintenance, education or advancement in life of the dependent; it is merely the first step.
[79]Spata (n 67) [69].
[80]Page v Page [2017] NSWCA 141.
[81]Spata (n 67) (Macfarlan JA and Sackville AJA agreeing).
In the result, the Court of Appeal in Spata rejected the trial judge’s focus on the legal ownership of the home rather than addressing the factual question of who decided who lived in the home. However, as there was no evidence as to what part the deceased played, if any, in the decision to permit the step son to remain in the home for a few years, the appeal was dismissed.
While this appeal was dismissed on its facts, there is no doubt that in New South Wales family provision cases, reliance on the deceased for accommodation may amount to dependence ‘especially if the deceased and the claimant were in a family-like relationship’ but that the mere fact of lodging in another’s property without paying rent does not necessarily amount to dependence.[82] This returns us again to the underlying relationship.
[82]Ibid [63]; Tobin v Ezekiel [2012] 83 NSWLR 757.
In Petrohilos v Hunter (‘Petrohilos’)[83] dependency was expanded beyond exclusively financial or material aid, to include such things as the invaluable care involved in parenting a young child at 346-7:
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 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 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 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 (dec'd) 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 latter years of this period.
[83]Petrohilos v Hunter (1991) 25 NSWLR 343 (Hope AJA Clarke and Sheller JJA agreed).
However, emotional dependency alone without any element of financial support or material aid is insufficient..[84] There must be at least some element of financial or material assistance, at least for a full capable adult person. Of course, Petrohilos deals with the non-financial dependency of children too young to care for themselves or to put it another way, are too young to live independently. Nonetheless, reliance by adults on the deceased for needs other than financial or material assistance may amount to ‘dependence’ under the NSW Act, if dependence is taken as the condition of depending on someone for what is needed.[85] In Tobin v Ezekiel[86] at [109], Meagher JA (Basten and Campbell JJA agreeing) cited Petrohilos to support the conclusion that dependency in the context of family provision claims means actual reliance on [the deceased] for the total or partial satisfaction of some need, and is not limited to purely financial or material matters. However there needs to be a distinction between the non-financial support given to a dependent young child and voluntary domestic assistance for co-resident adult. Brereton J, at first instance in Spata was not overturned on this point, said regarding this distinction at [68]:
The same cannot be said of able-bodied adult children who are perfectly capable of washing their own clothes, preparing their own meals and shopping for their own supplies. That they may not do so, and that their parent or step-parent does so, is an arrangement of convenience, not of dependence.
[84]Benney v Jones (1991) 23 NSWLR 559 (per Mahoney JA, 560; Priestley JA, 566; Meagher JA agreeing).
[85]Ball v Newey(1988) 13 NSWLR 489, 491.
[86]Tobin v Ezekiel 83 NSWLR 757.
In addition to the question of whether or not the recipient actually needs practical assistance, and so is ‘dependent’ on it, trivial activities cannot reach the benchmark of ‘partly’ dependent. In order to be at least ‘partly’ dependent, a recipient of support must show evidence not only of a need for the support that was provided but that it was more than ‘minimal’ dependence.[87]
[87]Alexander v Jansson [2010] NSWCA 176; McKenzie v Baddeley (1991) NSWCA 197.
Dependence in Victoria
The meaning of dependency in s 91(4) and (5) of the Act was considered in Veniou. Lansdowne AsJ considered the additional requirement in the Act that the dependency on the deceased be for the eligible person’s ‘proper maintenance and support’ and noted that:[88]
…these words setting out the need that is fulfilled, particularly the word ‘maintenance’, limit the necessary dependence to dependence on the deceased for material aid. That is, actual receipt of material aid.
[88]Veniou (n 68) [53].
In the context of all family provision legislation the terms ‘proper maintenance and support’ (or similar) forms the core of what has been termed the jurisdictional question. Did the deceased leave adequate provision to the plaintiff for the plaintiff’s proper maintenance and support? If the answer is yes, the plaintiff’s claim is dismissed. If the answer is no, the Court turns to the question of what amount from the estate is adequate to provide for the plaintiff’s proper maintenance and support? In this context, maintenance and support is sometimes treated as a composite term. However, ‘maintenance’ has been defined in case law as signifying that which is necessary to enable a person to live a normal life and, in the case of a child, be bought up properly.[89] Maintenance is not only daily living expenses or necessities, but holidays, travel and entertainment. Meanwhile, support has been interpreted as provision beyond mere maintenance, what is sometimes called advancement in life.[90] Advancement in life is itself a broad expression and includes provision intended to give an income-earning ability.[91]
[89]Anthony Dickey, Family Provision After Death (The Law Book Company, 1992), 101.
[90]Anderson v Teboneras [1990] VR 527, 537.
[91]McCosker and Ors v McClosker (1957) 97 CLR 566.
Maintenance in family law and trust law generally means periodic payments of money for a person’s day to day living expenses. It is uncommon to order family provision that takes the form of periodic payments, although in most Australian jurisdictions it is possible.[92]
[92]Re Breen [1933] VLR 455; Gregory v Hudson [1999] NSWCA 221.
I am unable to find any authority for the proposition that ‘proper maintenance and support’ could encompass non-financial or non-material assistance.
I respectfully agree with the conclusion in Veniou that the phrase dependent on the deceased for the eligible person’s ‘proper maintenance and support’ used at s 91(4)(d) and (5)(b) of the Act, requires actual receipt of financial or material aid.
Lansdowne AsJ found further support for narrowing ‘dependent’ on the deceased to strictly financial or material dependence from the Second Reading Speech in support of the 2014 amendments, which introduced the dependency test into the Act, as well as introducing a new eligibility regime.[93] The Second Reading Speech identified the purpose of the Bill as being to ‘reduce the potential for opportunistic claims, and to better reflect the underlying policy objectives of family provision laws’.[94] In relation to certain specified applicants, including grandchildren and members of the household, ‘the court will need to be satisfied that they were financially wholly or partly dependent on the deceased’ (emphasis added).[95]
[93]Veniou (n 68) [56].
[94]Victoria, Parliamentary Debates, Legislative Assembly, 18 September 2014, 3443 (Robert Clark, Attorney-General).
[95]Ibid.
It is important to remember, however, that the plaintiff in Veniou did not seek to rely on emotional relationship and relied wholly on receipt of ‘material aid’ to establish dependency. Lansdowne AsJ specifically left open the question of whether “non-material or emotional support could fall within the word ‘support’, or be necessary, in the case of an individual, for that individual to ‘continue existing or operating’”.[96] That is, so long as some actual financial or material aid were provided to the dependent, the existence of emotional dependency may amplify the degree of the dependency. This is consistent with the New South Wales approach, with the exception of young children who may be dependent on a parent for emotional and practical care, but not receive actual financial or material aid support from that parent.
[96]Veniou (n 68) [50].
I am satisfied that dependency in s 91(4)(d) of the Act requires at least some form of financial or material aid and cannot be exclusively emotional support or the provision of caring attention unless, possibly, the claimant is a young child or otherwise unable to care for themselves, say due to disability.
Was Inise Dependent on Olive at the time of Olive’s death?
Promises of Testamentary Provision
The promises made by Olive as to future provision are incapable of being actual financial or material aid. Similar promises were relied on in Veniou. Lansdowne AsJ rejected the argument that the plaintiff relied on the promise of future provision made in the deceased’s lifetime and so was dependent on the deceased to make this provision after the deceased died. Her Honour determined that actual receipt of material aid for a person’s ‘proper maintenance and support’ cannot be satisfied by any promise of future provision from the estate of the deceased.
As noted by Lansdowne AsJ in Veniou at [54]:
I make the additional observation that it can introduce error into the proper construction of the word ‘dependent’ and the concept of dependence in the Act to substitute for them the word ‘reliant’ and the concept of reliance. This can lead to error for two reasons. First, ‘reliance’ on a promise or representation in other areas of law is one only of a number of elements of a potential cause of action in, for example, proprietary estoppel or misleading and deceptive conduct. Reliance on the promise or representation would not ordinarily be sufficient to constitute such a cause of action without proof of reliance to the detriment of the applicant if the promise is not honoured, or the representation proves untrue.
As noted by Lansdowne AsJ, where promises of provision are seriously made and relied upon to the detriment of the person receiving the promise, a different cause of action may arise.[97] Alternatively, as Robert Walker LJ observed in Gillett v Holt:[98]
[I]t is notorious that some elderly person of means derive enjoyment from the possession of testamentary power, and from dropping hints as to their intentions, without any question of an estoppel arising.
[97]See Thorner v Major; Flinn v Flinn [1999] 3 VR 712; McNab v Graham (2017) 53 VR 314.
[98]Gillet v Holt [2000] 3 ALL ER 289, 304.
A family provision applicant ought not to consider that presenting evidence of detriment would improve the argument that there was dependency. The Court can only deal with the current controversy, not any hypothetical buried within it. The Court is concerned with dependency on the deceased, not on the promise. Inise must show dependency on Olive, in Olive’s lifetime, for her needs.
Further, clear promises regarding a testamentary gift is relevant to the moral duty to provide from an estate, where the person receiving the promise bases their life on the expectation created by the promise and fulfilment of the promise becomes necessary for that person’s future support.[99] The classic example arises in farming cases. However, the mere fact of a promise is not conclusive in a family provision claim, even where eligibility is clear.[100] Inise must prove a degree of dependency on Olive in Olive’s lifetime or no order for provision may be made in her favor, regardless of strength of the moral claim created by Olive’s promises.[101] That is, the maximum provision that can be ordered for Inise is set by the degree of dependency, not the extent of the moral duty. On the other hand, a child or spouse might take the entire estate, if that is appropriate, even if completely independent of the deceased at the time of death.
[99]Hughes v National Trustees, Executors and Agency Company of Australasia Limited (1979) 143 CLR 134.
[100]Vigolo v Bostin [2005] 221 CLR 191, [122].
[101]Veniou (n 68) [54].
The relevant time for dependency for the purposes of s 91(4)(d) of the Act is ‘at the time of the deceased’s death.’ That is, at the end but still during the deceased’s lifetime. The Act requires that dependency be ‘on the deceased.’ One feature of a living person providing financial support or material aid to a dependent is that it reduces that person’s own assets to the benefit of the dependent. An inheritance is received after death and it is received from an estate, not than from the deceased.
Effect of Administration Order
Inise, to her credit, did not receive any financial support from Olive after becoming administrator of Olive’s financial affairs by order of VCAT in 2013.[102] Olive’s home was sold in 2015, so from that time, if not before, Olive could not provide Inise with accommodation.
[102]Inise’s Affidavit (n 3) 35.
Inise argues that, as administrator, she was legally restrained by her duties to Olive from providing herself with financial benefit from Olive’s assets. In addition, Inise submits that she undertook the role of administrator for Olive in the absence of anyone more suitable and to meet Olive’s need for this vital support, although no evidence is lead as to this.[103] It seems the thrust of these submissions is that there was an unavoidable necessity for Inise to take on this protective role for Olive, which prevented or frustrated the continuation of Olive’s provision of financial support to Inise, without any active decision on Olive’s part to stop maintaining Inise.
[103]Plaintiff’s Further Submissions, 17 April 2020, 5.
The defendant accepts an administrator cannot take benefit from that role under the legislation that creates the role. However, the defendant notes that this same legislation permits an administrator to pay ‘maintenance’ to a ‘dependent’ from the represented person’s assets.[104] The defendant also points out that an administrator may seek approval from the VCAT for any proposed exercise of power, and if approval is granted, the administrator is protected, subject to proper disclosure by the administrator to the VCAT.[105] Finally, the defendant submits that Inise might have declined appointment as Olive’s administrator and been free to apply for payment of maintenance as a dependent to whoever was appointed in her stead. In short, the defendant submits that appointment as administrator is not an absolute bar to continued dependency. Therefore, as Inise was not dependent on Olive at the time of death, this claim must fail.
[104]Guardianship and Administration Act 1986 (Vic) s 58B(2)(o) (now repealed).
[105]Ibid s 55.
I am satisfied that Inise was not in receipt of financial or material assistance from Olive at the time of Olive’s death and therefore was not dependent on Olive to any degree. The fact that it was Inise who acted as administrator does not change this conclusion, as it was not an absolute legal bar to continued dependency.
Emotional Dependency
If I am wrong and emotional support by itself without financial or material aid is dependence within s 91(4)(d) of the Act, there is no evidence that at the time of her death Olive provided a sufficient level of emotional care to Inise to create a dependency in Inise on that support for Inise’s essential emotional needs. Indeed, there is no evidence Olive was capable of providing such care nor is there any evidence of Inise having such needs. In 2013, about four years before her death, Olive was suffering dementia and incapable of caring for herself in her own home.[106] It was Olive who was dependent on Inise’s unwavering care, advocacy and devotion for her maintenance and support at the time of Olive’s death.
[106]Inise’s Affidavit (n 3) 33-4.
Conclusion
Inise was a member of the same household as Olive from after October 2008 to 2 June 2013, when Olive was placed into residential aged care. During this period, Inise was dependent on Olive within the meaning of s 91(2)(b) of the Act.
Summary judgment is given for the defendant on the grounds that:
(i) Inise was not dependant on Olive within the meaning of s 91(4)(d) of the Act and that therefore, by s 91 (5)(b) of the Act, there can be no order for provision; and
(ii) If Inise and Olive were not members of the same household at the time of Olive’s death, there was no likelihood at that time the women reforming a household ‘in the near future’.
Given the findings above, I do not consider that the Court should exercise its discretion, pursuant to s 64 of the CPA, to allow the plaintiff’s to proceed to a full trial of all issues. This Court has determined the jurisdictional threshold, as such there is no utility with this case proceeding to trial.
The parties are to forward draft Orders giving effect to these reasons. If the parties are unable to agree, including on the question of costs, a further hearing can be arranged.
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