Rhodes v Pounsberry

[2003] NSWSC 636

CITATION:	Rhodes v Pounsberry [2003] NSWSC 636
HEARING DATE(S):	10/07/03
JUDGMENT DATE:	11 July 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:
CATCHWORDS:	Family Provision. Application by a daughter. Lecacy awarded - no matter of principle.
PARTIES :	Denise Rhodes v Wayne Pounsberry - Estate of John Cecil Pounsberry
FILE NUMBER(S):	SC 1271/02
COUNSEL:	Mr L. Ellison for plaintiff Mr M. Willmott for defendant
SOLICITORS:	Bateman Battersby for plaintiff Turnbull Hill Lawyers for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

FRIDAY 11 JULY 2003

1271/02 - DENISE RHODES v WAYNE POUNSBERRY - ESTATE OF JOHN CECIL POUNSBERRY

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late John Cecil Pounsberry who died on 16 August 2001 aged 73 years. The deceased was survived by the plaintiff, who is either his daughter or stepdaughter, and his son the defendant.

2 The deceased made his last will on 8 May 1997 under which he left the whole of the estate to the defendant and appointed him executor.

3 His estate consisted of his house and a small amount of cash. The house has now been sold. The funds, which are now held in a controlled money account, total $190,271.81. This amount is after the payment of some of the defendant's costs and two distributions to the defendant of $10,000 each in March and June 2003.

4 There are further costs of $15,000 for the defendant and the plaintiff's costs are estimated $30,800. If the plaintiff is successful the available estate will thus be $144,471.

5 I will just deal with a little of the history of the family. The testator was born on 30 June 1928. On 14 August 1950 he enlisted in RAAF as a transport driver. He was initially posted to Richmond in November 1950, and in May 1951 he went to Woomera Airfield Construction Squadron. In November 1951 Cocos Island and in November 1952 Momote in New Guinea. Thereafter he came back and for a while he had a variety of postings over the years that took him away from his family.

6 The plaintiff himself was born in Camperdown on 24 November 1950. He lived with his mother and grandparents initially. On 7 March 1953 the deceased married the plaintiff's mother Betty Jean Lenham. The defendant was born on 25 July 1955. It was in 1961 that the deceased returned to live with his family. He still, of course, had to go away from time to time but he spent substantial time at home from 1961. It was in this year that the first episode of sexual abuse was suggested to have occurred by the plaintiff.

7 In 1964 the family home was built at Penrith and the family moved into that home. In 1964 and 1965 there were further incidents to which I will come back in which the plaintiff alleges the deceased made some inappropriate advances to her. In February 1966, the plaintiff commenced working at the PMG Department, and in probably 1966, she moved out of the family home when she was aged 16.

8 The plaintiff married in 1973 and in 1974 they moved to a house which was just near the plaintiff's parents house. The plaintiff continued to visit the house at which her mother and the deceased lived on a fairly frequent basis.

9 In 1987 the deceased left the airforce and he started to work as a bus driver with Bosnjacks Bus Service. The defendant left home in 1977 having married and it was in that year that the plaintiff's first son Aaron was born. Their daughter Christie was born in the following year and her second son Travis was born in 1981.

10 In 1984 the plaintiff returned to the work force working for the Western Sydney Area Health Service. It was in 1985 that the testator retired from his position with Bosnjacks Bus Service. The deceased wife died in 1987. At the time of her funeral there was an altercation between the plaintiff and the deceased about where she was to be buried and this obviously contributed to the feeling between the parties after that date.

11 The last contact the plaintiff had with the deceased is 1994. She describes the contact as having dropped off and her approaches to the deceased, to have him for dinner, were rejected. She also lost contact with her brother in 1996 and it was in 1997 that the deceased made his will. He had a number of strokes and he died in August 2001.

12 Probate was granted in October 2001 and in that month the plaintiff's son Aaron was severely injured in a motor vehicle accident. Although physically all right he has suffered brain injury and he has difficulties, which I will refer to later. The summons was filed in January 2002 within time. The defendant, who had a reasonably secure job, lost his job in September 2002 as a result of the bankruptcy of the company for which he worked.

13 There have been two distributions to which I have referred. At the time of the hearing the plaintiff was aged 52 years with a life expectancy of some 34 years and the defendant was aged 48 years with a life expectancy of some 35 years.

14 The plaintiff claims she is an eligible person on two bases. First, as a child of the deceased but if that is not accepted she claims to be an eligible person as she was part of a household of which the deceased was a member and was dependent upon him.

15 As can be seen from the chronology the plaintiff was born two and a half years before the marriage of her mother and the deceased. She gave evidence that when she was very young she lived with her paternal grandfather and her mother in Harden in New South Wales. The deceased was also born in Harden in New South Wales and probably came from that area.

16 The plaintiff's birth certificate which was issued on 1 March 1954, which was a year after the marriage, lists her father as the deceased. S 11 (1) of the Status of Children Act (1996) states the following terms:

“11. Presumptions of parentage arising from registration of birth
(1) A person is presumed to be a child's parent if the person's name is entered as the child's parent in the Births, Deaths and Marriages Register or a register of births or parentage information kept under a law of the Commonwealth, another State or a Territory or a prescribed overseas jurisdiction.”

17 One can see that there is, thus in the present circumstances, the statutory presumption that the deceased was her father. S 15 of the Act is in the following terms:

“15. Rebuttal of parentage presumptions
(1) A presumption arising under this Division, or a parentage presumption arising under any other Act or rule of law, that is rebuttable, is rebuttable by proof on the balance of probabilities.
(2) Every presumption arising under this Division (except for a presumption arising under s 12(1) or 14(1-3) is a rebuttable presumption.”

18 It is necessary to see whether, in fact, the evidence available will rebut that statutory presumption. The defendant's affidavit para 28 gave the following account of the conversation he had with the deceased:

“28. About the time that Dad made out his will in 1997, he said to me, `There's a few things that I have to sort out. Your sister's not your sister, she's your half sister. I want you to take me to do a will. I want you to have the house.' I said, `What about Denise and the grandchildren?' He said, `No, it's yours. You and your wife and children are the only ones that have stuck by me over the years. Denise has reached a comfort zone in life.'“

19 That was amplified in a later affidavit in these terms:

“My father said further, `Your sister is not your sister. She is your half sister. I met your mother years ago and she already had Denise, who was 2, when I met her.'“

20 This statement by the deceased cannot, of course, be tested. One must see if there might be some other reasons or motives as to why he might have said this.

21 It is plain that at the time the deceased had not seen the plaintiff since 1994. In the discussions he was having with his son, he was in one sense justifying leaving her out of his will, although he had other grounds, particularly the fact that he had not seen her since until that time.

22 I note these matters but I also note that apart from the next piece of evidence to which I am going to come there is little other evidence of other statements made earlier on in the deceased's lifetime. There was evidence given by Judith Full who was a first cousin of the plaintiff's mother. She knew them both before and after the plaintiff's birth in 1950. In para 4 of her affidavit she said the following:

“4. Betty did not know the deceased when she fell pregnant with the plaintiff in 1950, she started seeing him some time after the plaintiff was born in 1950.”

23 How she knew these things is not apparent from the affidavit and it is worth noting that the witness was only 12 years of age at the time the plaintiff was born. Her evidence must come from things told to her by others. In these circumstances and absent any detail in the affidavit on what her conclusions are based, I can place very little weight on that evidence.

24 It has been pointed out that it was some two and a half years between the birth and the marriage. This could well be explained by the deceased's postings.

25 Consenting to have one's name as a father on a birth certificate is a very substantial admission and I am not satisfied on the balance of probabilities that this presumption is rebutted and I find that the plaintiff is the daughter of the deceased.

26 In case I am not correct on this finding I should also deal with the alternative basis. It is clear between 1961 and 1966 they were both part of the same household and that the plaintiff was treated as a child of the deceased. She is thus part of the household and obviously dependent upon him both financially and emotionally.

27 I am satisfied that she is an eligible person. However it is necessary under s 9(1) of the Family Provision Act that the Court should determine whether there are factors warranting the determining of the nature of the application. This expression has been deal with by courts 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 some time dependent grandchildren or 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.'“

28 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.”

29 These principles have been applied at first instance for many years. There has been 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.

30 On the traditional basis it seems to me that there was at least a period of five or six years when the plaintiff was part of the family of the deceased. There was contact later on and also some participation of family events. I would have thought in the circumstances there were factors warranting, having regard to what I have said about the other difficulties with the law on the subject I will go on to see if there are prospects of success.

31 In applications under the Family Provision Act the High Court has recently in Singer v Berghouse (1994) 181 CLR 201 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 were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

32 I turn to consider the situation of the plaintiff. She is 52 years old, married and has a son who is now dependent upon her. Aaron has brain injuries. Although he can do things such as look after his personal hygiene he has no concept of planning for those matters. He was previously married but his marriage has apparently fallen apart. He is going to need to learn many skills, for instance, he has no money skills. He is only just starting to learn to cook again. It seems to me that it might be many years before he can live alone.

33 The plaintiff also has living at home her other son Travis. So far as the financial situation is concerned, the plaintiff owns with her husband a property which is ^ worth $300,000 and they do not have a mortgage on it. They have savings of some $41,000 with property trusts worth $21,000. She has superannuation of $23,000. She cannot access this until she retires. She has a car worth $16,000. She currently has debts on her various cards, credit union totalling $5,584.

34 As far as her income is concerned she is not working and she gets a carer’s allowance of $54 a week and her son Travis pays board $50 a week. Her husband receives an income because of his pension from the police force as he has retired hurt on duty from the police force. His income appears to be about $728 week and her expenses are $725 a week.

35 Apart from these matters they also pay rates and taxes and insurance on her son's house, and they meet the shortfall of the mortgage repayments each week of some $49.75. The house is rented at $200 per week.

36 Although there are payments of Aaron's medical expenses and some Workers Compensation which meant some expenses, clearly the plaintiff and her husband have to meet things on behalf of Aaron, for example the matters mentioned above and veterinary bills of $600.

37 There is no prospect of a damages claim in respect of his car accident as the police report would indicate that he was on the wrong side of the road at the time of the accident. Although he has a Workers Compensation claim for a lump sum that will be held by the Office of the Protective Commissioner for Aaron if and when it is received.

38 There were no contributions by the plaintiff to the estate nor any provision for the plaintiff by the deceased.

39 It is necessary to turn to the relationship between the plaintiff and the deceased. As I have indicated, the plaintiff last saw the deceased in 1994. It is clear that this had been going to happen for some time.

40 The genesis of the reason so far as the plaintiff was concerned lies in what she regards as inappropriate sexual advances by the deceased in her teenage years. The first occurred in 1961 when she was aged 11. She had not seen her father at all or perhaps for many years as he was absent overseas. On his return home at the front door in the presence of his mother or grandmother he greeted her by kissing her on the lips. She regarded this as quite inappropriate. That may be so but it may even be that the deceased did not think it was inappropriate.

41 The second incident occurred when she was 13 and he came to her bathroom without being asked by her and started to wash her back and shoulders. She coiled up to protect herself and clearly felt offended.

42 People have different views about privacy and for a teenage girl struggling with the changes in her body it could well have been quite offensive to her. On his part, it may have been quite innocent. There were others in the house at the time and it would seem unlikely that he would intentionally do something while they were about.

43 The third more serious incident occurred when she was 14. He apparently suggested she lie down on his bed. She was clothed and he lay down beside her and put his hand on her groin. She jumped up and ran away. This was on an occasion when they were both at home by themselves and no one else was about. Clearly if it occurred it was inappropriate.

44 The question is whether or not these events occurred. The plaintiff never accused her father and she only complained after his death to her brother. There was a complaint which she says she made to her husband in 1994 and she has sought treatment for the trauma in recent years. It is very hard always to judge the truth of these matters.

45 It is not unnatural for a child who has suffered abuse to not complain. That she did complain to her husband in 1994, which she spoke of in her evidence and which appears in the letter she wrote to her brother, indicates some reality to the complaint.

46 I am satisfied that the incidents happened. Whether the first two were innocent on the part of the deceased is not that important. What is important is that she believed, as I accept, that they were inappropriate. These incidents do explain the conduct of her leaving home in 1966 to work elsewhere and being distant to her father over the ensuing years.

47 I accept that after her mother's death she tried to keep contact with her father but it gradually faded away. This seems to have been a choice of the deceased. In the circumstances, I think there are adequate reasons to explain the plaintiff's lack of contact with the deceased.

48 It is necessary to see how she has been left without adequate provision for her maintenance, education and advancement in life. There are a number of items she wishes to attend to at the house. She wants to renovate a kitchen and stove which will cost $11,000, install new carpets at a cost of $6,000, and do the ridge capping at $3,950. She says that she has postponed holidays and she and her husband really need a holiday and she estimates it costs $4,000. She also has debts of some $5,484. All these total $30,434.

49 The plaintiff and her husband have some savings but neither can access their superannuation lump sums until they are 60. Hers are modest and her husband would prefer not to suffer the tax consequences of accessing his in any event. He would prefer to keep receiving a pension.

50 They have a difficult situation with their son Aaron. With their responsibilities in looking after him it is clear that they cannot make ends meet and they have a need to live on their capital from time to time. I accept that they have a need for some modest provision to tide them over for the next six or seven years. One needs to consider the situation of others having a claim on the bounty of the deceased. The only one, in this case, is the defendant.

51 The defendant is 48 years old, married with two sons, one of whom works within his new business. His assets consist of his unencumbered house at Emu Plains, which he says is valued at $280,000. Given it is insured for $393,000, it is obviously worth more than he has estimated. His furniture is insured for $86,000. He has about $30,000 in superannuation and his wife has some $13,000. There are debts which he has, personal loans of some $40,000. But he does not have a mortgage on his house. At the moment although he would like to borrow some modest sums, his wife would not consent to such a mortgage.

52 Their income is modest at the moment because of the change of his employment. His wife earns $15,000 per annum net and the children pay $40 a week board. He has just started the business in which he previously worked for the defunct company and he estimates that business, once it gets going, will provide some income of $30,000 for Mathew and for himself an income of $40,000. Previously he managed to earn in the work force $50,591 per annum plus the provision of a car.

53 There are a number of things which he says he needs to do around his home and in Exhibit 2 he has given a list of a whole range of things, some of which are quite minor and probably could have been afforded. They are clearly things of substance such as re-tiling for an amount of $24,750 and a new kitchen for $11,828. Many of the items are small ones and he probably could have afforded them. His problem seems to be that he is a reasonably frequent gambler and that does restrict his ability to do things like repairs and purchasing of small items for the home.

54 The relationship between the defendant and the deceased was good. It was, in fact, the defendant and his wife who looked after the deceased in his declining years.

55 Even if some modest amount were made in favour of the plaintiff he will receive sufficient to clear his debts and have funds to put his business on a proper footing.

56 In the circumstances, the orders that I propose to make are as follows:

(a) I order that the plaintiff receive a legacy out of the estate of the deceased of the sum of $50,000.
(b) I order that the plaintiff's costs on a party to party basis and the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased.
(d) I order the exhibits to be returned.

oOo

Last Modified: 07/28/2003