Treasure v Richardson

[2003] NSWSC 664

CITATION:	Treasure v Richardson [2003] NSWSC 664
HEARING DATE(S):	29 & 30 April 2003
JUDGMENT DATE:	28 July 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:
CATCHWORDS:	Family Provision. Application by a former de facto partner. Plaintiff affected by alcohol for many years leading to the end of the relationship. Deceased still assisting plaintiff after conclusion of relationship. No factors warranting the making of the application.
PARTIES :	Madge Lorna Treasure by her Tutor The Protective Commissioner v Carol Richardson
FILE NUMBER(S):	SC 1188/02
COUNSEL:	P.H. Blackburn-Hart for plaintiff J.S. Drummond for defendant
SOLICITORS:	Tony Valentine & Co for plaintiff Bateman Battersby for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Monday 28 July 2003

1188/02 Madge Lorna Treasure v Carol Richardson

JUDGMENT

1 Master: This is an application under the Family Provision Act in respect of the estate of the late Laurence Nicolas Sanderson who died on 29 July 2000 aged 79 years. For many years the plaintiff lived in a de facto relationship with the deceased. The proceedings have been brought on the plaintiff’s behalf by her tutor, the Protective Commissioner. The defendant is the daughter of the deceased and his former wife.

The deceased’s last will and testament

2 By his last will made on the 7 June 1996 the deceased appointed his daughter, the defendant, as executor. He gave legacies of $5,000 each to his two granddaughters and he gave the residue of his estate to his daughter, the defendant. On the 23 August 1996, the deceased executed a statement in which he explained the reasons why he did not make provision for the plaintiff in his will.

The estate of the deceased

3 At the date of death, the estate of the deceased consisted of his property at 37 James Street Seven Hills which was sold in October 2000 for $168,000. There was cash in the bank of slightly in excess of $12,000 and there were personal effects of $500. The legacies of $5000 each were paid to the legatees and on 8 December 2000 the balance of the estate, namely, $152,000 was paid to the defendant. The defendant used those funds to purchase a property at Kingswood Park for $105,000 and she spent the balance on various improvements to the property and the purchase of a motor vehicle. Apparently the house is now worth $220,000. If the plaintiff is successful in her application she seeks to have the property at 203 Richmond Road, Kingswood Park designated as notional estate for the purposes of payment of any legacy that she might receive.

4 The costs incurred by the defendant at the end of the two day hearing will amount to $32,626.96. The plaintiff’s costs will amount to $34,300 making a total of $66,926.96.

The family history

5 I will recount a little of the family history in order to put matters into context. The plaintiff was born on 2 August 1928 and is now 74 years of age. The defendant was born on the 22 April 1948 and she completed her secondary schooling at Seven Hills High school in 1963 when she was 15 years old. Her mother died in 1970.

6 The defendant had three children. Craig born on 9 September 1972, Dean on 2 December 1974 and Todd on 31 October 1978. These were children she had with David Lindsay whom she married in 1978. She separated from David Lindsay in 1980 and in 1986 she married Alan George Richardson. She and Mr Richardson were divorced in 1987.

7 The plaintiff moved into the deceased’s home at No 37 James Street, Seven Hills together with her son John Keith Treasure in late 1972 or early 1973. In 1974 the deceased’s son John Sanderson and his then wife, Francis Hoffman, moved into 37 James Street Seven Hills where they lived until 1979 when they moved out to go and live in Queensland.

8 On 19 October 1989, the plaintiff was admitted to Blacktown Hospital with a fracture of the left femur. On 24 October 1989, she had an operation on the left hip and she was discharged from hospital on 10 November 1989. On 22 November 1989, the plaintiff was admitted to Blacktown hospital with a fracture to the right femur and right humerus and she was operated on for that condition on 27 November 1989. She was discharged on 14 December 1989. It is apparent that by this stage the plaintiff was drinking to excess and that this had contributed to the accidents which she had suffered. It was in 1989 that the deceased retired from his work as a barman.

9 On 28 June 1994, the plaintiff was admitted to Blacktown Hospital following a fall which was described as being the result of poor mobility and chronic poor self-care. It is apparent that by this time the plaintiff’s alcoholism had advanced to a stage where she was taking little care of herself and was living in the house contrary to the wishes of the deceased. On 11 July 1994, the deceased, the defendant and her daughter departed for a trip to England. The deceased had refused to have the plaintiff back into his house. However in his absence, after her discharge on the 19 July 1994, she had the locks changed and re-established herself in his home.

10 On 8 November 1995, the deceased made an application to the Guardianship Board in respect of the plaintiff and on the 19 February 1996 the Guardianship Board made a limited order for one year. It was in 1996 that the deceased made his last will and wrote the letter of August 1996 explaining why he made no provision for the plaintiff. On 27 February 1997, the Guardianship Board did not extend the limited 12-month order.

11 On 12 July 1998, the plaintiff was re-admitted to Blacktown Hospital and on 17 July 1998 there was an application by a social worker to the Guardianship Board on 20 August 1998. The Guardianship Board made a management order in respect of the plaintiff. In July 1998 the plaintiff was transferred to the Doonside Nursing Home. In June 1999, the deceased was admitted to Blacktown Hospital suffering from respiratory problems. These problems had affected him for many years during most of the 1990s. It was because of these problems that he found it extremely difficult to look after the plaintiff during the 1990s. The deceased was admitted to Nepean District Hospital in July 2000 and he died on 29 of July 2000.

12 On 18 October 2000, the defendant entered into a contract for sale of the deceased’s property and she obtained a grant of probate on 19 October. There was the publication of a proposed notice of distribution on 7 November 2000 and on 8 December 2000 the sale of the property was completed. Shortly thereafter, the defendant purchased her new property and the first notice of a claim under the Act on behalf of the plaintiff was issued on the 28 June 2001. The proceedings were commenced on 22 January 2002 within the time limited under the Act.

13 The defendant was made a bankrupt on 3 April 1998. That bankruptcy ended on 4 April 2001. Accordingly, as a result of section 116 (1) (a) of the Bankruptcy Act her interest in the estate of the deceased became after acquired property and devolved upon the Official Trustee in Bankruptcy. See also Official Receiver v Schultz (1990) 170 CLR 306.

The plaintiff’s eligibility to make a claim

14 The plaintiff had ceased to live with the deceased some years before his death. For the plaintiff to be an eligible person she must have been a member of the deceased’s household and wholly or partly dependent upon him. There is no doubt that she was a part of his household as she resided with him from 1973 until 1998. It is also abundantly clear that she was dependent upon the deceased for her accommodation during this period. She was not working and she did not receive a pension until 1988. In addition during the 1990s the deceased did the shopping, cooking and banking for the plaintiff as well as purchasing her alcohol which plagued her later years.

Factors warranting under section 9

15 It is necessary under s 9 (1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. Courts have dealt with this expression 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.'"

16 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 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.”

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

18 There are a number of matters which the Plaintiff submits are factors warranting the making of the application. They include:-

1. The fact there was no property settlement between the deceased and the plaintiff following the cessation of the de-facto relationship.
2. The lengthy period of the relationship of arguably twenty-five years.
3. The contributions made by the plaintiff as homemaker to his welfare in the period from the commencement of the relationship to approximately 1990.
4. The fact that the plaintiff had given up paid employment at some time after she commenced her relationship with the deceased.

19 There is no doubt that for some time the Plaintiff and the deceased lived together in a de facto relationship. There are a number of references in documentary material that support this conclusion. They include:-

(a) Paragraph 5 of the Will dated 7 June 1996 in which the deceased described the plaintiff as “my former de-facto partner”. (Page 2 of Defendant’s Exhibit 1).
(b) The deceased describing himself as the plaintiff’s de-facto on an “Inpatient Election Form” of 22 November 1989, which he signed when she was admitted to hospital. (Page 95 of Exhibit 1).
(c) An ACAT Referral Form dated 27 June 1994 describing the deceased as the plaintiff’s de-facto. (Page 91 of Exhibit 1).

(d) Description of deceased as the plaintiff’s de-facto in an application for guardianship to the Guardianship Tribunal dated 20 July 1998. (Page 178, 179, 180 and 182 of Exhibit 1.)

(e) Description of the deceased as the plaintiff’s “ex de-facto” in a report to the Guardianship Tribunal dated 18 August 1998. (Page 188 of Exhibit 1).

(f) Description in the Reasons for Decision of Guardianship Tribunal dated 20 August 1998 –

“Ms Madge Treasure is a seventy year old woman who has resided with Mr Laurie Sanderson for over twenty years as his de-facto spouse”. (Page 191 of Exhibit)

(g) In addition there is the concession by the deceased’s solicitor, referred to in the same Reasons (page 196) that:

“Mr Sanderson expects, however, that having regard to their twenty year de-facto marriage relationship, it is possible that action will be taken by her [the plaintiff] financial manager claiming an equitable interest in the house.”

(h) There is evidence that the plaintiff and the deceased occupied the same bedroom (Catherine Sanderson – paragraph 4; Frances Hoffman – paragraphs 5, 8 and 10; John Treasure – paragraphs 16, 22 and 24; Russell Treasure – paragraph 15) up until 1989 or 1990.
(i) There is also evidence that for a time the plaintiff did the shopping, washing, ironing and cleaning (Frances Hoffman – paragraph 5; John Treasure – paragraph 15; Russell Treasure – paragraph 16; Catherine Sanderson – paragraph 4), and that the deceased said he provided for the plaintiff (referred to in the Guardianship Board’s Reasons for Decision, page 194 of Exhibit 1); that when the plaintiff moved in with him she had ceased paid employment and he had provided for her “physically, emotionally and financially over the next twenty years.”

20 It was submitted that there was some evidence that the deceased considered the de-facto relationship to have ended in about 1990. See for example, the document “To Whom it May Concern” signed 23 August 1996 (page 159 of Exhibit 1). Notwithstanding this statement it is equally clear that he continued to look after the plaintiff until she was admitted to Blacktown Hospital in July 1998. For example, in the Reasons for Decision of the Guardianship Board dated 19 February 1996 (Exhibit 1 page 155 at 157) it is stated there was a history of refusal of services by the plaintiff but “she has been saved by Mr Sanderson’s persistence in providing food and drink for her and a level of personal assistance” and the Reasons for Decision of 20 August 1998 (Exhibit 1 page 191 at 194) it is recorded that the deceased “stated there had been an on/off relationship between himself and Ms Treasure for over twenty years …” and that the deceased insisted on continuing to do her banking, cooking and shopping because he “didn’t want anybody else doing it for her”. (Page 174 of Exhibit 1).

21 It seems likely to me that the deceased considered that he and the plaintiff were living in a de facto relationship at least up until 1989. The facts support this belief of the deceased and I find that the plaintiff and the deceased were living in a de facto relationship up until 1989. From that time the relationship changed as a result of the further deterioration of the plaintiff’s situation caused by her drinking problem. By 1994, the deceased was actively opposed to the plaintiff continuing to live in the house. They had not shared a bedroom since 1989 or perhaps 1990.

22 In this area of discourse the situation of a former de facto spouse is somewhat akin to the situation of a former spouse. There are a number of cases where the courts have considered the question of factors warranting the making of an application on the traditional basis in respect of former spouses. In Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639, a number of the Judges dealt with this matter . Kirby P had the following to say:

"Fifthly, the respondent, picking up one of the themes of Mr Landa's comments, urged that s 9(1) of the Act was to be read in the light of the policy of the law to promote the finality of settlements of property disputes by orders made in the Family Court. Where such orders had been made, an order under the Act in the case of a former spouse should be exceptional. Only if this approach were adopted would the policy of the Family Law Act (Cth) be fully achieved. That policy is that parties whose marriage has been dissolved and in respect of whom orders have been made disposing of their matrimonial property, could go their separate ways . Save for the rare and exceptional cases provided under the Family Law Act (Cth), such parties should henceforth face no financial obligation from one to the other. This public policy was referred to by Young J in O'Shaughnessy (at 149). It was also stressed by his Honour in the present case. There is no doubt that in most cases, the achievement of a final property settlement in the Family Court would be seen by the parties, in current social circumstances, as terminating any moral claim of a former spouse to provision in the will of the other. Confronted by the news that he or she had been excluded from the will of the former spouse, the response would, in the overwhelming majority of cases, be: 'Our marriage was dissolved. We settled our financial affairs. We can each start a new life. That was the whole point of the Family Court proceedings.' To this extent, I agree with what Young J has written in O'Shaughnessy and in this case."

Mahoney JA said the following:

"That which the court 'shall first determine' is whether 'there are factors which warrant the making of the application'. That phrase may be contrasted with the references otherwise made to the determination of, for example, 'what provision (if any) ought to be made in favour of an eligible person...'. On the face of s 9(1) there is a distinction between 'factors which warrant the making of the application' and factors which warrant the making of an order.

That distinction accords with the principle which, in my opinion, is inherent in the legislation, viz, that, special cases apart, an order is to be made only if the deceased has made default in the performance of a duty which he owed to the particular plaintiff. I do not think that this case requires a final analysis of the basis of applications under the Act: It will be sufficient to refer to this matter in general terms. But the Act authorises the court to 'order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person' (s 7). That does not mean that, if the plaintiff establishes a financial need within the section and if on taking into account the considerations referred to in s 9(2) (the discretionary considerations) there be nothing to the contrary, an order must be made. The statute assumes that the deceased, in what he has done during his life and by his will, has failed to discharge a duty which he owed to the plaintiff (the moral duty). Thus, a plaintiff may be a former spouse who, on dissolution of the marriage, received what on any view she was entitled to have and there may have been no further relationship between them so that none of the factors in s 9(3)(a) to s 9(3)(c), are of relevance. But, at the deceased's death, she may have a financial need. In such circumstances, the fact that the plaintiff has established that she was a former spouse and has a financial need would not, as such, entitle her to an order. It would be necessary for her to establish that, in some way or because of circumstances within s 9(3)(d), the deceased had a duty to her which involved that he should have provided for her financial need. This will be so a fortiori where the basis for the eligibility of the plaintiff is alleged to be within par (d) of the definition of 'eligible person'." Importantly, it can be seen that the question of need is a separate matter and factors warranting are something different from that.

23 In another case, Churton v Christian (1988) 13 NSWLR 241, to which I have already referred his Honour Priestley JA said the following, in respect of this type of application:

"Mrs Christian is a member of a class in respect of whom warranting factors may often be more difficult to find. It is common experience that divorce sometimes brings to an end all links between previously married people. In such cases, warranting factors might well be expected usually to be absent, although this need not be universally so. On the other hand, divorced persons may remain on close terms, sometimes little different from those on which they lived when married. In every case it is necessary to examine the actual relationship between the two people concerned, as far as possible without preconceptions based only on the fact of divorce."

24 In his comments he illustrated a situation which sometimes applies after there has been a divorce and a property settlement: Namely, that the parties still continue to have a close association.

25 In the present case the plaintiff and the deceased had a de facto relationship for 16 years. After it ceased there was no property settlement and the relationship merely continued on in the very unsatisfactory way to which I refer later in these reasons. The situation is to be contrasted sharply with the situation which sometimes applies when former spouses continue their association and a claiming spouse extends care through friendship or for other reasons to the deceased. There has been no property settlement in the present case and the question, which must be considered, is whether in the circumstances of the relationship up until the time of its determination any property settlement was appropriate.

26 Later in this judgment I go into more detail of the contributions that the plaintiff made to the deceased and the household in the period up until 1989. There was no contribution to the house or its purchase and the deceased had owned it for the whole of the period of the relationship. The plaintiff has stayed at the home during the period of the relationship and contributed little by way of finances to the ongoing costs involved in the household. The contributions to be considered would thus be household contributions as a homemaker. This is not the type of case where a partner has stayed at home carrying out a homemaker role and their efforts in this regard have enabled the other partner to go out and earn income in order to purchase or pay off a home. For those 16 years the plaintiff had the benefit of accommodation in the deceased’s house and this is a factor which would have to be taken into account. See De Gallo v Fredrikson 27 Fam LR 162 at 173-4 and Zwernemann v Conatty Bergin J 13 April 1999 at para 87 – 89.

27 In these circumstances any likelihood of the plaintiff obtaining a property settlement is quite minimal and one should look at the situation on the basis that at the conclusion of the de facto relationship little if any property settlement was called for. When one takes that into account with the reverse situation which happened for the next nine years namely the deceased in very trying circumstances extending care to the plaintiff I am not satisfied that on the traditional test there are factors warranting the making of the application. I will now turn to consider whether the plaintiff has prospects of success in order to deal with the alternative basis suggested by Fitzgerald AJA.

Legal Principles.

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

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

The situation of the Plaintiff

29 After the plaintiff was admitted to Blacktown Hospital on 12 July 1998, she then transferred to the Doonside Nursing Home where she has remained ever since. She is seventy four years of age and her only source of income is the Old Age Pension of $435.20 per fortnight and a small amount of interest on funds held in trust for her by the Protective Commissioner. Those funds amount to $6,573.73. Her pension is used to meet her accommodation costs at the Nursing Home. She also has furniture and personal effects valued at approximately $500.00.

30 The plaintiff gave evidence before me and it is clear that her dementia is having some effect on her short-term memory. She appeared to have very little understanding of where she was living although she could remember some past events and her family. Her evidence was consistent with the most recent report of Mina Podbereski a social worker who visited the plaintiff on two occasions. She noted the following matters in connection with the Plaintiff’s health:

“Since the previous report there has been a marked decline in Mrs Treasure's health. She has progressively become frailer. She was reassessed by an Age Care Team in July 2001 in relation to her care needs and was downgraded from a Category 4, which is a level that indicate her suitability for nursing home/hostel living to a Category 3 which requires increased help with personal care and reduces her options to being only suitable for nursing home care. She is no longer suitable for hostel care.
In the last 12 months, and more recently in the last 2 months she has lost a considerable amount of weight, has become more easily confused and her mobility has declined. She is still ambulant with the use of a walking frame. She now requires assistance for personal care.
Her dementia appears to be increasing, if somewhat gradually. She has good recall of her past life. However she is unable to place recent events in time and place. Although she recalls recent events especially if prompted.
She has good conversational skills and a bright sense of humour. She can toilet, dress and feed herself. She has had very infrequent periods of incontinence that occur when she is unwell. At present she is fully continent.
The primary health problem is the generalised constant pain she suffers. She has recently had a full orthopaedic and medical review. However the doctors were unable to ascertain the reason for the high level of pain of which she complains.
She suffers from chronic osteoporosis and osteoarthrosis, which affects her mobility. She had a fall recently and injured her left lower leg that has become infected. Mrs Treasure uses a walking frame to assist her mobility.
Mrs Treasure receives podiatry services monthly depending on her requirements. This is arranged through the Nursing Home.”

31 The social worker also reported on the appropriateness of her accommodation. At Doonside she shares a bedroom with five others in that nursing home. In her report she made the following comments on the Plaintiff’s accommodation:

“Appropriateness of current accommodation:
There is a change in my recommendation. Previously I indicated Mrs Treasure would do well in a hostel, however since my last report due to her increased frailty she is now only suited to living in a nursing home. Her care needs have increased and she now requires additional supervision. For example the Nursing Home has had to remove her lighter as she has been caught smoking indoors and at night.
She has become more involved with the indoor activities and consequently her social interaction with other residents has increased.
Mrs Treasure is more settled at Doonside. She has expressed an ongoing wish to return to Baradine, which has facilities for "aging in place."
I previously recommendation (sic) a transfer to the Hostel at Baradine, this may still be an option. However instead of a hostel she should seek a nursing home bed. Her quality of life appears to have improved at Doonside. She is substantially more positive, as she has greatly enhanced her relationships with both the care staff and the other residents.
Doonside Nursing Home is currently up for sale, hence the future for Mrs Treasure is uncertain and she may require relocation. Should this occur an effort should be made to place her in Baradine.”

32 The social worker summarised the needs of the plaintiff in the following terms:

“Mrs Treasurer's current and long-term needs are basic and focused on issues of direct support, accommodation and material needs. However her life can be greatly enhanced by adding a few recreational and personal care supplements.

Her quality of life will increase substantially from having an additional carer to take her out on weekly outings. Mrs Treasure has had a very colourful life, in her younger days she would dine in restaurants and often go to the races. Should she have funds such additions will increase her pleasure and quality of life.
In addition an electric reclining chair with built in heating/warming pads to ease the osteo-arthritic pain she suffers. As she ages she will require water chair, ripple mattress, and she may benefit from a motorised wheel chair.”
If a position or vacancy occurs at the Baradine nursing home this should be assessed according to her condition at the time. The cost of care will remain the same as at Doonside. There will be several one-off costs such as furnishing her room at the hospital and the transport from Sydney to Baradine.”

33 The social worker costed the requirements on a weekly basis in the following amounts:

On going companion weekly (3 hours) $90 per week
Costs of outings (eg. club, picnics, shopping,
lunch, dinner) $40.per week
Taxi fares, to visit family $12 per week
Beer (one can daily) $17 per week
Telephone rental and call costs $18 per week

34 The costs of the plaintiff’s future equipment and care needs are as follows:-

Electric wheelchair $5,400
Alternating air pressure mattress $610
Clothing (needs to increase due to incontinence) $1,500
Water chair (R1750) $1,245
Bed, wardrobe, dressing table and armchair
(if moving to a hostel) $2,500
Doona $230
Total $11,485
Transport costs with companion carer to Baradine $1,600

35 Her current expenses of $216.00 per week are met by her pension.

36 There was no evidence of the life expectancy of the plaintiff and accordingly the plaintiff in submissions limited her claim to a legacy of $40,000. It is apparent that the weekly costs I have referred to above which are not met by her pension amount to the $9204 per annum. There were criticisms of the needs advanced by the plaintiff on two main bases. The first was that there was no evidence as to the quantification of an appropriate lump sum to meet the annual payments. This is true but given the level of the claim made by the plaintiff it is clear that her claim is modest in this respect and probably will accommodate her for some years until her condition inevitably deteriorates. The other criticism is that the additional amounts are non-essential. It was submitted that she was already adequately cared for when one compared the effect on the defendant if an order were made. It was submitted that it was not appropriate for a court to address this level of need in such a small estate. This is better addressed on the discussion of whether an order is appropriate which I will deal with shortly.

The defendant’s situation

37 The defendant is 57 years of age, single and has no dependants. She has her house, which she says is now worth $220,000, a car worth $12,500 and cash in the bank of $300. She receives a disability pension of $398 per fortnight, which is consumed by her expenses. She has a number of health problems including lower back pain that will mean that she will not be able to obtain employment although she has tried to obtain it in the past.

38 She lodged an application with the Australian National Credit Union for a loan of $45,000 for the purposes of meeting her costs of the present proceedings. She offered her existing house as security for the loan but the application was rejected. She gave evidence to suggest that she would not be likely to obtain a loan in an amount of $20,000. That amount is the amount of the debts which she owes in her bankruptcy and which she is liable to repay to the Official Receiver. No doubt because she did not know that she was obliged to notify the Official Receiver of the property she received in the course of her bankruptcy no claim has yet been made by him at this stage. The matter now having been raised I will proceed on the basis that she will comply with her legal obligation to notify the Official Receiver pursuant to s 77 (f) of the Act and thus one would expect that a claim will be made by the Official Receiver. In these circumstances, it seems likely that she will have to sell her home.

39 If her defence of the present action is successful she will be entitled to recover an order for costs against the Tutor although this may not fully reimburse her for all the expenses she has incurred. Of course, if the plaintiff is successful then there is no doubt that the house will have to be sold.

40 There was no criticism of the relationship between the deceased and his daughter. There was a substantial amount of evidence concerning the relationship between the plaintiff and the deceased and I will now turn to this matter.

Relationship between the Plaintiff and the deceased

41 In the note dated 9 August 1996 that was signed by the deceased shortly thereafter, he expressed his reasons for not making provision for the Plaintiff. He commenced with an admission that she had lived there for 24 years and that they did have de facto relationship, which he said, was dissolved six years ago. He referred to three occasions in the first 12 years of her residence when she was asked to leave because of her excessive alcohol consumption and abuse. Then he referred to the health problems as justifying her still remaining at the premises and he then referred to the incident in 1994. He referred to the total lack of help from the plaintiff’s family. Then he also referred to the fact that she did not contribute any financial assistance in respect of the management of the premises and that he had assisted her and provided her with a weekly income of no less than $200 or $300 for her personal use. This was an amplification of the statement in his will of the reasons why he made no provision for the plaintiff.

42 The latter of these matters, namely, the provision of an income is true up until 1988 when the plaintiff received a pension. The incidents in 1994 are clear and are as I have recounted above. I am quite satisfied that for the period after 1989 that the plaintiff’s actions caused enormous difficulties for the deceased as he was then suffering from emphysema. It was plainly a very unhappy situation with the deceased trying to do what he could to have the plaintiff removed although still feeling some obligation to look after her while she was still in his home.

43 The period before 1989 is subject to differing evidence before me. Clearly the plaintiff was drinking, probably to excess, in the early years although I am satisfied that she did attend for many years to the household chores, preparation of meals for the deceased and the ironing of shirts. The persons who were prepared to give evidence of the plaintiff’s actions in this respect also conceded that she was drinking to excess in the period 1974 to 1979.

44 In respect of the three occasions when the plaintiff was asked to leave in the early years the evidence was not clear on precisely what happened in respect of those occasions. It seems that even though it was not a perfect situation up until the deceased retired in 1989 it certainly became an intolerable situation for him thereafter. Not only was the plaintiff drinking to excess but her personal hygiene degenerated to a point where it was entirely unpleasant for visitors to be in the house.

Consideration of the application

45 In the present case, I am faced with an application by a person who was for a period from 1973 until 1989 the de facto partner of the deceased. After 1989, the real effect of the relationship with the plaintiff was the extending of some care to her by the deceased. In Marshal v Carruthers [2002] NSWCA 47 Hodgson J had the following to say:-

“63 The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One factor which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased.
64 The Master referred to the following statement of principle which appears in Luciano v Rosenblum 2 NSWLR 65 at 69
It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.
65 I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion, it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage occasioned by the greater responsibility which women often take in looking after children. That factor is of course absent here.”

46 Some of the comments are apposite in the present matter. There was no child of the relationship. It seems clear that there were no financial contributions by the plaintiff to the deceased’s assets. There were no contributions by her to the running costs of the house until she started to receive her pension in 1988. Even after that time, her contributions were very minimal, as her pension would hardly cover the cost of her alcohol and cigarettes. In addition it is plain that the plaintiff caused the deceased problems after 1989. This led to him extending to her care in what could only be described as difficult circumstances.

47 These are factors and matters which weigh heavily against the making of provision or the amount of any provision.

48 The defendant has not contributed to the estate of the deceased. The fact that she is dependent upon a disability pension and is in somewhat straightened circumstances are relevant considerations as to whether an order should be made. Normally a claim by a de facto partner of some years standing would take priority over the claim of an adult child of the deceased. However, I am not concerned with just a simple de facto relationship. I have to balance out that relationship which was for 13 years with its doubtful happiness as against the period of nine years when under very difficult circumstances the deceased extended care to the plaintiff. In this case the needs of the plaintiff are not great. She may never be able to move to Baradine and thus incur those costs. She already has some savings which could be used for some of her necessities. The plaintiff presented as someone who was comfortable in her present circumstances.

49 In the circumstances I do not think it is appropriate to make an order in favour of the plaintiff. In case I am wrong on this aspect I will deal with a few other matters in case some different view is taken.

50 Under section 24 of the Act if the Court is satisfied that an order for provision ought to be made on the application and property as a result of a distribution from the estate held by a person it may make an order designating such property as notional. The power of the Court to do so is subject to the provisions of sections 27 and 28 of the Act. Section 27 is in these terms:

"(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered:

(a) the importance of not interfering with reasonable expectations in relation to property;

(b) the substantial justice and merits involved in making or refusing to make the order; and

(c) any other matter which it considers relevant in the circumstances.

(2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to:

(a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person;

(b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration;

(c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be;

(d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income; and

(e) any other matter which it considers relevant in the circumstances."

51 In relation to reasonable expectations, the defendant said that she did not know of the 18 month period for the bringing of applications. She said that she did not expect an application from the plaintiff but that is difficult to believe. She herself had drafted the August 1996 document with reference to possible claims by the plaintiff. In any event the application was brought within time. The publication of the notice of Intended Distribution does nothing to assist the defendant. See D’Albora v D’Albora (1999) NSWSC 468. In my view there are no properly held reasonable expectations in relation to property which would prevent the making of an order.

52 So far as the justice and merits are concerned it is clear that an order designating property, as notional estate will force the sale of the house owned by the defendant. As that is likely to occur in any event it seems to me that there is nothing that would have led me to refuse to make an order on this ground. It is to be noticed that the property which was purchased by the defendant has increased substantially in value over the period since it was purchased.

53 I dismiss the summons and, subject to submissions, order the tutor to pay the defendant’s costs.

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Last Modified: 07/29/2003