Weston v Hourn

[2000] NSWSC 543

CITATION:	WESTON v HOURN [2000] NSWSC 543
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1837 / 1999
HEARING DATE(S):	30 & 31 May 2000
JUDGMENT DATE:	16 May 2000
PARTIES :	ERIC WESTON v NEVILLE DOUGLAS HOURN
JUDGMENT OF:	Master Macready at 1

COUNSEL :	J. Whittle SC and Bruce Tounsend for plaintiff Mr A.M. Colefax for defendant
SOLICITORS:	David Fletcher & Associates,Tumut for plaintiff Peter Gain & Associates, Wagga Wagga for defendant
CATCHWORDS:	Family Provision. Application under Family Provision Act by a plaintiff claiming to be the defacto partner of the deceased. So held and orders for provision made out of the estate of deceased.
CASES CITED:	Simonis v Perpetual Trustee Co (1987) 21 NSWLR 677; In Re Fulop Deceased (1987) 8 NSWLR 679; Ball v Newey (1988) 13 NSWLR; Benny v Jones (1991) 23 NSWLR 559; Petroholis v Hunter (1991) 25 NSWLR 343; McKenzie v Baddeley (Court of Appeal 3/12/91; Williams v Legge (Court of Appeal 16/3/93); Churton v Christian (1988) 13 NSWLR 341; Singer v Berghouse (1994) 181 CLR 201.
DECISION:	Paragraph 61

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- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

WEDNESDAY 31 MAY 2000

1837/99 - ERIC ERNEST WESTON v NEVILLE DOUGLAS HOURN - ESTATE OF MARGARET FRANCES BOND

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Margaret Frances Bond who died on 19 December 1998 aged 55 years. She was survived by her husband from whom she had been separated since 1988. Notice of the proceedings has been given to him and he makes no claim on the estate. She had no children and was survived by the plaintiff who had lived with the deceased for some seven or eight months prior to her death. 2 In her will, which was made on 8 September 1998, she left the whole of her estate to her niece, Linda Maree Hourn. Linda is a daughter of the defendant, the defendant of course being the executor under the will and is the brother of the deceased. The deceased had two twin sisters who also had children. It was only the defendant's child who benefited and the plaintiff was not mentioned at all in the will. She referred to her husband in these terms in her will:

"4. I have considered but rejected any claims which my estranged husband, Barry Francis Bond, might have upon my estate as my husband deserted me ten years ago and has made his own life independent of me."

3 The estate consisted of her home in Gundagai, which is now valued at $135,000. There was a car worth $10,000 and some personal effects. Although the house has been rented the income has been used to meet the estate expenses to date. As occurs in these matters, costs have a very substantial impact on the outcome. In the present case the defendant's costs in respect of the administration are some $3,000; and in respect of these proceedings, some $19,734. Part of the costs have been paid out of the income from the property which has been rented since the date of death and the figure I just quoted takes into account the payment of various costs from that income. The plaintiff's costs on a solicitor/client basis are estimated at some $30,000. 4 With these figures in mind, at least $53,000, it is perfectly clear in this case the house will have to be sold to meet the costs. There are the costs of selling. There are agents fees of some $3,530, plus solicitors costs of $846, making $4,376. There has been some debate as to whether or not there ought to be some further discount for an early sale of some $13,500, but the valuer has valued the property at that figure. Although it may take some time I think I will work on the basis of its value less these costs. What this tends to indicate is that the likely residuary estate of the deceased will be $77,750, plus the car which has already been transferred into the possession of the beneficiary. 5 It is useful to deal with some of the history of the parties in order to put into context the matter. The deceased was born on 29 August 1942 and the plaintiff on 2 August 1945. The deceased married her husband Barry Bond on 27 April 1963. In 1966 they purchased the subject property at 63 Otway Street, Gundagai. In 1968 they moved into the property and it was in 1981 that the plaintiff himself came to Gundagai from Newcastle. He worked for a while at the Hume Hotel with some friends and even lent them funds for the purposes of their business. Unfortunately for him in December 1982 the hotel closed, the friends disappeared, as did the funds which the plaintiff had provided to them. The plaintiff then moved in with George Hourn, a cousin of the deceased. In 1983 the deceased and her husband Barry moved to Canberra. At this stage of course she had not met the plaintiff. 6 In 1988 the deceased had an operation for cancer. She had a hysterectomy as a result and at that stage she separated from her husband. She came back to Gundagai and lived in the Otway Street property. There was an arrangement of their financial affairs in that apparently the Canberra property which was in her husband's name, was kept by him and she received by way of transfer for $1 the Otway Street property. 7 It was in 1988 that the plaintiff and the deceased became acquainted. This happened when the deceased began to visit with her mother at the house of George Hourn for social occasions including cards and the like. In early 1989 the friendship that had obviously started to develop between the plaintiff and the deceased led to them going on a trip to Bowraville and Sydney. The parties visited the plaintiff's family. Over the next several years that pattern of going away continued and it was after that first trip that the plaintiff says that he first had a physical relationship with the deceased. 8 In the early 1990s the deceased was suffering from cancer. She had an operation to remove the cancer which left her with a colostomy bag and she had a number of attendances at hospital not only in relation to the operation but also for the subsequent treatment. There was both chemotherapy and radiotherapy and there were continual trips to Canberra in order for this to occur. Probably by the middle of the 1990s the position of the deceased improved somewhat and the plaintiff and the deceased started further trips. By 1995 the relationship was one, according to the plaintiff, whereby he would visit and stay over at the deceased's home on the weekends but he would live otherwise in his rented accommodation or boarding accommodation. He would come each day, according to him, and assist with household tasks, particularly in the garden. In early 1998 the deceased's condition deteriorated and in March 1998 the deceased nearly died as a result of apparently some wrong administration of drugs during her treatment. At that stage when she left hospital on this occasion she came home and lived with her mother for a few weeks and thereafter in April or May she moved back to her home. At that stage the plaintiff moved in to live in the home with the deceased. The plaintiff, who has to go to work early in the morning, said he occupied during the week a separate bedroom so he would not disturb the deceased and would spend time with her in her room on the weekend. By November 1998 the deceased's illness had progressed substantially and she was admitted to Gundagai Hospital. She died on 19 December 1998. 9 In March 1999 these proceedings were commenced. The plaintiff claims to be an eligible person on two bases. The first is that he was living with the deceased at the time of her death in a defacto relationship. The alternative basis is that he was part of the household of the deceased and partly dependent upon her. 10 I turn to whether or not he was living in a defacto relationship. The question of whether or not the plaintiff and the deceased were living together as husband and wife on a bona fide domestic basis must be determined in accordance with the principles referred to by the Court of Appeal in Light v Anderson & Ors, (1992) DFC 95 120. They referred to the decision of Kearney J in Simonis v Perpetual Trustee Co Limited, (1987) 21 NSWLR 677 where his Honour in dealing with the expression in the Act after reviewing the authorities said at page 685 the following:

"'I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts.

This approach, as adopted by Powell J, was also the approach preferred by the Administrative Appeals Tribunal in Waterford's case (see 106). I consider that the factors referred to by Powell J, while not being regarded as a complete test, serve the purpose adequately in the present case to determine the questions of eligible person. The factors indicated by Powell J are as follows (at 459):

1. the duration of the relationship;
2. the nature and extent of the common residence;
3. whether or not a sexual relationship existed;
4. the degree of financial interdependence, and any arrangements for support, between or by the parties;
5. the ownership, use and acquisition of property;
6. the procreation of children;
7. the care and support of children;
8. the performance of household duties;
9. the degree of mutual commitment and mutual
support;
10. reputation and 'public' aspects of the relationship.'

His Honour also referred to the support to be gained for this approach from the report of the New South Wales Law Reform Commission concerning de facto relationships (LRC 36 (1983)). His Honour quoted the following passage in the report (at 459):
'17.10 The application of the basic definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison, to a continuing affectionate companionship, to a long term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pin-point a time when the relationship should assume a new legal significance.'

As I understand it, the parties substantially treated Powell J's approach as being appropriate to the circumstances of the present case."

11 Obviously, the list is not immutable and in particular cases other factors will have to be considered. The list is of use and it is convenient to discuss many of the incidents of the relationship between the plaintiff and the defendant under the headings set out above. 12 1. The duration of the relationship. It can be seen that the relationship has extended from early in 1989 up until the date of death. There were some suggestions in the evidence that there may have been a relationship between the sister and a person called Andrew Needham. The evidence is in a very unsatisfactory state with some allegations being made and at the most would seem that he was a boarder. He was a much younger man than the deceased and apparently this created some problems with the family. However, it doesn't seem to have interrupted the contact that there was according to the plaintiff, which is somewhat surprising and it may be that in the early days that the relationship was not as developed as it became later on. 13 2. The nature and extent of the common residence. It is clear that it was really from April or May 1998 to the date of death that the question of common residence arose. The plaintiff in his affidavit gave evidence that the deceased said to him that she was sick of living alone and wanted to have the plaintiff come and live with her. She also discussed the matter with her mother with whom she was very close. It was also discussed with her sisters and her sisters also apparently approved. As a result the plaintiff did move in and it is clear even on his evidence that he lived in a separate bedroom for most of the week when he was working. On his evidence he only shared a bed with the deceased on the weekend and then probably not in the months before the deceased's death when her condition was progressing. Accordingly there certainly was common residence to the extent at least suggested by the plaintiff in the period to which I have referred. 14 3. Whether or not a sexual relationship existed. Here of course one has to consider the credit of a number of the witnesses as it arises fairly sharply in this area. The plaintiff is the only person who has given direct evidence of the physical relationship which he said existed between himself and the deceased. All other evidence to which I will refer suggests promises of marriage and other matters which might be supportive of the plaintiff's case. However, one needs to consider the different witnesses. So far as the plaintiff is concerned I gathered the impression that he seemed to me to be a straight forward and honest person in giving his evidence. He did not attempt to hide matters. There is a strange aspect to his evidence. He suggested that he did not see much of Needham but it may be that that being in the early days the relationship was perhaps not as much as he thought it was. 15 There was another item which was the fact that he only disclosed in his affidavit his base salary rather than what he was earning from overtime. His explanation was that that was all that was asked. I think, given his somewhat straight forward nature, it probably was the correct explanation rather than a desire to improve his position in the court's eyes. 16 So far as the defendant is concerned, it is perfectly apparent in this case that there is deep antagonism between the defendant and the plaintiff. That unfortunately tends to affect the way the defendant has given his evidence. He made a number of allegations in the witness box in respect of matters that certainly did not appear in his affidavits and one would have thought could have been there set out. He also made allegations which were not supported by other evidence. Accordingly one has to accept his evidence with some hesitation. 17 Another person whose evidence has to be considered is of course the deceased's mother. She had a very strong tie and was very close to the deceased and obviously had her expectations of her daughter. It was clear that she was in error, it seems to me, after answering questions about whether she had had a key to the house after the death of the deceased. The grand-daughter said she got the key from her. What that indicates to me is that there may be some question of the reliability of her evidence. It is more a matter of what might have been said to her by the deceased that really affects the weight that one can give to her evidence. 18 There has been a very sharp division in this case between the evidence on the plaintiff's side and that on the defendant's side on this aspect as to whether there was a defacto relationship and physical relationship between the deceased and the plaintiff. One has to realise in considering this evidence that it is a matter of human nature that people will often say different things to different people depending upon the position that they occupy in their lives. If one takes, for example, the deceased mother, it is perfectly plain that from evidence which the mother gave in the witness box that she would not have approved the plaintiff having a physical relationship with the deceased in the circumstances where the deceased was still married. One can readily understand if there was a very close relationship between the deceased and her mother that the deceased may well not have wished to embarrass her mother by revealing to her the nature of her relationship. So far as the brother is concerned, clearly there is the antipathy between the brother and Mr Weston, and similarly she may not have wished to offend him by speaking of it or making it clearly known what was happening. Interestingly in respect of her sisters she seemed to confide in them in respect of her future intentions in respect of the plaintiff. 19 One also has evidence from the next door neighbours, the Gascoignes. They were long time neighbours, having known the deceased during the time that she was married before she moved away from Gundagai. She seems to have confided in them some of her intentions in respect of the plaintiff. 20 The Bennetts were friends and one has quite a different picture from them of the nature of the relationship. It is hard to see precisely the full depth of the friendship in order to see how close it was and whether the deceased would be likely to share with them the things she shared with her sisters. 21 If one turns to the evidence one finds at least so far as the deceased's mother was concerned she does not accept that the plaintiff ever spent a night at the deceased's home until such time as he moved in in April or May. The evidence of the sisters is fairly important. Mrs Coggan in her evidence said that at about some six years ago there was a discussion with both her mother and the deceased in which the deceased said that she and Eric were going to be married, that she was going to see about a divorce and there was discussion over matters relating to the proposed marriage. That the parties had got to that stage of considering marriage is of course an important matter, particularly where one is dealing with a mature couple. She also gave evidence of the use of a cottage at Adjungbilly known as “The Getaway”, where the plaintiff and the deceased would spend time, sometimes with members of the family. Apparently they shared a room. There is some dispute, certainly from the deceased mother as to whether someone else was sharing their room. She gave evidence that they occupied a room by themselves and one can imagine what may have occurred when the mother was also staying at “The Getaway”. She also refers both to the plaintiff and the deceased going on bus trips to Kiama and Nelson Bay. She refers to a trip when both she and her sister went to Sydney with the plaintiff and the deceased and gives evidence that they shared one hotel room, "they" meaning her sister and herself and the deceased and the plaintiff shared another room. 22 I have already mentioned that when the occasion came for the plaintiff to go home in April 1998, that she discussed it with her sister, Mrs Pollack. She raised the fact and told her sister she wanted the plaintiff to come and live with her and she said that "He should have been living with me a long time before this". That of course was what thereafter happened. 23 The other twin sister, Mrs Pollack, also gives evidence of the relationship and she placed it at four or five years ago that her sister said to her that she was going to marry the plaintiff and that he produced an engagement catalogue and wanted to pick a ring. She also went to Newcastle on some trips and this apparently was one where it was not with the plaintiff's mother. On that occasion they shared a bedroom in the plaintiff's parent's house. She also of course talked of the use of the room by the plaintiff and the deceased at The Getaway by themselves. 24 Other evidence by the Gascoigne’s also touched on the questions of proposals to marry and Mrs Gascoigne gave evidence of an occasion when she went and comforted the deceased on an occasion when there was a storm and damage was happening to the deceased's house. Some time was spent trying to find the plaintiff so he could come back and assist, which he did. During this occasion, according to Mrs Gascoigne, the deceased confided in her that she wanted to marry Eric and said she first would have to get a divorce. 25 That evidence is fairly important. It is backed up by the evidence of Mr Gascoigne. It is from people who certainly were independent of the parties. 26 The other evidence of course was the evidence of the Bennett's. They were friends and had been since the early 1990s. They formed quite a different view of the relationship. They seemed to regard them more as friends or acquaintances and did not notice the intimacy which others such as the deceased's sisters seemed to notice. They also recorded statements by the deceased about how she didn't need anyone in her life and that she really was a fairly independent woman at that stage in her life. Mr Bennett apparently used to tease her about the plaintiff and according to him when he did so the deceased would react and say that there was no way that the plaintiff "would ever get between her sheets". That of course is quite contrary evidence but it may be that the deceased only discussed the details of her relationship with those she felt she was closest to and wanted to confide in. In coming to the conclusion, which I do, that there was a physical relationship between the plaintiff and the deceased, I do not suggest that the evidence given by the others, particularly the mother, the views of the brother and even what the Bennetts observed, were not given accurately. It is more a matter of what is likely the deceased would have said, to whom and in whom she would have confided. 27 4. The next matter is financial interdependence. In this matter there was very little financial interdependence and in fact one could almost say none. There was no mixing of funds, no common bank accounts or common investments, or matters of that nature. There is only one item, namely the joint use of the keycard for the deceased's account in 1995. That was a matter of personal convenience but indicates however some trust. 28 5. Ownership, use and acquisition of property. There was no property which was jointly owned or acquired. The only property ever used was the deceased’s house in the last seven months. 29 6/7. The deceased and the plaintiff had no children, nor were they in a position where they had to care for children. 30 8. Performance of household duties. Importantly this occurred both before and after April/May 1998. It seems to have been a shared shopping arrangement, although the deceased would repay the plaintiff mostly if he went and did the shopping for her. The plaintiff himself certainly was very active outside the house doing gardening, exercising the dog and matters of that nature. In the last seven months there seems to have been some washing done by a number of different parties, namely the deceased, the plaintiff and the deceased's mother. 31 9. The degree of mutual commitment and mutual support. The first thing to be observed in relation to this is that the evidence does not disclose that the deceased had any other substantial relationship with anyone other than the plaintiff. Certainly she was, as I said, an independent and a mature woman and the relationship obviously also was one which may have developed over the years. I have not gone through in great detail the evidence the plaintiff has given about the level of support which he provided to the deceased. There were many years in which he had to spend a considerable amount of time taking the deceased to Canberra for treatment, visiting her in hospital, supporting her in many ways through the illnesses which she had over those years. It certainly was the fact that he chose to do so. That point was made very clear. It does not mean that he did it all. There were clearly other people and members of the family who from time to time did also support in that way. However, there does seem to have been an overwhelming amount of support by the plaintiff at personal cost and inconvenience to him. He had to take time off work to do it, he was willing and in fact anxious to do it. 32 One of the fundamental things that stands out in this case is the fact that the plaintiff did not seem to think it was appropriate that they should live together while she was still married. The deceased never got a divorce and that of course certainly postponed perhaps any deeper relationship between the plaintiff and the deceased. It certainly was an effective bar to there ever being a later marriage between the plaintiff and the deceased. The evidence also shows that the deceased had said to the plaintiff, according to the plaintiff, that she was going to get a divorce and going to see Mr Gain, her solicitor, about it. The evidence clearly before me is that she did not raise that matter with Mr Gain. In these circumstances, it seems to me, that although the plaintiff was extremely fond of and no doubt in love with the deceased, the deceased was for her own reasons not prepared to go to the extent of reciprocating that love. The reasons do not really appear in the evidence; they could be numerous. It may be that she simply wanted her own independence and so in that sense it may be that although she was considering the idea of marrying, she did not make the ultimate commitment to go that far forward with the plaintiff. In effect, one sees in this case a substantial commitment and support from the plaintiff to the deceased with perhaps not the same level of commitment being reciprocated by the deceased. Things of course perhaps moved further in April/May 1998 and I would accept that the plaintiff had decided she wished to have the plaintiff live with her and namely that is, I think, what happened. 33 One has the other strange thing against the background of this relationship and that is the fact that the plaintiff was not mentioned in the will. The explanation for this, which has been offered by the deceased's sisters, is perhaps somewhat close to the truth. They said that the deceased's life centred around her home and also the plaintiff. They described their own sister as rather self-centred, not having had any children. In lots of ways they said the deceased thought of herself and herself only and she did not tend to think much of other persons' needs and wants. Even they found it hard to accept that nothing was provided for the plaintiff. The fact is of course that she had no children of her own. So perhaps the conclusion of the sisters is not far from the mark. 34 It seems to me that when one looks at it overall there was a substantial degree of mutual commitment and support on the plaintiff's part. There was less on the part of the deceased, except for the last six or seven months of her life. Maybe those circumstances were such that it was necessary to accept the support of the plaintiff by living together. 35 10. Reputation and public aspects of the relationship. There are a number of areas of evidence where it is apparent that the plaintiff and the deceased would go out as a couple. It was not the case they did everything together and certainly the deceased would go out with her own family independently of the plaintiff from time to time. They seemed to receive invitations for functions addressed to them jointly and importantly they seemed to be jointly asked to go to a number of family weddings. This indicates at least an acceptance in the family that they were a couple to the extent that one can use that word. 36 Ultimately one has to form a conclusion as to whether or not there was a defacto relationship. In my view I do not think there is any basis for suggesting that such a relationship existed before April/May 1998. There is no common residence and many of the other indicia such as shared property, were never present. I also think that probably the level of commitment from the deceased before then was not as high as it ultimately became when she made the final step to have the plaintiff come and live with her. In my view I think there was a bona fide defacto relationship from April or May 1998 until the date of death. However in case that matter goes further I think I should deal with the other alternate basis. 37 The other alternate basis on which the plaintiff put the case was that the plaintiff was part of the household and partly dependent upon the deceased. He lived in the household and took an active part in its management. So far as dependency is concerned it is important to note that it only has to be partial. The dependency alleged in this case is that the plaintiff was dependent upon the deceased for accommodation. He paid no rent of course when he was there and shared little of the expenses. The question of dependency has been considered in a number of cases: 38 In Ball v Newey (1988) 13 NSWLR 1989 the Court of Appeal first considered the question of dependency. His Honour Mr Justice Samuels at page 490 said the following:

"His Honour concluded that "dependent" meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of s6(1) the definition of "eligible person", par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. "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) LJKB 49 at 53; 21 BWCC 401 at 408, that in "deciding whether or not there is dependency the factors to be considered are past events and future probabilities.". While it is true that here we are concerned with financial 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."

39   His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could have only received a partial benefit. At page 492 he addressed the argument in these terms:-

"Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of 'needs' in the Liquor Act 1912 as 'reasonable demands or expectations': Toohey v. Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is 'the actual fact of dependence or reliance on the earnings of another for support that is the test': per Gibbs J. as he then was, in Kauri Timber Co (Tas) Pty Ltd v. Reeman (1973) 128 CLR 177 AT 189. 'The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable; and, in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other."

40 In Benny v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The Court rejected a submission that dependency may be based solely on the existence of the relationship without regard to any element of any financial dependence. 41 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the Court once again considered the meaning of dependency. At page 346 the Court had the following to say:-

"I would respectfully disagree with the master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence 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 (1988) 13 NSWLR 489 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 McLelland J said in Re Fulop Deceased 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."

42 In McKenzie v. Baddeley (Court of Appeal unreported 3 December 1991) his Honour Mr. Justice Meagher, although in the minority, further discussed dependency and described it as "financial economic or material dependency not a mere emotional dependency". Importantly in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" rather it suggests “more than minimally” or, perhaps, “significantly”. 43 In William v Legge (Court of Appeal 16 March 1993) the Court in considering a case of a young child needing mothering, pointed out that the absence of financial dependence is not conclusive. 44 As indicated by his Honour Mr Justice Samuels, it is the fact of dependency which is important. The fact that people choose to live in a particular way and might have, if they so ordered their affairs, still be able to provide for their accommodation, does not mean that there is not in fact dependency and in my view there was dependency during the period that the plaintiff was living in the household. It is clear in my view that the plaintiff is an eligible person. 45 On the alternative basis 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. This expression has been dealt 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, s61B), whereas the classes affected by s9(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.'"

46 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 s9(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".

47 These principles have been applied at first instance for many years. In recent times there has been 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. The main judgment was given by Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success. 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. 48 In the present circumstances one has of course the care that was extended to the deceased by the plaintiff. As Priestly J says in Churton v Christian, when the circumstances of their relationship are set out the person would be seen by most observers as natural objects of testamentary recognition. 49 The mere fact of the care was a matter which was recognised by the sisters in their evidence and I am satisfied that the evidence would warrant the making of the application in the present case on the traditional basis. The other basis in the authorities has to be considered and I will consider whether there are reasonable prospects of success on the plaintiff's part. That requires me to return to the substantive part of the case. 50 In the application under the Family Provision Act the High Court 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 consideration. 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."

51 I turn to the plaintiff's circumstances. The plaintiff is a single man, aged 54, with no dependents and apparently is in good health. He is employed as a yard foreman at the abattoirs. His wage varies with overtime but it can be as high as $970 or as low as $500 per week. Clearly he has in his circumstances, which are not spelled out in great detail, the ability to save. He does live in rented accommodation. His assets are not substantial: a car worth some $10,000, he has something slightly in excess of $10,000 in superannuation. However, he does have some debts of $12,800 which he incurred in paying out his car loan and doing repairs to his mother's house. I think it should be put aside the prospects of him receiving some small inheritance from his mother. 52 Obviously of course the relationship between the plaintiff and the deceased is an important matter for consideration and I have set out the details of that in the earlier part of the case. 53 It is also necessary for the court to have regard to the circumstances of any other person having a claim on the bounty of the deceased. 54 In this case the only other person is Linda Maree Hourn, the niece of the deceased. She is some 24 years old and lives in Forest Hill, near Wagga Wagga. She is still single although she has a boy friend who she has known for some four years and they are planning to marry in the future. They have a house which they purchased with another person, which was purchased for $81,000 with a loan of $76,500. Apart from that interest in the house, she had savings of some $10,000 and she wishes to apply that in reduction of the mortgage. She has an old car and now has the use of the car from the deceased. There are no details of her boyfriend's situation, although he appears to be a trainee store person. 55 Importantly the evidence from Linda does not deal in any detail with the extent of the relationship, but one can perhaps see from other things in the case that the reason for her being chosen was that she was a favourite niece of the deceased. There was some suggestion that there was some provisions of small personal items provided by the deceased to her in her lifetime. However that may be, there is no suggestion that Linda played a substantial part in helping the deceased in the same way as the plaintiff. There were some allegations made in the evidence about things being taken from the house of the deceased after the date of death. On the evidence before me I am not satisfied that the plaintiff was involved in these matters. The evidence would need to be real and substantial in order to come to some conclusion about those matters. 56 It is of course only possible for the court to make an order in favour of the plaintiff in these matters if the plaintiff demonstrates that he has been left without adequate and proper provision for his maintenance, education and advancement in life. The case as it was originally framed by the plaintiff suggested that he needed some accommodation and that he would wish to receive the house of the deceased. Costs however have intruded into that claim and there is only some $77,000 left in the estate. There is also in submissions a suggestion that perhaps he may wish to buy a house and perhaps borrow something but it should be recorded that there is no evidence of what would be the cost of a house other than the value of the house, the subject of this estate. There is no evidence of the plaintiff's ability to borrow given his age and earnings. However, there are some other areas of need which are self evident. He has an old car that needs to be replaced, it has done many kilometres; and he has a loan of $12,800 which he has to repay. 57 The sad fact is he is now 55 and although in good health and employment, life may not always be so kind. He has not a substantial number of working years left and basically he has little behind him apart from the debts. So I therefore see that some amount for a provision for him by way of contingency would be appropriate. Therefore there is a need for a legacy in favour of the plaintiff. 58 In these circumstances it is clear on the alternative basis of s9(1) that he has prospects of success and accordingly I am satisfied that the appropriate factors warranted in this case exist. As I have said the estate is modest. It seems to me when one stands back from the case and the fight about whether or not a defacto relationship existed, it makes little difference really whether it was a defacto relationship in the last six or seven months or merely a carer. The nature of the care was the same in each case and one needs to bear in mind that matter because that was one of the dominant matters that concerned the parties in the last stages of the deceased life. Even as a carer it was the plaintiff who at the time he was at home was providing help and company for the deceased. 59 In saying this I am mindful that others, such as the deceased's mother, was extensively involved in caring for the deceased at that stage. In contrast one has a will which provided for the niece and the comparison between the relationship between niece and deceased and the plaintiff and the deceased is enormous. Accordingly it seems to me that given the amount of remaining estate it is appropriate that the plaintiff receive a legacy in the sum of $65,000. 60 The orders I make are:

1. That the plaintiff receive out of the estate of the deceased a legacy in the sum of $65,000.
2. I order that the plaintiff's costs on a party and party basis and the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased.
3. The exhibits can be returned.

Last Modified: 09/26/2000