NEWNHAM v TARBERT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and CLARKE JJA 21 September 1990, 21 September 1990 [1990] NSWCA 138 Family Provision Act 1982 Appeal from Master — Family Provision Act 1982 — Order that de facto wife have $150,000 to purchase a home unit for herself — Effect of habits of deceased and applicant as to alcohol, standard of living and cleanliness upon duty of deceased to provide for applicant — appeal dismissed with costs. Appeal dismissed with costs. Mahoney JA David Stephen Dunn died on 16 June 1381 aged approximately 63 years. He was a widower. His assets available for the purposes of the present application were found by the learned Master to be in excess of $650,000 at the relevant date. The deceased left as his family three children: Mrs Spooner - Pauline Patricia Spooner, Mrs Winterbine - Christine Barbara and Mr Dunn - Stephen David Dunn. They are all adults and well settled in their own lives. The effect of the will of the deceased was stated by the learned Master as being that, after providing for a number of legacies, a legacy of $10,000 was left to, as I shall describe i her, the plaintiff Mrs Tarbert on a condition, namely that she was to vacate Flat 2, 4 Frenchman's Road, Randwick. The will left other legacies of $10,000 each to the children, whom I shall describe briefly as Pauline and Stephen, and the remainder of the estate was left to the daughter, whom I shall describe briefly as Christine. Applications were made under the Family Provision Act by Stephen and Pauline in proceeding number 5339/86 and by the present applicant, Mrs Tarbert, in proceeding number 4257/87. The proceedings were heard by Master McLaughlin on 19 and 20 April and on 1 May 1989 the Master made orders in the following terms: "The orders I make in matter no 5339 of 1986 are: (1) I order that, in lieu of the provision made for him by the will of the late David Stephen Dunn, the deceased, the plaintiff Stephen David Dunn receive a legacy of $60,000, the amount of $50,000 being part of that legacy not to carry interest if paid within twenty-eight days of this day; (2) I order that, in lieu of the provisions made for her by the will of the deceased, the plaintiff, Pauline Patricia Spooner, receive a legacy of $60,000, the amount of $50,000 being part of that legacy not to carry interest is paid within twenty-eight days of this day; (3) I order that the costs of each plaintiff on the common fund basis and the costs of the defendant on the trustee basis be paid out of the estate of the deceased. IT also order that the exhibits may be returned. In matter no 4257 of 1987, I order that, in addition to the benefit which she receives under the will of the late David Stephen Dunn, the deceased, the plaintiff receive a further legacy of $150,000, such legacy not to bear interest if paid within twenty-eight days of this day. 2 UNREPORTED JUDGMENTS I order that the costs of the plaintiff on the common fund basis and the costs of the defendant on the trustee basis be paid out of the estate of the deceased. I reserve liberty to apply in proceedings 4257 of 1987." The appellant executor, Mr Newnham, has appealed to this Court against the order in favour of Mrs Tarbert. The submissions which have been made on behalf of the appellant ranged over a wide area but, without attempting to cover the detail of all of them, I think they can be collected under two headings. Mr Grieve QC for the appellant submitted essentially that there was no case made out for the making of any order and, second, that if a case was made out, the form of the order was incorrect and should be amended. As to the first of these, two main points were made: first, that the deceased did not owe any duty to the applicant Mrs Tarbert and she did not fall within the terms of the legislation; and second, and connected with that, that her own conduct had disentitled her to an order under the legislation. It will be seen from the grounds taken that Mr Grieve cast his submissions in substantial and wide terms. I shall consider the first matter, namely, whether a case had been made out under the legislation. Mr Grieve's main submission was that no case had been made out under the legislation because effectively the applicant, Mrs Tarbert, had not made any substantial "contribution" within the terms of the Act to the "property of the deceased person". On the contrary, it was put her conduct had been such as to depreciate the deceased's property. The case, as put forward on behalf of Mrs Tarbert, was essentially that she had lived with him as his de facto wife since about January 1979. There was dispute as to the time when their relationship commenced but the learned Master found that it was about that time. She said that from that time onwards she had lived with him as his de facto wife and in circumstances which created, to use the language used in the context of previous legislation, the appropriate moral duty upon the deceased to make provision for her. In her affidavit setting forth the circumstances in which she came to live with the deceased and did what she did for him she described the matter in the following terms: "15. Between August 1974 when we first met and January 1979 the deceased courted me and we went out regularly each week. On a number of occasions he asked me to live with him and I finally consented. I moved into the deceased's flat, 2/4 Frenchmans Road, Randwick on 3 January 1979. The deceased and I lived together as man and wife from that date until late August 1984. 16. When I moved into the deceased's flat in January 1979 there was also living in the flat another lady, Lorna Thompson. I understand that Lorna had lived with the deceased for a number of years previously. Lorna slept in the second bedroom of the flat. The deceased and I slept in his bedroom. Lorna stayed for about one year before moving out. During this period, I say that the deceased and I lived as man and wife. 17. In late August 1984 the deceased and I 'separated' when I left his flat and rented accommodation in Coogee. The deceased was, at times, hard to live with. He was sometimes very demanding and became increasingly incontinent. Approximately three weeks after we separated I obtained a job as a housekeeper with Sadie Craig, Coogee. I stayed as a housekeeper with Sadie for approximately one year though during this period I usually returned to stay with the deceased in his flat on most weekends. I usually went to the deceased's flat on either a Friday evening or Saturday morning and invariably stayed until the URJ NEWNHAM v TARBERT (Mahoney JA) 3 following Monday morning. I say that on these occasions I returned to look after the deceased. By this I mean I attended to most of his washing and cooked for him and cleaned the flat. His daughter, Christine Winterbyne, helped out with him during the week and sometimes on a weekend by attending to his washing and cooking. I returned to live with the deceased permanently in early August 1985 and we continued to live as man and wife together until the date of his death. 18. While living with the deceased I undertook various tasks within the household. I undertook most of the cooking, the washing and the ironing and general cleaning of the apartment. We usually went shopping together. The deceased was, at times, incontinent. He was often unsuccessful in getting to the toilet on time and I always cleaned up if he urinated on the floor. He also had a problem with his bowels though that problem was not quite as severe as the problem with his urinary system. 19. The deceased liked to socialise and we often went to the local hotel, the Labour Club in Randwick or the Coogee Sports Club. On Christmas, New Year and Easter we invariably held barbeques out the back of the flats and also on the occasional Saturday or Sunday." The evidence produced against her consisted of affidavit and other evidence to indicate that what she had said was not accurate or that there were other matters to be taken into account in assessing what she did. The learned Master's findings were set forth at length in his judgment. Having regard to the submissions that were made, I think it is appropriate that I incorporate in my judgment the findings of fact which the learned Master made. The Master set forth his findings essentially in the following terms: "As I have already observed, there is no dispute about the status of the plaintiff as the de facto spouse of the deceased although the defendant suggests that this state arose somewhat later in about 1981. However, in the instant case, I am prepared to accept that the de facto relationship commenced no later than 3 January 1979 when the plaintiff moved into 4 Frenchmans Road, and I consider it probable that the relationship commenced somewhat earlier, at about the time when the deceased starting paying the rent of the plaintiff at The Claridge in late 1977. Throughout the period of their relationship, the deceased paid all the household outgoings, the plaintiff not having any income or assets of her own whilst she was residing at 4 Frenchmans Road. A considerable quantity of evidence has been given by various witnesses throughout the hearing of this matter, and eight witnesses have been cross-examined on their affidavits. Essentially, this evidence has been concerning the conduct of the plaintiff whilst she was residing with the deceased. This evidence, which has been mainly of an anecdotal nature, has been directed to establishing on the part of the estate that the conduct of the plaintiff, especially in relation to the deceased, was such that either the deceased did not owe her any moral duty to make provision for her by his will or to make greater provision for her than that which he did, in fact, make by his will; or, in the event that there was such a moral duty, that the plaintiff has been guilty of conduct disentitling her to the benefit of any order to the benefit whereof she might otherwise have been considered to have established an entitlement. I shall refer again to these matters of moral duty and disentitlement. 4 UNREPORTED JUDGMENTS The evidence to which I have just adverted concerning the conduct of the plaintiff related to such matters as shortcomings in her housekeeping ability, especially in the culinary department, her inability to manage her own finances and her drinking habits. A picture of the deceased during the period of his relationship with the plaintiff clearly emerges from the evidence. It is that the deceased was a grossly overweight man, weighing between twenty and twenty-two stone, untidy and unkempt, slovenly in appearance and dirty in his personal habits and personal hygiene, who rarely wore shoes or clean clothes and who drank to excess - who could probably be accurately described as an alcoholic. He was frequently incontinent of his bladder and occasionally of his bowels. Furthermore, his own children and the neighbours and acquaintances who gave evidence in this regard all described him as being a strong-willed man who wanted his own way. In October 1983, the plaintiff suffered an injury to her hip. In consequence thereof, she was less able to cope with the housework and cooking in the flat. The deceased, she says, was at times hard to live with, sometimes very demanding and became increasingly incontinent. Accordingly, in late 1984, the plaintiff left the Frenchmans Road flat and took a live-in position as companion-housekeeper to a Miss Craig at Coogee. In that position, she had her own bedroom and bathroom and received her full board and $50 per week. The plaintiff took that position under an assumed name, Hilary Crofters, since, she said, that she did not want the deceased to be able to contact her. Nevertheless, after several months he did, in fact, contact her and requested her to return to him. This the plaintiff did in early August 1985, and the situation between them continued as before. However, in 1985 the deceased spent some time in the Prince of Wales Hospital suffering from Korsakoff's Psychosis. Upon a previous admission to hospital in 1983 it was suggested in the medical records that the deceased had been suffering from malnutrition. During the period whilst the deceased was in hospital, the plaintiff says that she had the responsibility for managing his taxi business. This statement is, however, disputed by the defendant." The Master then in his judgment referred to the circumstances of the relationship between the parties as he found them to be and he said: "The plaintiff, by her services, contributed to the welfare of the deceased, especially by her services as a homemaker. In so doing, she may not have been an adequate or competent homemaker in the eyes of some members of the community including some of the witnesses who testified for the defendant or according to some social standards, but I have no doubt upon the evidence that she was a homemaker of the kind which the deceased wanted. One fact stands out very clearly in this case. That is, whatever were the shortcomings either domestic or moral of the plaintiff the deceased requested her to reside with him, and when she left, sought her out and prevailed upon her to return. Their relationship and the conduct of the plaintiff towards the deceased were of a nature with which the deceased in general terms was clearly satisfied." In order to understand the nature of the submissions made in the judgment of the Master it is, I think, of some assistance to develop a little further and in summary form some of the evidentiary matters that were urged on one side or the other. It is clear from the evidence and from the findings of the Master upon it that attacks were made upon Mrs Tarbert and assertions were made by her in her URJ NEWNHAM v TARBERT (Mahoney JA) 5 own favour in relation essentially or mainly to three things: her drinking with and without the deceased, her housekeeping and her care of the deceased. It is clear from the evidence that, as the Master found and as he referred to in his judgment, the deceased was a heavy drinker if not a chronic alcoholic. The circumstances of his life were described by him. It is clear also that Mrs Tarbert herself indulged in the use of alcohol to a considerable degree. She said in the course of her evidence in cross-examination that she herself had used alcohol since the time she was very young, approximately 21 years, and she described in some detail what she had done in this regard. She was cross-examined, I think, to some effect in this regard and the answers that she gave had to be assessed by the Master in order for him to ascertain what she had done or not done and the lifestyle that had existed between her and the deceased. I shall not lengthen this judgment by setting forth the cross-examination of her which appears in the appeal papers, particularly at p 134 and the following pages, but she was quite frank in stating that she herself indulged in alcohol; she described it in terms of "binges" on one occasion at least. She said that she drank with the deceased. She said that it was "a very unconventional relationship, we both liked to drink." In relation to her own activities she said that sometimes she would go on a binge for a fortnight and then knock off for about three weeks and then it might go on depending on who was in the company. She "drank with drinkers" and if they did not drink she did not drink; and there were times when he or she stopped drinking completely. It is necessary, I think, to understand the habits of both of the parties in this regard in order to understand the extent of the housekeeping and care which she undertook for him. She gave evidence as to what she did. I have referred to the evidence in her affidavit and it is not necessary to repeat the substance of that. She was cross-examined by Mr Wheelhouse at the trial at some length in relation to these matters. Again, I shall not set forth the material which appears but some of it appears in the passages in cross-examination to which I have already referred. She referred to the deceased's habits, to his unkempt appearance, to the fact that he was in the ordinary sense perhaps not clean and might well be described as dirty and to the various things that happened between them in this regard. Yet, on the other hand, she was the person in the house who did the cooking and the cleaning if and insofar as that was done. It was also put that it was her function to assist in the nourishing of the deceased and, if I may so describe it, the weaning of him off his alcohol habits. It was put by Mr Grieve to this Court that if and insofar as she did not seek to do this or did not succeed in doing so, it could not be said that she had in the real sense cared for the deceased or contributed to his estate in the sense used in the statute. There is some force in the submissions which have been made in this regard but in the end the context in which she and the deceased lived must be borne in mind in assessing what she did and what she did not do. I have referred to their drinking and to the housekeeping situation between them. One may accept that the sanitary arrangements may not have been, to adapt the Master's language, what would have perhaps appeared appropriate to the deceased's children but she remained with the deceased and gave to him such care as she was able to in circumstances which, to an ordinary person, must have been very difficult and no doubt to her would not have been ideal. 6 UNREPORTED JUDGMENTS In these circumstances the learned Master reached the conclusion to which I have already referred, namely that the deceased had, because of what she had done, owed to her the kind of moral duty which has been seen in the past to be relevant in relation to the making or orders of this kind. I do not differ from what the Master found. I would adopt the substance of his conclusion as mine. I think that in the circumstances which existed she, as his de facto wife, did what, in the level of living which they had adopted, was enough to give rise to the kind of obligation which I think should be established in order that provision for her should be made out of his estate. To the extent of the obligation that should have been made, I shall refer subsequently. It was put that the conduct of the applicant, Mrs Tarbert, whatever it may have been, was not such as - and the emphasis was placed upon these words - to contribute to the property of the deceased. These words are drawn from the Family Provision Act 1982, s9. But I do not think that this is the matter upon which alone the Court is to focus in an application of this kind. I do not think that this is the matter upon which the Master focused or focused solely. I think in his general approach to the matter he was correct. In the end, I think that, by what she did in her relationship with him, she acquired the right to have him take appropriate account of her circumstances at the date of his death in the will. In these circumstances I come to consider the second matter to which submissions were addressed, namely quantum and the form of the order. The applicant, Mrs Tarbert, was 53 years of age at the time the Master made his order. She was unemployed, and I think essentially unemployable. Her only income was an unemployment benefit amounting then to $126.10 per week. From this she paid $90 per week for her board. do not think that there was any great extravagance in that outlay. She has no assets and the Master was satisfied that her total property consisted of the unemployment benefit to which I have referred. In these circumstances it is necessary to consider what provision a testator, giving appropriate regard to the position of Mrs Tarbert, her claims upon him, and the claims of other persons, would and should have made in her favour. He made a provision for her by way of the small legacy to which I have referred but it must have been obvious to him, or at least it should have been obvious to him at the date of death, that she would require accommodation and that it would be necessary to secure to her accommodation for the period of the rest of her life. A testator, considering the matters to which I have referred, would in my opinion have seen this as being the overwhelming requirement of a person in her position. The deceased was in a position in which he could satisfy at least to the relevant extent his obligation to her in this regard. It is not necessary to attempt a long process of balancing the claims of the deceased's children on the one hand and the claims of Mrs Tarbert on the other hand. It is sufficient to say that, whilst some or all of the applicants in the present litigation, being the children of the deceased, have needs of their own and the making of an order in favour of Mrs Tarbert is not to deny those needs, there was sufficient in the estate to meet the obligation to provide accommodation for Mrs Tarbert of an appropriate and modest kind. She sought a two-bedroom unit but the Master felt it appropriate to provide a one-bedroom unit and provision was made in the order for $150,000 for this purpose. The attack that primarily was made by Mr Grieve upon the form of the order was that because, as it was put, of her improvident character, an award of a legacy of $150,000 was not an appropriate award. It was put that the order which should have been made should be to the effect that the executor should provide out of URJ NEWNHAM v TARBERT (Samuels JA) 7 the estate a sum of $150,000 or less, to be used in the purchase of a home unit selected by her for her use during her life as set forth in the notice of appeal. After her death the proceeds of the sale of the unit were to pass in accordance with the will of the deceased. In effect, the suggestion was that the applicant, Mrs Tarbert, should have a life interest in the property or a right to reside in it for her life in the terms to which I have referred. Ido not think that it has been shown that such an order was necessary because of, as it has been described, her improvident nature. It may be accepted that she to some extent was in the past addicted to drink. Whether she was addicted to drink at the time the Master made the order and whether that would be such as to disqualify her from using the moneys appropriately does not appear to have been put to her in cross-examination. In the circumstances I would not be satisfied that the form of order that was made was inappropriate. I think that in the circumstances she was entitled in the fulfilment of the duty owed to her to have the security of a unit of the appropriate kind in which she could live and which she could, if necessary, mortgage or otherwise use so as to provide living accommodation, expenses and the like. In my opinion, the order made was the order appropriate for the purposes. In the circumstances, therefore, I would not interfere with the quantum or the form of the order. The order which I would therefore propose would be that the appeal be dismissed. The Court has not heard counsel upon the question of costs. Ordinarily the order for costs would be, I think, that the appeal be dismissed with costs and that the respondent have an order for payment of the costs on the common fund basis out of the estate. However, in my opinion, counsel should be invited to make submissions as to the appropriate form of order in this regard. Samuels JA I agree. The deceased and respondent appear to have lived together in a degree of disorganisation or indeed of squalor, distinguished by regular infusions of alcohol, which both of them found entirely congenial. The respondent provided the deceased with companionship and some degree of domestic economy which otherwise he might have found difficult to obtain, since his physical condition was generally distasteful and his temperament aggressive and overbearing. I do not agree that conduct, in order to satisfy the formula concerning contribution to the welfare of the deceased person within s9(3)(a)(ii) of the Family Provision Act, must conform to some external objective criterion of virtue and moral improvement. If that was so then the Act would disentitle, for example, a female spouse who was a happy sloven with the most rudimentary notions of housekeeping and who encouraged her companion to join her in slaking an appetite for alcohol and cholesterol-rich foods, but whose wit, courage and affection illuminated his life. It seems to me quite possible in the present case that the deceased and the respondent were quite happy together and, as the learned Acting Master pointed out, when she did leave him for a time he went after her and persuaded her to return. However, although I am inclined to think that on this evidence, if I had had to make the original decision, I would have come to the same conclusion as the Acting Master did, our duty here is only to determine whether his exercise of discretion miscarried because of his failure to observe proper principle or heed other well known requirements. 8 UNREPORTED JUDGMENTS I am not at all satisfied that the judgment reveals any error which entitles us to intervene. Hence I agree with the orders which have been proposed. Clarke JA I also agree with the judgment of Mahoney JA. The orders of the Court are the appeal is dismissed with costs. The respondent's costs are to be paid on the common fund basis. Counsel for Appellant: DE Grieve QC with JS Wheelhouse 10 = Solicitors for Appellant: Fred A and John F Newnham Counsel for Respondent: P Hallen Solicitors for Respondent: Gilson Patch and Richardson