New South Wales Supreme Court CITATION : Davis & Ors v Hore & Ors [1999] NSWSC 1265 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3888/98 HEARING DATE(S) : 28 October 1999 JUDGMENT DATE : 28 October 1999 Diana Davis (First Plaintiff) Julia Penelope Hore PARTIES : (Second Plaintiff) Adrian Mitchell Hore Wilda Iona Lambie Phillip Adrian Hore (Defendants) JUDGMENT OF : Acting Master Berecry Mr R Cameron (Plaintiffs) COUNSEL : Mr R Colquhoun (Defendants) Hynes & McCormack of Murwillumbah (Plaintiffs) SOLICITORS : Piper & Associates of Tweed Head (Defendants) CATCHWORDS : Separation, property order by Family Court, short marriage, intention of parties to finally end their marital financial commitment ACTS CITED : Family Provision Act 1982 O'Shaughnessy v Mantle (1986-87) 7 NSWLR 142 CASES CITED : Dijkhuijs v Barclay (1988) 13 NSWLR 639 Kristil v Warington (NSWSC unreported, 25 July 1994 Young J) DECISION : See para 17 6 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ACTING MASTER BERECRY THURSDAY 28 OCTOBER 1999 3888/98 - DIANA DAVIS & ORS v ADRIAN MITCHELL HORE & ORS JUDGMENT 1 ACTING MASTER: This is an application by the widow of the deceased and his daughter of the marriage to the widow. The application is brought under s 7 of the Family Provisions Act 1982. Both the widow and the child are eligible persons pursuant to s 6 of the act. Both plaintiffs fall within the strongest category of eligible persons. Under the terms of the deceased's will he left his two children Julia, the second plaintiff in these proceedings, and Jack, the plaintiff in other proceedings, eighteen fortieths of his estate. The net estate today is $405,000. Therefore, Julia and Jack receive approximately $91,000 each, if there was no alteration made by me to the deceased's will. 2 The deceased also made provision for Robyn Lewis, his then defacto, his sister and step sister, his mother and father and his brother Phillip. With the exception of Robyn Lewis none of the other beneficiaries are eligible persons within the meaning of s 6. 3 The application today, as I understand it, is primarily concerned with the first plaintiff, that is, the widow of the deceased. She seeks that provision be made out of his estate to enable her to be placed in a position where any financial burden that she currently has is eased. She looks at two areas for relief. One relates to the expenses concerning Julia and the other relates to the mortgage that she has in respect of her home. Set out in her affidavit which is wrongly dated 27 March 1999, it is conceded that the date is 27 September 1999, are details of her income, her expenses, her assets and liabilities. 4 In paragraph 3 she sets out her average weekly expenses. They come to $695. Out of that sum she makes provision for Julia in the sum of $131. Also included is $120 for income tax. Paragraph two, subparagraph (a) refers to her average weekly wage and at that time it was given at $600 and I am informed that that is her net wage. Therefore, from her expenses must be taken $120 for income tax purposes. That figure of $600 on the evidence today is no longer the exact figure that she receives. 5 Currently her wage per fortnight varies between $700 and $1200. It depends on the shift she works and the nature of the work that she performs. The evidence is by way of example. If she does weekend shifts generally she would receive $30 per day more than she would receive for the equivalent shift Monday to Friday. When those figures are adjusted it gives the plaintiff on average, although I accept that it is subject to a fluctuation, a surplus in good weeks of perhaps $154. 6 Her assets are set out in paragraph four of that affidavit. The major asset is her home, the value given is $140,000. Her total assets are just over $151,000. Her liabilities are just over $79,000. Of that sum the mortgage on the home amounts to just under $73,500. She has also listed some contingent liabilities. Paragraph 7 sets out her superannuation entitlements and paragraph 8 sets out long service and annual leave. 7 The first plaintiff and the deceased were married in 1988. The marriage was not a long marriage. By March of 1995 they had separated and between that date and when the deceased died there had been applications in the Family Court, applications relating to the custody of Julia and a property application. The evidence before me is that the Family Court made orders in relation to the matrimonial property. The first plaintiff received 75 percent of the net proceeds of the sale of the property, the deceased received 25 percent. 8 Although the marriage has not been dissolved the plaintiff's evidence today was that on the making of that order by the Family Court that she regarded their financial commitment to one another at an end, their lives were going in different directions. She still, however, expected an input by the deceased so far as Julia was concerned and I take it that that meant an input not only emotionally but also financially. The evidence is that he was paying maintenance of approximately $70 a fortnight for Julia. 9 There have been a number of decisions of this court which have dealt with the position of former wives and their right to make a claim on an estate. This case is different to the extent that the plaintiff is not a former wife although there has been a property adjustment between the parties. There has been no dissolution of the marriage. On the evidence, however, it seems fairly clear that the intention of the parties was that upon that property settlement they would go their own ways. Other than for Julia there would be no call financially on each other. 10 In O'Shaughnessy v Mantle (1986-87) 7 NSWLR at 142 Young J made the comment that generally speaking the fact that there has been a clean break between the parties after Family Court proceedings, that there was no obligation of one towards the other and in the absence of special factors usually the court would not be satisfied that there were factors justifying the making of an application under s 7. In two other decisions, one of the Court of Appeal, one judge expressed a similar view, that was the President in a matter of Dijkhuijs v Barclay (1988) 13 NSWLR 639 and then more recently in another decision by Young J which is unreported in Kristil v Warnington (NSWSC unreported, 25 July 1994 Young J). 11 The first plaintiff has received a property settlement in relation to her marriage with the deceased. The property settlement provided that she receive 75 percent of the home that they had at the time. She has gone her separate way. She is living in a home that she owns subject to a mortgage. She is relatively young. She has a profession which, it would appear, her peers hold her in high regard. She has held responsible positions from a young age. She is a double certificate nurse. She has the capacity to continue earning a reasonable income and she has assets that are growing. She is currently in a position where she is able to accelerate her mortgage repayments. 12 In the circumstances I do not think that it is appropriate that I make any adjustment to the deceased's will in respect of the first plaintiff. So far as the second plaintiff is concerned there are expenses that are being incurred that go to her maintenance and education. Mr Cameron has made reference to low rates of interest and that at the end of the day by the time Julia is an adult there may be very little left for her to advance her through life. 13 The child care expenses that the first plaintiff incurs, I think, could only be regarded as legitimate expenses. Evidence has been given that there are occasions when a friend assists her with that child care and that he receives no money. Her evidence is that she needs somebody to be at her home looking after Julia when she is on either night shift or the weekend. Currently it costs her $25 a day. Those occasions can arise between two and five times a week. Julia is currently nine. Mr Cameron has submitted that it would be appropriate for such provision to be made for Julia until she attains the age of 15. That does not seem to be unreasonable to me. 14 Child care expenses fall within the category of maintenance and education, they are legitimate expenses. Currently the provision that is made for her by her father would be sufficient to leave a sum of money still available to Julia once she leaves school. However, depending how that is invested it may well be a small amount. It is not for me to speculate on what Julia is likely to do with her life. The first plaintiff's evidence today was that Julia is a good student. It is therefore open to draw the inference that Julia, upon completing her schooling, will go on to higher education, either Tafe or university. There should be provision for Julia to do that. 15 In the current climate if Julia were to go to university she would be subject to HECS. She may not be able to afford to go to university should the legacy that her Dad has provided for her be whittled away in the meantime by meeting her maintenance and education costs over the next nine years. It may be that the money that has been left to Julia as a legacy needs to be invested wisely and it may be the public trustee should be appointed but, nevertheless, I think that in all the circumstances there should be additional provision made for Julia to cover the item that I have already mentioned. 16 In my view an additional provision by way of a legacy in the sum of $31,000 should be provided to Julia. That still leaves the question of the trustee and I will return to that shortly. The orders that I make for the moment are that in addition to the legacy provided for the second plaintiff under the will of the deceased there be paid by way of an additional legacy the sum of $31,000. The second plaintiff's costs will be paid out of the estate on an indemnity bases. 17 As against the first plaintiff the summons be dismissed. The first plaintiff pay the defendant's costs of her proceedings. The defendant's costs in relation to the proceedings by the second plaintiff be paid out of the estate on an indemnity basis. Any adjustments made to the estate are not to impact on Jack's legacy. ********** Last Modified: 06/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.