Byrne v Byrne [2000] NSWCA 168

New South Wales Court of Appeal

CITATION : Byrne v Byrne [2000] NSWCA 168 FILE NUMBER(S) : CA 40912/99 HEARING DATE(S) : 30 June 2000 JUDGMENT DATE : 30 June 2000

PARTIES : Doreen Clementine Byrne (Appellant) Mavis Eileen Byrne (Respondent) JUDGMENT OF : Meagher JA at 1, 86, 93; Handley JA at 87; Heydon JA at 2

LOWER COURT JURISDICTION : District Court LOWER COURT DC 2008/99 FILE NUMBER(S) : LOWER COURT Naughton DCJ JUDICIAL OFFICER :

COUNSEL : P R Garling SC/S L Bell (Appellant) J H H Blackman (Respondent) SOLICITORS : McKenzie Cox (Appellant) Budd & Piper (Respondent)

LEGISLATION CITED : Family Provision Act 1982 Wills, Probate and Administration Act 1898 CASES CITED: Singer v Berghouse (1994) 181 CLR 201 DECISION : Appeal dismissed; appellant to pay the respondent's costs of the appeal

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40912/99 DC 2008/99

MEAGHER JA HANDLEY JA HEYDON JA

Friday, 30 June 2000

BYRNE v BYRNE

JUDGMENT

1 MEAGHER JA: I ask Heydon JA to give the first judgment. 2 HEYDON JA: Background This is an appeal from orders made by Naughton DCJ on 1 November 1999, after a trial conducted on 27-29 October 1999, that the plaintiff respondent, Mavis Eileen Byrne (whom I will call the de jure wife), should receive a legacy of $125,000 free of costs and expenses related to the litigation about and administration of her deceased husband's estate, and that interest should run on any outstanding part of that legacy from 1 March 2000 at the rate of 9.5 per cent per annum. 3 The deceased died on 25 March 1998 at the age of 83. The will was dated 9 December 1991. It appointed as executors the four appellants. The first appellant had for all or most of the period since 1949 been the de facto wife of the deceased. The will gave all the deceased's property, worth $230,812, to the de facto wife. The effect of the trial judge's orders is to leave her with about $56,000-$61,000. She has at least $220,000 worth of other assets, being her half share in the property in which she and the deceased lived for a large number of years. 4 At the commencement of the oral argument, counsel for the appellant, Mr P R Garling SC (with whom Mr S L Bell appeared), was asked in effect whether there was any position intermediate between complete dismissal of the application and the trial judge's order. His answer was in the negative and was that the appeal should be allowed and the application dismissed completely because any intermediate position would involve the sale of the property and the removal from it of the de facto wife. 5 The deceased was born on 23 April 1914. The de jure wife was born on 6 January 1922, and was thus nearly 78 at the time of the trial. The de facto wife was born on 16 August 1930, and was thus 69 at the time of the trial. 6 On 19 April 1938 the deceased married the de jure wife when she was 16. The couple had four children who survived birth, born on 4 July 1938, 25 September 1939, 8 March 1944 and 9 July 1946 respectively. 7 In September 1949 the deceased commenced a de facto relationship with the de facto wife when he was 35 and she was 19. The children of the deceased and the de jure wife were then aged 11, 10, 5 and 3. Thereafter the deceased did not live with the de jure wife for long periods until an interval of reunion in 1955. After that reunion, the deceased lived with the de facto wife until his death. They had five children who survived birth, born on 31 January 1954, 13 August 1958, 22 November 1962, 14 January 1969 and 31 July 1970 respectively. 8 There were a large number of findings of fact of the trial judge which were not challenged by the de facto wife: "The plaintiff did not remarry nor did she form a relationship with any other man. From 1949 when the testator began living with the first defendant regularly the plaintiff brought up the four children of her marriage to the testator by herself. That was a considerable struggle for her. Three of the four children left school at age 15 and went to work. The other one left school at age 16 and went to work. ... The testator's estate was worth $230,812 at the date of death. It comprised mainly a one half interest as tenant in common with the first defendant in a grazing property at Rosebank. That is about 25 kilometres north-east of Lismore and about the same distance west of Byron Bay. The property has an area of 64.71 hectares (160 acres). It is located in a scenic sought after area. The dwelling on the property would appear to be in good condition. It is located on one of the higher parts of the land, having outstanding views to the east, south and west. The first defendant lives alone on the property which is called "Twin [Springs]". ... I have ... assumed that the value of the testator's one half interest in the property at date of death was, and is currently, $220,000. ... … [The] other assets in the estate at date of death were jointly owned farm equipment worth $10,000 and a joint bank account with a credit of $812.51. ... The plaintiff lives alone in a run-down cottage at Redwood Park, South Australia. That is about 15 to 20 kilometres north of Adelaide at the foot of the Adelaide hills. She is in poor health. She recently had an operation to remove a cancer from one of her legs. She regularly attends the doctor. Two of her children live in New South Wales, one on the central coast and one near the Queensland border. She has a number of grandchildren. She enjoys seeing her children and grandchildren. She has not had a holiday since some time in the 1980's, when she went to England. ... I find that the plaintiff has had a hard life... She worked hard to bring up her children alone from 1949 when the testator formed his de facto relationship with the first defendant. The testator worked as a travelling drover, handyman, and farm hand from prior to 1949 when he abandoned the plaintiff and her children for a younger woman, the first defendant. Only after the plaintiff obtained a court maintenance order against him in 1956 did the testator make regular payments to the plaintiff. These were in an amount of $80 a month for herself and $10 a month for each of the children. The testator continued making payments of $100 a month to the plaintiff until 1973. There was an issue as to whether he continued such payments from then until mid-1986. I find that he did. From mid-1986 the testator made no payments to or on behalf of the plaintiff or her children. From time to time after the testator left the plaintiff permanently in 1955 they met again by mutual arrangement. In 1988 at the plaintiff's instigation, they met together at a country motel for a humble and sad 50th wedding anniversary. Both of them cried. The testator admitted to the plaintiff that he had done the wrong thing by her and the children. She saw him only very occasionally thereafter. On various occasions the plaintiff tried, without success, to persuade the testator to go back to her. At no time did she try to divorce him. There was evidence that on several accessions she refused the testator's request to consent to a divorce. The plaintiff did not own a home until 1961. In that year the father of the husband of her sister Dulcie died and left her a humble cottage in Broken Hill. ... In late 1966, after the marriage in Broken Hill of her daughter Jeanette, the plaintiff sold her Broken Hill cottage. She was able with the proceeds, and income from working, to buy another humble cottage for herself in South Australia to where she then moved. Although copy title deeds suggest that from 1966 to 1975 she owned two properties at the same time I find that in substance that was not so. I accept the plaintiff's evidence that although her transfer of the Broken Hill cottage was not registered until 2 April 1975 she had in fact sold it in late 1966 when she left Broken Hill and moved to the cottage which she bought that year in South Australia. The plaintiff's only present income is a pension. That provides her with $180 a week. She has been a pensioner since 1976. The cottage she is living in now needs $55,000 worth of repairs and renovations. Its present value is about $70,000. The plaintiff's car is about 20 years old. She finds it difficult to drive because it does not have power steering. She needs the car to go to the doctor, do her shopping and visit friends and her South Australian children and grandchildren. The plaintiff has about $1,300 in the bank. Her only other assets are furniture and clothing. Her home appliances (refrigerator, stove, washing machine, vacuum cleaner, et cetera) all need replacement. The plaintiff enjoys having her children and grandchildren come to stay and would like to be able to visit them more. She would like to have a holiday. She is worried about her future medical and hospital expenses because she is unable to afford private health insurance. I find that life has been a constant struggle for her for many years. I find that the plaintiff needs more than $180 a week (current pension entitlement) to live on. Her statistical life expectancy is another eight years. I find that she needs another $40 a week to live on so as to afford her a standard of living which is her proper due in all of the circumstances. That amount for eight years discounted at 3 per cent for present value amounts to $14,880, say $15,000."