New South Wales Supreme Court CITATION : ROBSON v McGRATH [1999] NSWSC 1104 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 4998/98 HEARING DATE(S) : 25 and 26 October 1999 JUDGMENT DATE : 26 October 1999 PARTIES : DENNIS JOHN ROBSON v DARLENE JOY McGRATH JUDGMENT OF : Master Macready at 1 COUNSEL : Miss M. Bridger for plaintiff Miss Y. Holt for defendant SOLICITORS : Bilbie Dan Hickey, Newcastle for plaintiff Corrs Chambers Westgarth, Queensland, for defendant CATCHWORDS : Family Provision. Application under Family Provision Act by a daughter who had been abandoned by deceased as a young child. No matter of principle. Order made in favour of the plaintiff. CASES CITED : Singer v Berghouse (1994) 181 CLR 201 DECISION : Paragraph 31 - 1- THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER MACREADY TUESDAY 26 OCTOBER 1999 4998/98 - DENNIS JOHN ROBSON & 1 OR v DARLENE JOY McGRATH - ESTATE OF BEVERLEY ELAINE BOARD JUDGMENT 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the deceased late Elaine Board, who died on 31 July 1997. The deceased was survived by two children of her first marriage, who are the plaintiffs in the action, and her two children of a relationship with a Mr Billet, one of whom is the defendant. 2 The deceased's first and second husbands survived the deceased. However, Mr Billet, the father of Janine Charrington and Darlene McGrath, has died. At the commencement of this hearing the plaintiff Mr Dennis Robson withdrew his application for relief and the plaintiff Lynn Potter has proceeded. 3 There has been given before me evidence of a solicitors' discussion with Mr Frank Robson as to whether or not he wished to bring proceedings. Apparently he has decided not to, notwithstanding the fact that he is an eligible person. In these circumstances the court can disregard any possible claim by him. 4 A Mr Board was the deceased's second husband. The marriage to him was a short one of a year; they were married in 1964 and divorced in 1995. Although he has not been notified I have heard evidence that Mr Board had a property settlement in which they shared equally between them the matrimonial assets at that stage. Given there has been this property settlement, and the lack of contact thereafter, it would seem that the prospect of him having any substantial claim or any claim indeed is so remote that the court can disregard his interest. 5 There is reference in the will of the deceased to children of Mr Lance Murphy, with whom the deceased had a relationship up until 1991. The evidence before me indicates that those children were not part of the household comprising the deceased and Mr Murphy. Accordingly, they would not be eligible persons. 6 The deceased's last will was made on 24 April 1992. This was obviously made shortly after a dispute with the plaintiff Mrs Potter. Under that will the deceased left the whole of her estate to her two daughters Darlene McGrath and Janine Billet, as she was then known. In clause 5 the deceased provided as follows: I HAVE MADE NO provision for my son DENNIS ROBSON and LYNN MAREE POTTER or my stepchildren being issue of my late husband LANCE DESMOND MURPHY , DESMOND MURPHY and his daughter LISA MAREE MURPHY as I am satisfied that all of these persons are able to maintain themselves in life, according to their requirements; they are not dependant upon me nor were they dependant upon their late father for their support nor do they contribute to any of the assets comprised in either the estate of their late father or of my estate. 7 In respect of this provision, it is notable that the deceased did not describe her relationship with Lynn Potter in contrast to the other persons she mentioned. The deceased also referred to Lynn Potter and her stepchildren being able to maintain themselves in life according their requirements. The situation that has emerged before me is quite different from what the deceased has expressed her belief to be. 8 The estate is a small one. It consisted of the deceased's house, which has been sold. The estate has been totally reduced to cash and amounts to $155,617.56. If the plaintiff is successful there will be her costs out of the estate. There are also the defendants' costs. The defendant's costs are estimated at $28,000 and the plaintiff's costs at $25,000, giving a total of $53,000. This would leave a net distributable estate of $102,617.56, with some small adjustments to costs given that one of the plaintiffs is not proceeding. 9 I will deal with some of the history in order to put the matter into context. The deceased married Frank Robson in 1952. There were two children of that marriage. The first was Dennis Robson, who was born on 23 September 1953, and the second, Lynn Potter, who was born on 16 December 1959. The following year they purchased a property at Swansea using borrowed funds. The marriage did not last long. In 1962 the deceased and Mr Robson separated. At that stage the plaintiff Lynn Potter was three years of age. The deceased left the home and the children. Thereafter the plaintiff and her brother were looked after firstly by their father for a short while and ultimately by their grandparents. 10 In 1963 the deceased apparently began a relationship with Keith Norman Billet. There were two children of that relationship, Darlene McGrath, who was born on 28 May 1966, and Janine Charrington, born on 3 November 1968. That relationship also founded and in 1972 Mr Billet left the deceased and the two children Darlene and Janine. At that stage Darlene was six and Janine four. Thereafter they were brought up by their mother, the deceased. Given her circumstances, there was, no doubt, a difficult time for the children. There was little money to go around and they obviously had to put up with things such as second-hand clothes as they grew up. 11 In 1974 there was a visit by the deceased, Janine and Darlene to Swansea near Newcastle. Up until that time neither of these children knew of their mother's first marriage and the fact that she had children by that first marriage. They met Lynn Potter for the first time. At this stage Lynn was 14. It was the first time she had seen her mother since she had been left by her when she was three years old. 12 In 1981 Mrs Potter became pregnant and she, at the instigation of her mother-in-law, tried to contact the deceased in order to tell her that she was going to become a grandmother. She did not have any contact address for her mother but using those contacts that she could and also using the help of the police she traced her mother. She then established telephone contact with her. 13 In 1984 the deceased married Harry Board and there was another visit at that stage to Swansea. In 1985 the deceased and Harry Board divorced. Probably in 1985 or 1986 the plaintiff Mrs Potter and her husband borrowed $1,000 and used that to visit the deceased at Townsville with their daughter. That was for a few weeks. 14 In 1989 Darlene married. In 1990 the deceased moved from Townsville and came to live at Caves Beach, which is near Swansea, where the plaintiff was living. At that stage the deceased was in a de facto relationship with a Mr Lance Murphy. He died during 1991. In 1992 there was an argument or a dispute between the plaintiff Mrs Potter and her mother, the deceased. I will come back to the details of that. Thereafter a will was made. I have already set out the provisions. The deceased died on 31 July 1997. Probate was granted in due course. 15 In applications such as this under the Family Provision Act the High Court has recently in Singer v Berghouse (1994) 181 CLR 201 set out the two-stage process the court must take at page 209 the court said the following: The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." 16 As directed by the High Court, it is necessary to look at the plaintiff's situation and in particular her financial situation. She is married with two children. One of them is in year 12 and aged 18 and the other is in year 7 and aged 12. The plaintiff herself has little training. She left school after the School Certificate in year 10 and she has had two jobs since that time. She has worked as a process worker in a clothing factory for two-and-a-half years and for Coles for two-and-a-half years. She receives a family allowance of $420 per fortnight. Her daughter Kelly has been receiving Austudy, however, that will cease next week. 17 Her husband, because of the parlous state of his business, is receiving a Job Start allowance of $527 per fortnight. They have between them occasional drawings of about $100 per week, mainly to buy petrol, from the business. Lynn's husband is also doing casual work as a bar attendant in order to make ends meet. Their assets are minimal. There is an old Rover, which is not operable. There is a Ford Falcon, repairs for which will cost more than the car is worth. There is also a Hiace truck, probably used in the business, worth about $1,500. They have minimal furniture and nothing else. They live in a Housing Commission flat and pay rent of $89 per week. 18 Mrs Potter and her husband have liabilities which are slowly startly to build up. They owe school fees as far back as kindergarten amounting to $1,630, they owe ELCOM Credit Union $3,000 and Australian Guarantee Corporation $1,100. The plaintiff owes her father $2,500. There are business debts, no doubt debts of her husband of $6,400, however these debts must impact upon the plaintiff's situation. The total amount of these is $14,630.60. 19 The principal matter a court has to consider is the way in which a plaintiff may have been left without adequate and proper provision for her maintenance, education and advancement in life. It is only if the court finds that there has been inadequate or not proper provision that the court can make an order. In the present case the plaintiff has presented her case as needing something for advancement in life. She has no proposals to further her education, but no doubt in a general sense, given her fairly straitened circumstances, something to assist her in her daily living would be of benefit. 20 Principally, the areas that she advances for consideration are the repayment of her debts, the $14,630; the desire to purchase some furniture, which is not specified or costed; the desire to replace a motor vehicle with a new motor vehicle. There is evidence before me that the cost of a new Holden Olympic edition Commodore is $37,829. Notwithstanding that this may be seeking a car which is beyond what is appropriate, the general situation of the plaintiff has to be taken into account. 21 The court also has to take into account others who have a claim on the bounty of the deceased. In the present case these are two, the first is, Darlene McGrath, a daughter of the deceased. She is 33, married and has two children aged seven and five. She and her husband own a home worth about $180,000, upon which there is a mortgage of $95,000. Accordingly, they have a reasonable equity which they have build up in that home. Darlene has a car worth some $25,000 and her husband has a business, the details of which are not in evidence but at least he has a car worth about $20,000 in that business. Darlene herself has income of some $12,000 as a finance clerk and her husband presently earns about $35,000 per annum from his business. They have minimum superannuation. 22 Janine Charrington is 31. She is married with two or perhaps three children. They are young, and certainly her elder children are presently aged four and two. She and her husband have a home worth $93,000, which has a mortgage of some $69,000. There is a Pulsar car worth some $40,000 which she owns. Her husband has a car. She has some superannuation entitlements which will be of assistance in the future. Her income when she was working as a shop assistant was about $20,000. Her husband is a motor vehicle assessor and has an income of $39,000. Clearly, both daughters are starting out in life and acquiring the usual assets. 23 Importantly, both Darlene and Janine have had a good relationship with the deceased during their lifetime. They had a fairly Spartan upbringing, as I have mentioned. Both, however, kept in contact with the deceased, particularly after her move back to Caves Beach. They included the deceased in their activities, tried to make sure that she was not lonely at Christmas time and enabled her to spend time with their families at that time. 24 It is the relationship between the plaintiff Mrs Potter and the deceased which is the matter of most concern in the case. Having heard the evidence, there appears to be some uncontroverted facts. The first is that the deceased left her when she was three years of age. She grew up with her father and then with her grandparents. In 1974, when she was 14, she had this sudden visit out of the blue from her mother. In 1981 communications started. That was at the instigation of the plaintiff. Clearly, there were further communications, and there is evidence of letters and cards from the deceased to the plaintiff. These appear to have occurred during the period in the eighties until the deceased moved to Caves Beach in 1990. 25 There was also one contact, which was the visit to Townsville in 1985 or 1986 to which I have referred. According to the plaintiff Mrs Potter, when her mother came to Caves Beach in 1990 her mother stayed with her for some weeks while the house was made ready. It seems that there was contact between the plaintiff Mrs Potter and her mother up until 1992. In 1992 there was a serious argument between the plaintiff Mrs Potter and her mother. This is referred to in paragraphs 13 through to 18 of the affidavit of the plaintiff which are in the following terms: 13. Mum kept on saying to my daughter Kelly, "come to mummy" all the time and she wanted Kelly to live with her. I said to Mum, "she is your granddaughter mum, not your daughter". Mum just kept on saying it over and over again. I could not even chastise her because my Mum would say "come to mummy". I said to Mum, "She is my daughter and I will say what she does". Mum turned very nasty. 14. Our car was off the road for three weeks getting fixed in my Dad's garage. 15. My daughter has a friend that lived near Mums house. Kelly went to her friend's house to play. I said to Kelly, "just go and tell grandma that we have had problems with the car and I will see her soon". She slammed the door in my daughter's face and said, "just tell them its too late". I then rang her and she just said "nobody comes near me and you're taking my daughter' away". 16. I was scared because I didn't want my daughter hurt in any way. 17. I have some letters, cards and photos of us together. 18. I loved my mother for the time I had with her, which was only a few years of my life and I just did not want her to hurt me anymore by thinking that my daughter was hers. I said to Mum, "you cannot make up for the years lost with me, with my daughter". I just did not want to be hurt anymore. I could not allow myself to get as close as I would have liked to have been with my Mum because I was afraid of being hurt again. 26 This difference, which seems to have stemmed out of a somewhat possessive attitude by the deceased towards the plaintiff's child, has had an effect on the plaintiff which I think she still seems to suffer from at the moment. I would have thought, given the nature of the person that Mrs Potter is and having seen her give evidence, that it could be quite frightening for her that her mother was showing these intentions and what might be described as worrying or excessive affection for her daughter. Probably it might be that Mrs Potter was not mature enough to be able to handle the situation. Certainly the way she dealt with it was to cut off her mother from all contact. The will was obviously made just after this incident and thereafter the plaintiff Mrs Potter and her mother did not speak even though they would pass each other in the street, as they lived nearby. 27 There is also evidence of complaint by the deceased that the relationship with Mrs Potter was one which had a financial interest as far as Mrs Potter was concerned. There were also references in the evidence to the children of Mrs Potter, after this occurred, coming around to the deceased's house, throwing stones in the pool and on the roof and generally probably being spiteful to the deceased. Mrs Potter denies that these events happened. However, it seems to me that given the nature of young children and particularly given what happened to Kelly when she went round to see her grandmother, the evidence in respect of which I have already set out above, namely the fact that she had the door slammed in her face and was told it was too late, that the children may well have reacted this way and have done it of their own initiative. 28 It is very unfortunate. The chances of there being some rapprochement I would have thought were pretty small. The deceased appears to have thought she had been badly rebuffed by her daughter, and probably her daughter felt that her happiness and also her child's happiness was at risk. It is to be remembered that the plaintiff had been abandoned by her mother when she was three and any further relationship has to contend with the history which must have an effect on the parties. 29 The question is what has to be done about this break in the relationship. It is not submitted that the break is such as to be conduct disentitling to the extent that no order ought to be made. Certainly the fact that there was this break and that the plaintiff took no steps to try and heal the rift is a matter that has to be taken into account. These matters are always difficult. One has the deceased making statements to other people, which may perhaps have sprung from a desire to justify herself. The deceased does seem to have had some feeling that the plaintiff was depending on her and seeking financial assistance. That probably is a result of the difficult financial situation of that the plaintiff. 30 Ultimately one has to balance this along with the other claims on the bounty of the deceased. Clearly, her two daughters to whom I have referred do deserve the bequests which they have been given. They have supported their mother. They had a difficult time as they grew up. For this reason, one can understand the deceased making proper provision for them. However this may be, there is still the relationship of a mother and daughter between the plaintiff and the deceased. The deceased should have recognised a duty to that daughter. 31 Having regard to the matters to which I have referred, particularly considering the matters relating to the separation, it seems to me in dealing with an estate which is after costs a little over $100,000 that the appropriate order is it that the plaintiff Mrs Potter receive a legacy of the $25,000. Accordingly, the orders I make are as follows: 1. That the plaintiff Lynn Potter receive a legacy out of the estate of the deceased of $25,000. 2. Interest not to run on the legacy if it is paid within one month, and thereafter at the rate provided under the Wills, Probate and Administration Act. 3. The plaintiff Lynn Potter's costs on a party-and-party basis and the defendants' costs on an indemnity basis be retained or paid out of the estate of the deceased. 32 The other matter that has to be resolved are the costs in relation to the claim by Dennis Robson. He was a joint plaintiff in these proceedings and clearly, having filed affidavits, the defendants have had to reply to the matters which he has raised. The defendants' affidavits deal with his affidavits. Although there are not a lot of paragraphs devoted to them, they do always require work on the part of the solicitors, whether it be in conference, obtaining advice or otherwise. 33 The claim which Dennis Robson made was one which, given the size of the estate, would have no chance of success. He is a person who has in relative terms compared with the other parties large property entitlements including amounts of superannuation of some $98,000. In these circumstances, clearly one would have thought the decision was the right one and it is a pity that it was not taken earlier. In the circumstances the appropriate order is that the plaintiff Dennis Robson pay the defendants' costs thrown away as the result of the abandonment of the claim of Mr Dennis Robson, those costs to be on a party-and-party basis. Exhibits to be returned. oOo Last Modified: 11/15/1999 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.