New South Wales Supreme Court CITATION : BRADY V BRADY [2001] NSWSC 547 revised - 29/06/2001 CURRENT JURISDICTION: EQUITY DIVISION FILE NUMBER(S) : SC 1243/1999 HEARING DATE(S) : 27 - 28/06/01 JUDGMENT DATE : 29 June 2001 PARTIES : Michael Conor BRADY v Kathryn Lois BRADY - Estate of Desmond Michael BRADY, deceased. JUDGMENT OF : Acting Master Berecry at 1 COUNSEL : R.T.A. Waddell - plaintiff J. Wilson - defendant Teece, Hodgson & Ward - plaintiff SOLICITORS : Wm Walker Taylor Edwards & Smith - defendant CATCHWORDS : Short marriage - quality of the relationship - need for clear evidence of financial position - appropriate accommodation for widow. LEGISLATION CITED : Family Provision Act 1982 Singer v Burghouse (1994) 181 CLR 201 at 202 Pontifical Society for the Propagation of Faith v Scales (1992) 107 CLR 9 at 19 CASES CITED : Sellers v Public Trustee - unreported 8/2/89 Luciano v Rosenblum (1985) 2 NSWLR at 65 Elliott v Elliott (Powell J) DECISION : Additional provision be made out of the estate of the late Desmond Michael Brady for plaintiff by way of payment of a lump sum of $35,000;; Plaintiff's costs be paid out of the estate on the party/party basis;; Defendant's costs be paid out of the estate on the indemnity basis. THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ACTING MASTER BERECRY FRIDAY, 29 JUNE, 2001 1243/99 - Michael Conor BRADY v Kathryn Lois BRADY - Estate of Desmond Michael BRADY, deceased. JUDGMENT 1 MASTER: The plaintiff is the younger son of the deceased and brings this application pursuant to s 7 of the Family Provision Act for provision out of his father's estate. The deceased died on 15 September 1997. Probate of his Will made on 21 September 1995 was granted on 24 August 1999. These proceedings were commenced on 1 February 1999. Therefore the proceedings are brought within time. 2 The deceased made the following provisions in his Will. Two specific bequests to his daughter and a son each receiving paintings. The property known as 6 Barons Crescent, Hunters Hill was given to the defendant, his wife. The residue of the estate was to be converted into cash and 6% was to be provided equally to his two sisters in Ireland. The remaining 94% was to be distributed between his wife, the defendant and his other children. The only valuable asset in the estate is the property at 6 Barons Crescent, Hunters Hill. For the purpose of these proceedings the value was agreed at between $600,000 and $620,000. The other items in the inventory of property were debts, one of which has been forgiven and the other one may not be recoverable, a motor vehicle and outstanding professional fees, tax refund, books, jewellery and some furniture. There was an account held jointly with the defendant with Irish Permanent Building Society. However the monies in that account became the defendant's by survivorship on the death of the deceased. It is clear that there are insufficient assets in the estate to meet payment to the residual beneficiaries. 3 As a child of the deceased the plaintiff qualifies as an eligible person under s 6 of the Act. In determining whether or not provision ought to be made for the plaintiff out of the estate the Court must apply the exercise described in Singer v Burghouse (1994) 181 CLR 201 at 202. In considering the two stages one has to consider the requirements of s 9 (2)(a). What provision was made for the plaintiff during the deceased's lifetime and what provision was made out of the estate. According to Singer v Burghouse (supra) if it is determined that the plaintiff has been left with inadequate provision for his proper maintenance, education and advancement in life then it is necessary to move on to the second stage to determine what provision, if any, should be made for the plaintiff. 4 The plaintiff was born in 1964. The deceased was a psychiatrist who practised at the Gladesville Psychiatric Centre. For most of his early years the plaintiff lived in accommodation provided at the Centre with his siblings and his parents. According to the evidence of the plaintiff and of his siblings they lived in a happy and caring environment. In 1982 the plaintiff's mother died suddenly. This was the year the plaintiff was to sit for his Higher School Certificate. The evidence is that the death of his mother had a traumatic effect on both the plaintiff and the deceased. During this period the deceased's alcohol and drug abuse increased. Evidence suggests that the deceased had a drug and alcohol problem since the early 1970's. This in fact continued until 1987. At that stage, with the support of his children he was admitted to a clinic and entered into a rehabilitation scheme. During the years 1988 and 1989 he attended AA and Alanon meetings accompanied by the plaintiff. 5 During this period the plaintiff continued to live in the family home at Hunters Hill whilst his father was on the rehabilitation program. The plaintiff carried out certain works on the family home. There is some controversy over the contributions that were in fact made by the plaintiff. The defendant's evidence was that the deceased had informed her that the plaintiff performed the labour. However, he paid for the materials. The plaintiff denied this. His evidence was that he paid $5,000 to purchase the materials required for the work he performed. The evidence is inconclusive but I have no reason to doubt the plaintiff's evidence. 6 The deceased appeared to have a good relationship with the plaintiff. The evidence of some of the siblings was that the plaintiff and the deceased had a particularly close relationship and for a variety of reasons their father felt closer towards the plaintiff. This appears to have been because of his age at the time when his mother died. In 1989 the plaintiff toured Australia and then went overseas. He was absent from Sydney for a period of approximately four years. Once again there is some controversy over contact with and support by his father. The plaintiff's evidence was that he kept in regular contact with his father. However that varied. On occasions he might speak to his father a couple of times a week. On other occasions there might be several weeks pass before he spoke to him. During this period overseas the communication was either by telephone or by writing. 7 The defendant's evidence is that the deceased was disappointed because he rarely heard from the plaintiff. Although the evidence is inconclusive I do not think a great deal hangs on the evidence either way. In my view it is not unusual for children to travel overseas often for extended periods and to telephone their parents as and when they can. This seems to be a normal part of modern Australian life. It was inferred by the defendant that the deceased supported the plaintiff to some extent during his overseas stay. However no evidence was produced to establish that other than a concession by the plaintiff that the deceased might have deposited $500 into his Visa account. When questioned the plaintiff readily conceded that he did receive support from his father. However that support was the purchase of an air ticket from the United States to Luxenbourg at a cost of $126.00. 8 When the plaintiff returned to Australia in approximately 1994 he continued to reside in the Hunters Hill home. However in the intervening period the deceased had married the defendant. Once again there is some controversy over the reasons why the plaintiff left the family home. There was agreement that the deceased had requested the plaintiff to leave the home. The reasons for him leaving however were controversial. The plaintiff's evidence was that his presence was causing friction between the defendant and the deceased and that the deceased had been informed by the defendant that "either Michael leaves or I go." However the defendant's evidence was that Michael acted in an inconsiderate manner knowing that she was on night duty, would wake her up in the middle of the day thus depriving her of the sleep she needed. Once again I don't think much hinges on which is the correct version of the events. In any event by this stage the defendant was thirty years old, had lived independently for at least four years and it was certainly appropriate to think in terms of finding his own accommodation. Thereafter over the remaining three years of the deceased's life the plaintiff did not see him as regularly as he had done prior to going overseas. That of course is only natural. He is no longer living in the same premises. However the evidence of all parties was that there were regular family get-togethers either by way of a luncheon or barbeques. These were generally held to commemorate a special occasion such as Christmas, a birthday, father's day, mother's day. There were in fact two special occasions during this period. One was the seventieth birthday of the deceased and the other was a celebration of ten years of sobriety of the deceased. The evidence from the plaintiff and his siblings was that these were happy occasions. The defendant however painted a more subdue picture. I suspect that somewhere in between is an accurate representation of what these functions were like. Nevertheless once again they appeared to be nothing out of the ordinary. There is nothing in the conduct of the plaintiff to suggest that he was not a loving and caring son or that his conduct was such that it would disentitle him sharing in his father's estate. 9 In fact the deceased did make provision not only for the plaintiff but also for his brothers and sister. Unfortunately his estate is perhaps not as large as he assumed. He made substantial provision for his wife. She was to receive the family home. She was also to receive cash. Each of the children were also to receive cash. Unfortunately there was very little cash in the estate at the time of his death. 10 During the lifetime of the deceased he had made provision for the plaintiff. That plaintiff was the normal responsibility of a parent to a child. He provided accommodation, education and maintenance. The accommodation was continuous up until the time the plaintiff was approximately twenty-six. When the plaintiff returned from overseas he was provided with accommodation. However, as I have already mentioned things did not work out. Provision was made for the plaintiff out of the estate of the deceased. However as I have already mentioned there was very little by way of residue to distribute to the residual beneficiaries. 11 The plaintiff is thirty-six years of age. He lives in a de facto relationship with Kathleen Lynch. He is self employed as a graphic artist. His partner is also self employed. The plaintiff has been self employed for a number of years. He has always been employed in the field of a graphic art or as photographer producing newspaper advertisements. There was a period of time when he worked for one of his brothers. During his brother's absence of leave he acted as the general manager of the business. The evidence of his siblings is that he is industrious and in fact was a valuable asset to the business. 12 Unfortunately for the plaintiff in his line of work great advances in technology had happened between 1989 and 1994 when he returned to Australia. He then had to seek a different direction for his career. He has for a number of years worked as a graphic artist preparing designs for refrigerator magnets. This has given him only a very small income. His partner, Ms Lynch conducts her business selling native American and indigenous Australian arts and crafts. She, like the plaintiff appears to have a regular income but once again it is modest. The plaintiff has demonstrated a willingness to work. In addition to his business he has for a period of time worked as a courier both in Sydney and in Melbourne. The main purpose for this employment was to provide funds for the prosecution of this litigation. However, it demonstrates, regardless of the reason, a willingness on the part of the plaintiff to undertake work. His partner appears to have a similar disposition. Not only does she have her own business but she also works from time to time for an entity called Salesforce Australia which is a call centre for Medibank Private. Her evidence is that she performed some work for them in 2000. She is currently on a twelve months contract with them. The work is not full-time. She works approximately twenty hours a week. 13 The plaintiff suffers from a degenerative neck condition. It appears that this is a genetic condition, his father exhibited the same condition as well as one of his brothers. He has also developed a disease that causes the wasting of his hands. A medical report from Mr Dudley John O'Sullivan, Neurologist states that "the plaintiff has chronic spinal muscular atrophy of a heredofamilial type. There is no specific treatment for this condition. It is a very slowly progressive condition, which will steadily get worse over many years, making it increasingly more difficult for Mr Brady to use his hands, particularly as he works as a graphic artist. As a result of this condition, there will be an effect on his earning capacity in the future". 14 The plaintiff continues to have chiropractic sessions for his neck and is now attempting to change his career path. The result of the spinal muscular atrophy is that there is a wasting of certain muscles in the hand which make it difficult for him to use his thumb and forefinger. He wishes to move into the computer industry where he will not have to use his hands in the same way as does a graphic artist. To achieve that ambition he is undertaking a course with Comtech Eduction to enable him to get certification as a Microsoft Certified Professional. 15 The plaintiff was vague when cross-examined in relation to certain aspects of his income and assets. In relation to his Income Tax Return there were copious quantities of returns. The most recent return was the year ending 30 June 2000 showing he had a taxable income of $14,659.00. His liabilities amounted to approximately $37,000. His assets were approximately $56,500. However in cross-examination there were a number of matters which were disclosed. The plaintiff has a company called Lan Rover Pty Ltd. This is not disclosed in his statement of assets. He is the sole shareholder of this company. This also he has not disclosed in his assets. He was vague in relation to his interest in the Mount Franklin property. He maintained that he was unaware of the value of the property. However the property has a mortgage to cover a loan of $250,000. The plaintiff however is not the sole owner of the land. It is held jointly with his de facto partner and three other persons. Nevertheless borrowing such a large sum of money one would normally know what the value of the property is that one intends to have the mortgage over. 16 The plaintiff also failed to disclose that he had received a payment of $25,000 from his sister. This sum appears to have been a one off payment for work that he performed on a sub-contract basis for his sister. Most of that money has now been expended. The state of the plaintiff's evidence in relation to his financial circumstances was not satisfactory. Nevertheless there is sufficient evidence to give a general understanding of his assets and liabilities. There is evidence that the Mount Franklin property has a value of $320,000. The evidence was that the mortgage on that property currently stands at $249,000. There is therefore approximately an equity of $70,000 in the property. However were the property be sold the nett proceeds of sale of the property would have to be divided five ways and that would not be an equal division of the nett profit. The plaintiff's interest is 14.8%. That would give the plaintiff something less than $10,000 from the proceeds of the sale. 17 Doing the best I can, I accept the figures that are contained in his affidavit of 29 May 2001. On those figures there is a debit of $1,784.09. Similarly for his partner, she shows assets of just under $82,000 and liabilities just under $108,000 creating a debit of approximately $26,000. Neither the plaintiff nor his partner own any other realty other their interest in the Mount Franklin property. The plaintiff sees as his needs provision being made for his ongoing chiropractic treatment, assistance with the Microsoft course and provision for any surgery that he may require in the future for his neck and also the costs of an IVF program. 18 Whilst provision has been made for the plaintiff by his father, circumstances have resulted in there being no residuary estate for the plaintiff to share. The question then becomes whether there ought to be provision made for the plaintiff out of the estate of the deceased. The plaintiff being the son of the deceased is in a strong position to make a claim. In my view in all the circumstances inadequate provision has been made for the plaintiff's proper maintenance, education and advancement in life. However the next thing to consider is whether provision should be made for the plaintiff. In considering that question the competing needs of the defendant are to be taken into account. 19 The defendant was born in 1941. She is sixty years of age. She met the deceased in December 1989 and they married on 16 June 1990. Prior to and after meeting the deceased the defendant worked as a nurse. Marriage to the deceased was for a period of just over seven years. The marriage came to an end on the death of the deceased. During the marriage the defendant was called on to perform a number of duties which indicated the strength and commitment that each had to the marriage. Just prior to the marriage the defendant lent the deceased $23,000 to assist him with his provisional tax. This money was repaid by the deceased once the Balmain investment property was sold. 20 Towards the end of 1990 the deceased was diagnosed with Chron's Disease and according to the defendant's evidence which is not contradicted, the deceased became quite ill and was hospitalised on many occasions between 1990 and until his death in 1997. The evidence is that the disease was very difficult to manage. The worst symptoms of the disease were chronic explosive diarrhoea and at times incontinence. The defendant did everything she could to relieve the deceased's discomfort and embarrassment. In 1994 the deceased flew alone to Ireland to a wedding. He became very ill whilst in Ireland and the defendant had to fly to Ireland on twenty-four hours' notice to bring him back to Australia. 21 His condition deteriorated in 1995. He had a bowel obstruction and this resulted in major surgery. Following the surgery the deceased suffered a heart attack and two days later suffered cardiac arrest. He was resuscitated but was seriously ill. When the deceased was released from hospital in January 1996 he was frail and weak and had a large abdominal wound which required dressing twice daily. This task was performed by the defendant. Upon the discharge of the deceased the defendant took holidays so she could nurse him full-time at home. When she returned to work she arranged evening shifts as the deceased was still highly dependent on her for assistance. During this time she would assist him in getting out of bed and to his toilet needs. She bathed him and continued to dress the abdominal wound. A neighbour gave assistance by keeping an eye on the deceased during the afternoon. 22 Once the deceased began to recuperate the defendant continued with the rehabilitation by taking him on short walks, gradually over a period of time extending those walks as he regained strength. However the deceased's condition continued to deteriorate and it seems, although it is not clear from the evidence that from some time in 1996 until his death he was not able to walk unaided. He required either the use of a walking stick or had to lean on the defendant for support. He suffered several falls during this period. Once fracturing two ribs and another time severely damaging one of his ankles. 23 The defendant also gave the deceased support in other ways. Not only did she do what would normally be expected of a spouse preparing meals for the deceased, but she also became the major bread-winner of the household. Because of the deceased's illness his income decreased and during the seven period of the marriage the defendant's income on average was approximately twice that of the deceased. Therefore most of the financial burden of the day to day living fell on the defendant. Not only did the defendant pay many of the day to day costs of living but she also paid all her own airfares and expenses when they travelled. The upstairs area of the Hunters Hill property was carpeted during this time and that was paid for by the defendant. 24 The evidence of the defendant is that she attempted to continue the relationship the deceased had with his children. This is not contradicted by the plaintiff. Many of the family get togethers that I have mentioned earlier were held at the Hunters Hill home and on at least one occasion she paid all the expenses associated with a particular function. It was a catered function. It would seem to me that in that context the defendant also made efforts to extend the hand of friendship to the deceased's children and to become an integrated part of the larger family unit. 25 Since 1998 the defendant's health has also declined. She sustained an accident at work which aggravated a pre-existing spondylosis. Since that time she has been unable to work. Until late 2000 she was in receipt of Workers' Compensation payments and during that two year period used her sick leave and recreational leave. There has been a pay-out of her Workers Compensation rights of $38,000. On the payment of that amount weekly compensation payments ceased. She has been forced to go on to a partial disability pension. The defendant also suffers from constant chronic lower back pain radiating down her legs. This is causing her difficulty walking especially up and down stairs or on inclines. Her evidence was that she tries to avoid inclines and steps whenever possible. Her evidence is that the back pain cannot be eleviated by surgery and that other strategies are required to relieve the chronic pain. Financial Position of the plaintiff 26 Whilst it is difficult to ascertain the precise financial position of the plaintiff and his partner it would seem from the evidence that his liabilities appear to be approximately $58,000. His assets consist of a 1987 Holden, furniture, a 25 foot sloope, savings accounts, shares in his company Lan Rover Pty Ltd and a 14.8% interest in a property at Mount Franklin. The Mount Franklin property has a value of $320,000. It appears to be gross equity of approximately $70,000 in that property but he is of course one of five co-owners and his share is worth only 14.8%. His affidavit failed to disclose the value of his business, monies that are owed to the business and its stock and furniture. His evidence was that he is winding down the business mainly because of the wasting of his hands and that currently he holds approximately $1,000 in stock. In relation to business furniture the only evidence from the plaintiff was that the AGC liability disclosed in paragraph 22 of his affidavit of 29 May 2001 of $6,000 represents money spent for the purchase of office equipment and a bed. No value has been ascribed to the Lan Rover business although there is evidence that the business has received income of at least $25,000 although it does appear that was a one off contract obtained through his sister. 27 It would seem therefore that his share of the Mount Franklin property would be in the vicinity of $47,000. The office furniture has not been identified and it would be mere speculation to ascribe a value to it suffice to say that on his evidence the debt to AGC of $6,000 was used in the main for the purchase of office furniture. Leaving that to one side, his assets total approximately $66,500.00. He therefore has a surplus of assets over liabilities of approximately $8,000. His partner's assets are listed in paragraph 7 of her affidavit of 27 June 2001. The value that she ascribes as assets is just over $100,000. By my calculation the total is somewhere between $100,000 and $106,000. Her liabilities are set out in paragraph 8 of that affidavit. The total of her liabilities is just over $104,000. Therefore the balance of her asset liability position is that it is either neutral or it is perhaps an amount of no more than about $2,000 credit. 28 It is also difficult to ascertain what their weekly income and expenditure is. For the financial year ended 30 June 2000 the plaintiff's evidence is that his taxable income was $14,659.00. His partner for the same period states that her taxable income was $11,859.00. That gives a combined income of approximately $26,500.00. It is not clear what their outgoings are at the present time. At best it could be said that the combined incomes do not generate great wealth or cash and that combined they are still well below the average Australian income. They would of course have all the needs and obligations associated with day to day living. They rent premises combining as residential and business accommodation. They need food to eat and clothes as well as the other incidents of living such as furniture and the like. Whilst there is an absence of evidence I think common sense would dictate that what income they do generate is by and large used up by day to day living expenses. 29 Whilst they have an interest in the property at Mount Franklin together their interest is on 29.6% of the property. It could not be said that the property could accommodate them. Currently the property is tenanted and the purpose of the purchase was to assist them developing some capital which would ultimately enable them to have the capacity to buy their own home. The plaintiff has the expenses in relation to the condition that he suffers from that I have mentioned earlier, that is the chronic neck problem and the wasting of his hands. Whilst he is not receiving treatment for the hands he is receiving constant treatment for his neck. He and his partner also desire to have children.. However they have been unsuccessful to date. Both have had fertility tests and it seems from the evidence that the plaintiff needs to undertake an IVF course if they hope to have children. Financial position of the defendant 30 The financial position of the defendant is that she receives a partial disability pension in the sum of $317.00 per fortnight. She also receives income from investments she has. At the present time she has invested with the ANZ Banking Group $115,000. She also has NRMA shares worth $4,000. Interest on her investments currently returns approximately $1,500 per quarter. The investment income and the pension provide her with an average weekly income of $283.00. Her expenses are $343.00 per week leaving a deficit of $60 per week. The defendant conceded that there are some areas of her expenses that perhaps could be reduced thus reducing the weekly deficit. However it seems to me that looking at the figures that are set out in paragraph 18 of her affidavit of 2 May 2001 that there is not a great deal of room for any pairing back of her expenses. 31 The defendant's back condition has not improved. She still has difficulty in negotiating stairs and inclines. In about October 1999 the defendant moved into a unit at Oxley Park. The unit was conducive to her back condition in that it did not have any stairs that she had to negotiate. However in approximately October 2000 she moved back in to the Hunters Hill property. The House at Barons Crescent, Hunters Hill is on a steep block of land and it is built on two levels. There is a garden on the lower level and a garden at the front of the property. There is a steep drive which gives vehicular access to the property. The upper level has six rooms. However the evidence did not reveal how many rooms were on the lower level. The defendant's evidence was however that she uses only one room on the lower level and finds that two weeks out of four she is unable to use the stairs. She conceded that she spends most of her time in the upper level of the property. She is unable to do the gardening and has a gardener to attend to the gardens and the lawns. Whilst ever she is on one level she has no difficulties. 32 The defendant painted a picture of herself as one who was able to drive a motor vehicle, attend to the normal chores around the house, attend at shopping and doctors. However when stairs are involved she is greatly restricted. As a result half the house is rarely used. The defendant's assets consist of the property at Barons Crescent, Hunters Hill, the value was agreed at somewhere between $600,000 and $620,000, an investment in the sum of $115,000 and NRMA shares to the value of $4,000. She also has a motor vehicle valued at approximately $25,000 together with approximately $5,000 furniture and an ANZ Banking Group account in the sum of $4,000. Her liabilities, excluding the costs of these proceedings amount to $2,700.00. 33 Under the terms of the deceased's Will provision was made for each of his children. However as it has been established there is little by way of assets other than the family home at Hunters Hill. A consideration which must be taken into account in exercising a discretion under the Act is the fundamental right that a testator has to make dispositions in whichever way he chooses. The Act does not give the Court an unreserved right to rewrite the Will or to make provisions where there is no basis for such provisions other than perhaps to correct any sense of wrong that a beneficiary or eligible person may feel. The Court can only disturb the testator's Will to the extent that it is necessary to achieve the purposes of the Act. See Pontifical Society for the Propagation of Faith v Scales (1992) 107 CLR 9 at page 19. The testamentary intention of the deceased was to leave his wife the property at Hunters Hill plus a small amount of the residue of the estate. In Luciano v Rosenblum (1985) 2 NSWLR at 65 the Court of Appeal affirmed the decision of Powell J in Elliott v Elliott. Where the marriage had been a long and harmonious one and the widow had loyally supported her husband and assisted him the duty which the deceased owed to the widow can be no less to the extent to which his asset permitted him to achieve that result. First to ensure that the widow be secure in her home for the rest of her life and that if either need arises or the wish strikes her she has the capacity to change her home; secondly that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; thirdly that she have available to her a fund to which she might resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring. 34 In the present case the estate could not be regarded as a small estate. However it is an estate which has one asset of considerable value. The other assets in the estate amount to very little. In Sellers v Public Trustee (unreported, 8 February 1989) the Court held that a marriage of five years duration did not require the same reflection in testamentary gifts as the moral duty incurred by a marriage of many decades in which children have been reared. The course of moral obligation or duty is no longer a basis for the Court to make a determination under the Act. However in determining whether there ought to be additional provision made for the plaintiff there needs to be a balancing act between the respective parties. The plaintiff is a son of the deceased. He has two conditions which will be ongoing, each related to the other. The condition affecting his hands has a significant impact on his life. He is a graphic artist and he needs to use his hands; more particularly the forefinger and the thumb. This avenue of employment will not be open to him in future years. He desires to re-educate himself so that he can earn a living and support himself in the future. He has very little in the way of assets and both he and his partner are on low incomes. 35 The defendant is in a better position than the plaintiff. However, she also has a back condition which restricts her movement so that she avoids using stairs and walking over sloping ground. The agreed value of the Hunters Hill property is somewhere between $600,000 and $620,000. 36 The marriage between the defendant and the deceased was a seven year marriage. It could not be regarded as a long marriage. However there is no dispute that the marriage was a happy one. Each supported one another and more particularly the defendant supported the deceased. Of the seven years they were married only a small percentage of that time did the deceased enjoy good health. The plaintiff spent the vast majority of the marriage caring for the deceased and being the main bread winner in the family. Whilst the marriage may not have been long it certainly was a marriage which is distinguished by the quality of the relationship. It seems to me that whilst the element of length is not present the marriage should not be treated simply as a short marriage. There needs to be factored into the equation the care that was provided by the defendant to the deceased. 37 Nevertheless I think the plaintiff has established that provision ought to be made out of the estate for him. Although the cases state that where it is possible for provision for a widow to remain in the family home and have some capital to assist her where the estate can provide there are two distinguishing features in this matter. Firstly it is the duration of the marriage and secondly the limited amount of funds that are available. The defendant has two daughters who live in Sydney. One at Baulkham Hills and the other at St. Marys. The defendant lived at Oxley Park which I believe is near St. Marys for a period of twelve months. On her evidence the reason why she returned to Hunters Hill was because of the doctors. However the evidence was that her current General Practitioner has been treating her for only two months. It would seem to me that the choice of a G.P. is not necessarily linked to Hunters Hill. If provision was made for the plaintiff it would seem to me that the defendant may still be able to reside at the Hunters Hill property or alternatively sell the property and buy a comfortable property in Sydney, either near her daughters or somewhere within the vicinity of the Hunters Hill/Gladesville area. 38 The plaintiff seeks provision to be made out of the estate to assist him to re-train, for medical expenses, to assist his debts and personal loan and to assist with the purchase of a property. In my view the estate is not large enough to warrant in the circumstances a provision which would assist the plaintiff to obtain his own property. However provision should be made for the other headings, that is his re-training, his medical requirements and his debts. I am unsure because of the evidence about what the true position is as far as the re-training costs are concerned. The evidence is unclear. I think provision therefore should be made for medical assistance whether that be for the chiropractic treatment or the IVF program and for his debts and personal loans. 39 I do not think that there is a need to make a declaration in relation to notional estate. As I understand it the only notional estate was the money that was invested with the Irish Permanent Building Society. The house at Hunters Hill was transferred to the defendant after the deceased had died. Therefore that formed part of his estate. I propose to allow by way of further provision out of the estate of the late Desmond Michael Brady the sum of $35,000. 40 The orders I make are as follows: 1. Additional provision be made out of the estate of the late Desmond Michael Brady for the plaintiff by way of payment of a lump sum of $35,000.00. 2. The plaintiff's costs be paid out of the estate on the party/party basis. 3. The defendant's costs be paid out of the estate on the indemnity basis. ************** Last Modified: 07/02/2001 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.