Perry v Harris [2001] NSWSC 992

New South Wales Supreme Court

CITATION : Perry v Harris [2001] NSWSC 992 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5083/1999 HEARING DATE(S) : 31/05/01, 1/06/01 and 2/11/01 JUDGMENT DATE : 2 November 2001

PARTIES : Lynette Anne Perry - as next friend for Martene Louise Perry and Blake Stuart Perry v Michelle Nadine Harris - Estate of Denis Sydney Perry JUDGMENT OF : Master Macready at 1

COUNSEL : Mr B. Slowgrove for the plaintiff Mr J.D. Shaw for the defendant SOLICITORS : Coyne & Whittemore for the plaintiff Denis M. Anderson for the defendant CATCHWORDS : Family Provision. Claim by children of deceased's first wife. Consideration of competing claim by defendant who had been living in a de facto relationship with the deceased for 12 years. Order for small legacies. DECISION : Paragraph 47

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1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Denis Sydney Perry who died on 7 July 1998 aged fifty-three years. The deceased was survived by his two children, his former wife and the defendant, with whom the deceased had lived since 1986. 2 The deceased's last will was made on 30 September 1992. He left the whole of his estate to the defendant and appointed her executrix. The application is brought by the deceased's two children. The estate consisted of the deceased's half share in the property 3 Langshaw Place, Connells's Point and some superannuation and wages which were due to him. 3 The estate's half share in the property has been transferred to the defendant and she has got in the other assets, and out of that paid the deceased's debts. Ultimately she received $19,023.35. The property at Connells's Point is now valued at $570,000. 4 Costs have been incurred in this matter in quite substantial sums and after making allowances for the fact that the second round of hearings only went for one day rather than two days, the plaintiff's costs are estimated at $41,000, the defendant's costs at $41,000. These are on a solicitor and client basis and would be somewhat less on a taxation. The defendant has not yet paid her costs. 5 I will just deal with a short amount of the history in order to put the matter in context: the deceased was born on 24 March 1945. The defendant was born on 3 November 1954. The deceased married for the first time on 10 December 1977. His daughter, Martene Louise Perry, was born on 31 January 1982 and his son, Blake Stuart Perry, was born on 28 December 1983. The deceased and his wife separated in June 1986 and in October 1986 the deceased and the defendant commenced living together. From that time onwards the deceased starting paying child maintenance at the rate of $25 per week for each child. The deceased was divorced in 1989 and on 12 October 1989 there were consent orders disposing of his property matters with his wife. 6 The orders provided for the sale of the former matrimonial home at 64 Durham Street, Hurstville and the division of the net proceeds which were in the proportion sixty per cent to his wife and forty per cent to the deceased subject to there being a payment for the deceased in the sum of $4800. 7 The consent orders provided for the deceased to pay child maintenance in the sum of $42.50 per week for each of the two children until they attained eighteen years. The children lived with their mother, who had custody, and the deceased had access. 8 It was in 1992 that the deceased made his will to which I have already referred. In December 1992 orders increased the maintenance to $56 per week per child, such provision to increase in accordance with the movements in the CPI. 9 On 7 July 1998 the deceased died, aged fifty-three years. Following upon the deceased's death, the defendant continued to pay child maintenance in a total sum of $120 per week. This was done notwithstanding that Martene attained eighteen years on 21 January. The reason for this was that she had been asked to continue to make the child payments by the deceased while the children needed educating. The defendant had no obligation to continue those payments; the obligation ceased on the death of the deceased. The defendant, in fact, was given advice at the time of the deceased's death that she did not have to make the payments. However, she did do so and did this on a voluntary basis for some three years. To date she has paid $19,920 towards the maintenance of the children. 10 Probate was granted on 8 September 1998 and in October 1998 the estate was distributed to the defendant. 11 In September 1999 some amounts were paid from a superannuation fund. The defendant received $15,067.96 and the mother of the two plaintiffs, as trustee for them, received $14,532.92. 12 In applications under the Family Provision Act the High Court has, in Singer v Berghouse (1994) 181 CLR 201, set out a two-stage approach that the Court must take. At p 209 it said the following: "The first question is, was the provision, if an, 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' et cetera were explained in Bosch v Perpetual Trustee Company Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provisions, if any, made was inadequate or what, in all the circumstances, was the proper level of maintenance, et cetera, 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.