Carpenter v Carpenter [2004] NSWSC 460

New South Wales Supreme Court

CITATION : Carpenter v Carpenter [2004] NSWSC 460 HEARING DATE(S) : 22/04/04 JUDGMENT DATE : 31 May 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 42

CATCHWORDS : Family Provision. Application for provision from plaintiff's father's estate. Plaintiff already received assets from his mother's estate. Defendant son receives assets in father's estate. Proceedings in Queensland by parties in respect of mother's estate. Application dismissed. PARTIES : Gregg Douglas Carpenter v Keith Thomas Carpenter FILE NUMBER(S) : SC 5946 of 2002 COUNSEL : Miss J. Needham for plaintiff Mr L. Ellison for defendant SOLICITORS : Robbins Watson Macedone Christie Willis for defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Master Macready

Monday 31 May, 2004

5946 of 2002 GREGG DOUGLAS CARPENTER v KEITH THOMAS CARPENTER JUDGMENT 1 MASTER: This is an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late Alfred Thomas Carpenter who died on 20 May 2002 aged 75 years. He was survived by the plaintiff and the defendant who are his two sons. The last will of the deceased 2 The deceased left a will dated 13 February 1981 by which he left his estate to his son, Keith Thomas Carpenter, the defendant. Assets in the estate 3 The main property held by the deceased at the date of his death was the property at 13 Chipilly Avenue, Engadine valued then at $400,000.00. He had shares in the Commonwealth Bank valued at $27,582.00. Those shares have been transferred into the defendant's name upon the terms of a trust to which the defendant agrees. That trust is to hold the shares for the plaintiff's two daughters to transfer the shares to them when they attain 25 years of age. The deceased had a bank account of some $12,300 and a vehicle worth $28,000. 4 All the assets have been transferred to the defendant and, indeed, shortly after the proceedings commenced the defendant had transferred one half of the property into the name of the second defendant who is his de facto partner. The parties are agreed that the property at Engadine is now valued at $550,000.00. At the date of death, the property was mortgaged to the extent of $200,000.00. This was not a debt of the deceased as he had allowed a mortgage over the property to provide funds for the defendant. 5 There are substantial costs incurred in both these proceedings and the Queensland proceedings to which I will refer later. The defendant's costs in these proceedings are estimated at $43,165.65 and to date in the Queensland proceedings are $34,419.50. The plaintiff's costs of these proceedings are estimated at $46,136.52 and the Queensland proceedings at $15,803.96 to date. Family History 6 The deceased married Betty Carpenter in 1949 or 1950. The defendant was born 25 November 1953 and the plaintiff on 8 November 1957. 7 The deceased built the Engadine family home in 1960 and by 1972 things were not particularly happy in the household. In 1974 the deceased and his wife became estranged and they separated in 1975. The deceased's wife, Betty, remained in the house while the deceased moved to Hurstville. In 1978 the deceased and his wife were divorced. In 1978 the deceased moved back into the Engadine property and at this stage he was still estranged from the plaintiff who had sided with the deceased's wife in the divorce. 8 The defendant, Keith, married Dianna Burridge in 1978 but he separated from her in 1980 and was divorced in 1981. In 1980 the defendant commenced a de facto relationship with his present partner, Margaret Hargans. 9 On 13 February 1981 the deceased made his will which as I have already mentioned left his estate to the defendant. 10 Although there had been some rapprochement between the plaintiff and the deceased they became estranged again in 1984. 11 In 1986 the deceased retired from his employment and in 1987 he bought a property at Braidwood for $75,000.00 to which he moved. The purchase price came from his superannuation of $115,000.00. At that stage the defendant and his partner moved into the Engadine property where they still remain. They have expended $64,940.00 on renovations on the home and they have met all rates and expenses on the property during that period. 12 The plaintiff, Gregg, married on 25 February 1989 and was then living in Sydney. In 1992 he moved to Nowra about 100 kilometres or so from where the deceased was then living at Braidwood. By this time the plaintiff had children and it is clear that there were some visits to the deceased in the 1990s until the plaintiff moved in 1997to Queensland with his family. 13 In 1999 the defendant and his partner purchased a property at Batemans Bay for $193,000.00. In December 2001 the deceased sold his property at Braidwood for $120,000.00. He gave to his son and his partner $96,000.00 which was used to pay off their mortgage. On completion of the purchase of Batemans Bay the defendant then moved to live at the property at Batemans Bay. 14 In 2001 the deceased's wife, Betty, was diagnosed with cancer and on 5 February 2002 she made a will leaving her estate to the plaintiff. At almost the same time as Betty was diagnosed with cancer, the plaintiff's wife was also diagnosed with terminal cancer. Thereafter, the plaintiff, his mother and wife made arrangements for what should happen in the future. The plaintiff's mother sold her house for $170,000.00 and an amount was given to the plaintiff in the sum of $164,000.00. At his mother's request the plaintiff made substantial alterations to his home to make it look similar to his mother's home and she moved in there with the intention of being able to help look after the plaintiff's children. 15 The deceased's wife, the parties' mother, died on 7 May 2002 and the deceased himself died on 20 May 2002. 16 After the death of the deceased, the defendant and his partner sold the property at Batemans Bay for $290,000.00. Probate was granted in the deceased's estate on 15 November 2002. The summons in these proceedings was filed on 16 December 2002 and on 4 February 2003 the defendant filed an application in Queensland for provision under the Succession Act 1981 (Qld) in respect of the estate of his mother. 17 In February 2003 the defendant transferred the Engadine property into his name and that of his partner. They were both aware of the existence of the New South Wales proceedings at that time. In August 2003 the defendant ceased his employment because of problems with his knees and obtained a disability benefit. 18 On 30 August 2003 the plaintiff's wife, Dianna died. At the time of the hearing before me, the plaintiff was 46 years of age, his child Teegan 13 years, his child Breean 12 years and the defendant was aged 50 years. Eligibility 19 The plaintiff is an eligible person under the Act. In applications under the Family Provision Act the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 set out the two-stage approach that a Court must take. At page 209-210 it 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 for 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." The situation in life of the plaintiff Gregg Douglas Carpenter 20 The plaintiff is 46 years of age, single with the responsibility of looking after his two teenage daughters who are 15 and 12 years of age. The plaintiff owns his house at Northwood Close, Robina in Queensland which is unencumbered and is valued at $450,000.00. He owns a Toyota Hilux surf model motor vehicle worth $15,000.00, a caravan worth $17,000.00, bank accounts of $4,500.00 and superannuation entitlements which he estimates at $35,000.00. The plaintiff is also owed the sum of $10,000.00 by his girlfriend, Monique Fleming. They commenced a relationship in November 2003 and she maintains her separate residence and given the evidence it seems appropriate to have regard to her resources when considering the situation of the plaintiff. The plaintiff works as a cleaner for the Queensland Department of Health and has recently reduced his hours of work following the death of his wife so that he can spend more time looking after his two daughters. He estimates that his take home pay per fortnight will now be about $800.00.00. He also receives an allowance for caring for his daughters and a family tax benefit of $426.70 per fortnight. The plaintiff deposes to the fact that he finds it difficult to maintain the children on this income but he has given no details of the breakdown of his expenditure at the present time. Surprisingly, the plaintiff has in recent times spent sums of $6,000.00 and $1,500.00 on jewellery and other items on his girlfriend to whom he is not engaged. This does not seem to indicate a careful approach to the needs of himself and his children. 21 As I have indicated in the chronology, the plaintiff received $164,000.00 from his mother from the sale of her house. Unfortunately the plaintiff was not very satisfactory as a witness so far as his knowledge of his own financial circumstances was concerned. He endeavoured to explain this on the basis that he left his finances to his wife to manage. She had of course died before the hearing commenced. It seems that in addition to the sum of $164,00.00 there are other monies which make a total of $200,000.00 which the plaintiff received from his mother's estate. Apart from the extent to which these funds have resulted in assets now held by the plaintiff the significance of the provision from the mother is not important in this application. What is important are benefits received from the deceased during the lifetime of the plaintiff. As may be expected from the relationship to which I will turn in a moment there were no such benefits. There was no contribution by the plaintiff to the estate of the deceased. 22 It is necessary to consider the relationship between the plaintiff and the deceased. It is clear that from the time of the separation of his parents in 1975 the plaintiff took his mother's side and had no further contact with his father. He says that he re-established contact with his father in 1980 but gives no details. It is also clear that he agrees that he was estranged in 1984 from his father because of the court case for the property settlement between his parents. Contact was re-established in 1991 after the plaintiff sent a copy of a photograph of his daughter to the deceased. It appears from statements he made to the defendant that from that time the deceased was interested in his grandchildren. From comments he made to the defendant one sees a picture of that interest was more in his granddaughters than in his son, the plaintiff. A telling answer given by the plaintiff in his cross-examination was that he did not expect to be left anything by his father. He only expected that his father would look after the grandchildren. 23 In 1992 the plaintiff and his family moved to Nowra and he gave evidence of having visited the deceased at his home at Braidwood. There are a number of photographs in evidence which suggest half a dozen or so visits over the years. The plaintiff and his family moved to Queensland in 1997. After that time the plaintiff and his family visited the deceased in 1999 and circumstances prevented any further contact. 24 It is clear that after the divorce the deceased did not want to see his son Gregg, no doubt as a result of the bitterness at that time. There was a resumption of contact during the last ten years of the deceased's life and during this time the deceased enjoyed the company of his grandchildren. I have no doubt that the deceased was concerned for the plaintiff with his wife suffering from the same illness being suffered by his mother. 25 It is necessary to see how the plaintiff says he has been left without adequate and proper provision for his maintenance, education and advancement in life. The plaintiff has referred to these needs in his affidavits the most recent of which is his affidavit of 24 November 1003. In general terms these needs centre around sufficient funds to make adequate provision for his two young children. When assessing these needs it is important to realise that although the plaintiff has a legal responsibility to maintain his children while they are minors, his responsibility thereafter is somewhat different. In this case there has been no separate application by the plaintiff's children and it is important that under the guise of considering the plaintiff's needs that one does not consider the needs of some other person when they become an adult. The needs were expressed in submissions in the following terms: