Fraser v Fraser [2003] NSWSC 590

New South Wales Supreme Court

CITATION : Fraser v Fraser [2003] NSWSC 590 HEARING DATE(S) : 19 and 20 June 2003 JUDGMENT DATE : 2 July 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraphs 49 and 50

CATCHWORDS : Family Provision. Application by two adult children. Estate passed to widow who had been married to deceased for three years. Legacies given to plaintiffs. PARTIES : Colleen Marie Fraser v Judith Anne Fraser Keith Douglas Fraser v Judith Anne Fraser FILE NUMBER(S) : SC 3863/00; 4600/02 Mr P Lander for Colleen Fraser COUNSEL : Ms. J. Needham for Keith Fraser Mr J. Waters for the defendant Trenches for Colleen Fraser SOLICITORS : Tonkin Drysdale Partners for Keith Fraser Bamford Marcellos O'Connor for defendant

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

Master Macready

Wednesday 2 July 2003

3863/00 Colleen Marie Fraser v Judith Anne Fraser 4600/02 Keith Douglas Fraser v Judith Anne Fraser JUDGMENT 1 MASTER: This is an application under the Family Provision Act 1982 in respect of the estate of late Alfred Terence Fraser who died on 11 March 1993 and aged 48 years. The deceased was survived by his two children of his second marriage who are the plaintiffs in these two actions. The actions have been heard together with the evidence in one as evidence in the other. The defendant in both actions is the deceased's third wife. The deceased's last will 2 The deceased's last will was made on 26 November 1992. Under the will he appointed the defendant as his executor and in the circumstances which have occurred gave her the whole of his estate. He also appointed the defendant as the testamentary guardian of both plaintiffs. At the time of his death his children, who are the plaintiffs, were 11 and 10 years of age. Assets in the deceased's estate 3 At the date of his death the deceased had a number of investments which after allowing for liabilities amounted to $182,534.15. The deceased and the defendant jointly owned a home known as 81 Riviera Avenue, Terrigal and that home passed to the defendant by survivorship. They also owned a life-insurance policy having a value of $50,000 which also passed by survivorship to the defendant. Immediately prior to the deceased's death there was a purchase of $480,593.04 in various shares and investments in the name of the defendant. The funds for these purchases substantially came from a payout which the deceased received in respect of his claim under the Dust Diseases Act. The deceased had contracted mesothelioma and died as a result of this disease. The family history 4 I will deal with the chronology of the family history first by reference to the situation of the plaintiff, Colleen Marie Fraser. The deceased was born on 19 March 1944 and the defendant was born a 19 December 1955. The deceased first married in 1965 and had two children of that marriage. During the marriage the family home at 81 Riviera Avenue, Terrigal was purchased and constructed. 5 The defendant had married on 8 April 1972 and she had three children of her first marriage. The deceased married for a second time to Meryl Diane Fraser in 1975. There were two children of this marriage, namely, Keith Douglas Fraser who was born on 25 May 1982 and Colleen Marie Fraser who was born on 7 September 1983. Apparently the deceased's second marriage ended shortly after the birth of his daughter, Colleen, and his second wife Meryl Fraser died on 21 August 1988. 6 On 20 January 1990 the deceased married the defendant and they commenced to reside in the testator's home at 81 Riviera Avenue, Terrigal. The deceased's children, Keith and Colleen the children from his second marriage were also living at the home as was a child from the defendant's first marriage. It was in November 1992 that the deceased was diagnosed as suffering from Mesothelioma. 7 The deceased's last will was made on 26 November 1992 as I have already recounted. On 18 January 1992 the family home at 81 Riviera Avenue, Terrigal was transferred by the deceased to himself and the defendant as joint tenants, the consideration being expressed to be the natural love and affection between the parties. An award was made by the Dust Diseases Board on 20 January 1993 and the testator died on 11 March 1993. On 13 May 1993 the Dust Diseases Board made a lump sum award of $147,300 in favour of the defendant together with a continuing weekly award. There was also an award of weekly payments for dependant children. 8 On 9 July 1993 the defendant obtained a grant of probate of the deceased's will. The time for making the applications under the Act expired on 11 September 1994. The defendant had difficulty coping after the death of the deceased and in January 1996 Colleen was collected from a Christian youth camp at Toukley by her paternal grandmother, Anne Fraser and she commenced to live with her at her home at Swansea. In September of that year the Colleen moved to live with her half sister Michelle Britton at Chain Valley, New South Wales. At that stage she was 13 years of age. In October 1997 Colleen returned to Terrigal and stayed with the defendant for a short time. In November 1997 she moved to reside in Tasmania with her half brother Maurice Bradley and his family. Colleen and her brother, Keith, were both living with the Bradley family. In February 1998 the Bradley family with Colleen and Keith relocated to Lismore, New South Wales. 9 In 1998 the defendant purchased her present home at 24 Hennie Crescent, Ormeau, in Queensland. In 1999 she sold the family home at 81 Riviera Avenue, Terrigal. 10 In December 1999 Colleen returned with Maurice Bradley and his family to Devonport in Tasmania where they continued to live. She remained there until April 2000 when she moved into rented accommodation. Colleen's proceedings were commenced on 5 September 2000 and she attained her majority on 7 September 2001. She then elected to continue the proceedings on her own account. 11 Keith Fraser had attended Terrigal Primary School and Terrigal High School from 1993 until 1995 when he went to stay for a short time with this half brother Maurice at Devonport. However, that arrangement was not successful. In 1996 the defendant arranged for Keith to board at the Armidale School. He remained there for one year but then was asked to leave because of his behavioural problems. He returned to Tasmania to stay with Maurice Bradley and his family and completed Year 9 at Reece High School, Devonport. 12 In 1998 Keith relocated with the Bradley family to Lismore and started Year 10 at Lismore High School. Once again he was asked to leave school and did so. From the time he left home in 1998 and year 2000 he lived in various youth hostels, shelters and on the streets. In 2000/2001 he lived with his half brother, Alan, as well as staying at various hostels and emergency accommodation centres. After living in the Bayview Hotel for a while he moved to the Ocean Beach Hotel, Umina in January 2002. At the present time he is living in a flat on the Central Coast with his girlfriend but expects to be moved out later in the year when the holiday lettings occur. His application in these proceedings was filed on 13 September 2002. Extension of time 13 Because the applications are out of time it is necessary for the court to consider section 16 of the Family Provision Act which allows an application to be made notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said: "It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time." 14 In several cases His Honour Mr Justice Young has dealt with the principles governing application to extend time under this Act. In Massie v Laundy (unreported NSWSC, 7 February 1986) he indicated that when looking at 'sufficient cause" under 16(3) of the Act the factors which one looks at include the following:- (a) is the reason for making a late claim sufficient? (b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended? (c) has there been any unconscionable conduct on either side which would enter into the equation? 15 Apparently His Honour also accepts a view which was expressed by his Honour Needham J in Fancett v Ware (unreported NSWSC 3 June 1986) that there is no purpose in extending the time in respect of a claim which must fail. In Phillips v Quinton (unreported NSWSC 31 March 1988) Powell J when considering the matter at the substantive hearing inclined to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported NSWSC 8 September 1989). 16 In De Winter v Johnstone, a decision of the Court of Appeal on 23 August 1995, His Honour Powell J referred to this matter and in particular to the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23: "In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief." 17 Relevant matters to be considered in my general discretion include the reasons for delay and the effect of infancy. That these were relevant on the general discretion was assumed by Cohen J in Dare v Furness (supra) when he said at p.500: "This problem was referred to in the Report on the Testator's Family Maintenance and Guardianship of Infants Act 1916, by the Law Reform Commission of New South Wales (LRC 28, 1977) pars 3.4-3.10. It was said at par 3.4 that the court treats with sympathy applications by persons under legal disability for extensions of time for the commencement of proceedings. The commission was unable to establish what it considered to be an appropriate resolution of this difficulty. Despite the reference to the general attitude of courts to applications for extension of time on behalf of infants, it is not easy to find any authorities which deal with that situation. The mere status of a plaintiff as an infant is obviously not itself a sufficient cause for an application not being made within the prescribed period. In my opinion it is a factor which must be taken into account when the court is considering the sufficiency of the reason for delay in the bringing of proceedings. In particular, where a parent or guardian of the child has caused or contributed to the delay, but there are some reasons to explain it, then the fact that the child was at all times dependent upon the acts of that parent or guardian will be a fact to add to the reasons in considering whether there has been a sufficient cause shown for the delay."