Nicholas v Nicholas [2006] NSWSC 1244

New South Wales Supreme Court

CITATION : Nicholas v Nicholas [2006] NSWSC 1244

HEARING DATE(S) : 3 and 4 July 2006

JUDGMENT DATE : 22 November 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice McLaughlin at 1

DECISION : 1. I stand the matter over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes to reflect my foregoing conclusions, and, if desired, for argument as to costs.

CATCHWORDS : Succession. Family Provision. Claims by three adult children. Deceased and his wife were estranged at the time of his death. Deceased died before agreement with wife could be implemented. Entirety of estate passed to widow by survivorship. Notional estate. Prescribed transaction. Competing claim of estranged widow. Relatively short relationship and marriage.

LEGISLATION CITED : Family Law Act 1975 Family Provision Act 1982

Blore v Lang (1960) 104 CLR 124 CASES CITED : Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191

Alana Kim Nicholas (First Plaintiff) PARTIES : Karley Sherie Nicholas (Second Plaintiff) Tony Alan Nicholas (Third Plaintiff) Shareena Mae Nicholas (Defendant)

FILE NUMBER(S) : SC 6526 of 2004

COUNSEL : J. Trebeck (Plaintiffs) J. O'Connor (Defendant)

SOLICITORS : Kernans (Plaintiffs) Nash Allen Williams & Wotton (Defendant)

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

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 22 November 2006

6526 of 2004 - ALANA KIM NICHOLAS and ORS –v- SHAREENA MAE NICHOLAS

JUDGMENT 1 HIS HONOUR: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 2 December 2004 Alana Kim Nicholas, Karley Sherie Nicholas and Tony Alan Nicholas each claims an order provision for her or his maintenance, education or advancement in life out of the estate or notional estate, or both, of their late father Gary Alan Nicholas (to whom I shall refer as "the Deceased"). 3 The Deceased died, aged 47 on 27 September 2003, as a result of a boating accident on Tuggerah Lakes. He left a will dated 24 July 2001. No probate has been granted of that will, for reasons which will shortly emerge. Letters of Administration pursuant to section 41A of the Wills, Probate and Administration Act 1898 were on 31 March 2006 granted to the Plaintiffs, for the purpose of bringing the present proceedings. 4 The deceased had been married twice. Of his first marriage, to Mrs Kerrie Nicholas, were born three children, being the three Plaintiffs (to whom I shall, for convenience, and without intending any disrespect, refer by their respective first given names). Alana was born on 5 January 1979 and is presently aged 27. Karley was born on 29 February 1980 and is presently aged 26. Tony was born on 14 November 1982 and is presently aged 24. 5 Mrs Kerrie Nicholas died aged 40, on 15 January 1996, when the Plaintiffs were aged respectively, 17, 15 and 13. 6 After the death of his first wife the Deceased increased his consumption of alcohol. He also made a number of visits to the Philippines. The Deceased informed his children that a woman with whom he had had sexual intercourse in the Philippines had given birth to a son, Gary Jayson Lapitan, on 15 January 1997. Although the Deceased apparently expressed a degree of uncertainty as to whether he was the father of that child, nevertheless, he allowed his name to appear on the Certificate of Live Birth (Exhibit 1A) as being the father of Gary Lapitan. 7 It would appear that the Deceased visited the child on a number of occasions when he was in the Philippines and attended his christening. He took Tony to meet that child on the occasion in July 2003 when the Deceased and Tony together went on a trip to the Philippines. 8 Despite doubts which the Deceased may have expressed concerning the paternity of Gary Lapitan, nevertheless the registration of that child's birth disclosing the Deceased to be the father clearly supports the status of Gary Lapitan as an eligible person, being a child of the Deceased. That status has not been disputed by the Defendant. Any possible claim by Gary Lapitan, who is now aged nine, has been compromised by the payment to him by the Defendant, on behalf of the estate of the Deceased, in the sum of $40,000. 9 The hearing has proceeded upon the basis that the only eligible persons in relation to the Deceased are the three Plaintiffs, the Defendant and Gary Lapitan. It should be observed, however, that the Defendant's two children, Czarina Torres (known as Nina) and Joel Torres, came to Australia in March 2002 (when they were aged respectively 10 and almost 7) and resided with their mother and the Deceased from then until the Defendant and the Deceased separated in May 2003. Although those two children of the Defendant were throughout that period members of the same household of which the Deceased was a member, the evidence is silent as to whether they were partly dependent upon the Deceased. If so, they would be eligible persons within paragraph (d) of the definition of that phrase contained in section 6(1) of the Act. 10 The Defendant, however, has not suggested that her children are eligible persons in relation to the Deceased. Neither has such a suggestion been made by the Plaintiffs. 11 I shall, accordingly, proceed upon the basis that the only eligible persons in relation to the Deceased are the three Plaintiffs, the Defendant and Gary Lapitan. 12 The Defendant, whom the Deceased had met in the Philippines, arrived in Australia in March 1997, having been sponsored by the Deceased. She and the Deceased had met earlier in that year. The Deceased and the Defendant then resided together in a de facto relationship, at the residence of the Deceased at 27 Stewart Street, Killcare, which had been the family home of the Deceased, his first wife and their three children. 13 At the end of 1996, as her HSC examinations were approaching, Alana, accompanied by Karley, left the family home and moved into residence with a family of old friends who lived very close nearby. Tony remained in the family home with his father. Despite the fact that Alana and Karley had moved out of the family home, nevertheless the Deceased and his children retained close contact over the next few years, their relationship being regular, normal and appropriate. 14 After the Defendant moved into residence with the Deceased Tony continued to remain in the family home with his father. Subsequently, in early 2000, Alana moved back into the family home. 15 It was the evidence of the Plaintiffs that each had been informed by the Deceased in late 1999 that he and the Defendant had separated and that the Defendant had removed from his residence, and later that the Deceased and the Defendant subsequently reconciled in early 2000. The Defendant did not dispute her physical absence from the matrimonial home for a period of about six weeks in late 1999 or early 2000. However, she denied that she and the Deceased had separated, and explained her absence from the family home by saying that she had gone on a visit to the Philippines to see her own kinsfolk.