Hughes v Charlton [2008] NSWSC 467

New South Wales Supreme Court

CITATION : Hughes v Charlton [2008] NSWSC 467

HEARING DATE(S) : 14/03/08

JUDGMENT DATE : 19 May 2008

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : Paragraph 78

CATCHWORDS : Family Provision. Claim by person as de facto partner or in a close personal relationship with the deceased. Held only close personal relationship. - Claim dismissed as sufficient provision made by deceased.

PARTIES : Juanita Claire Hughes v David Hamilton John Charlton and Peter John Halliday

FILE NUMBER(S) : SC 5228/2006

COUNSEL : Miss J Mundey for plaintiff Mr A Hill for defendants

SOLICITORS : Roger Wilkinson for plaintiff Priest McCarron for defendants

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

ASSOCIATE JUSTICE MACREADY

Monday 19 May 2008

5228 of 2006 JUANITA CLAIRE HUGHES v DAVID HAMILTON JOHN CHARLTON AND PETER JOHN HALLIDAY JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Allan John Halliday who died on 24 April 2006 aged 68 years. The deceased was survived by the plaintiff who claimed to have been living with him as his de facto partner and his son the defendant. The son was the child of the deceased's marriage to Susan Lauder who died before the deceased. The deceased made his last will on 9 February 2004 under which he provided that the plaintiff should have the right to reside in his property at Fitzgerald Avenue, Smithtown for her lifetime or until she ceases to permanently reside in the property. He also gave her a motor vehicle and a legacy of $5,000. The residue of his estate went to his son, Peter Halliday. In the event of the right of occupation of Fitzgerald Avenue ceasing, the property would pass as to one half to the deceased's son, Peter and one half to the deceased's surviving nieces and nephews. Estate of the deceased 2 The present net value of the estate is $836,029. This includes the deceased's home the subject of his bequest to the plaintiff worth $200,000, his property at Smithtown Road, Seven Oaks where the defendant lives worth $460,000 and a farming property valued at $120,000. The balance of the estate consists of stock plant and other personal property. The costs involved in the proceedings on the part of the defendant amounts to $49,000 and the plaintiff $44,000. Family history 3 The deceased was born on 24 September 1937. The plaintiff was born on 11 July 1945. According to the plaintiff she and deceased met as casual acquaintances in the early 1960s. The deceased married in 1976 and had two children Shane born in 1976 and Peter in 1978. Shortly after the Peter's birth the deceased and his wife separated and the children went to live with their mother. The children stayed with the deceased every second weekend and half the school holidays until 1987 when their mother Susan Halliday moved to Yamba. From that time Shane and Peter stayed with the deceased for the whole of the school holidays. 4 In her affidavit in chief the plaintiff says she and the deceased commenced cohabitation at his home at Fitzgerald Avenue, Smithtown from January 1992. At some stage during 1992, Shane ceased to live with his mother and commenced living with the plaintiff and deceased. At that time he was still at school. In 1995 he moved to Melbourne to take up an apprenticeship. Peter completed his HSC in 1996 and commenced casual employment as a farm hand. In 1999 he obtained full time employment in Dorrigo. 5 In 2000 the deceased became ill and was diagnosed with multiple myeloma. In 2001 the plaintiff in her affidavit in chief in a carefully crafted understatement of the truth, says she received $130,000 from the estate of her late cousin, John Lawrence. From those funds she purchased a property at Fitzgerland Avenue, Smithtown for $60,000 and paid a further $20,000 for the addition of a carport, a water tank and some furniture. 6 In late 2001 Peter began to live at the deceased's farm at Smithtown, Seven Oaks. In January 2002 his brother, Shane, died in a motorcycle accident. The deceased made his will on 9 February 2004 and he died on 24 April 2006. 7 The plaintiff's claim is that she lived with the deceased as his de facto partner until the date of his death. Given the extent of evidence in the matter I will also consider whether she might have had a close personal relationship with the deceased. In his submissions the defendant complained about this aspect being raised in the written submissions. These are proceedings commenced by summons and the defendant should be ready to deal with any claims which may arise on the case made in the affidavit materia. 8 Under the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 which took effect on 28 June 1999 there was an extension of the Act, which applied to proceedings that commenced after that date. The amended Family Provision Act incorporates the definition of a Domestic Relationship in the Property (Relationships) Act 1984. That act applies to domestic relationships which are defined in section 5: " 5. Domestic relationships (1) Before the purposes of this Act, a domestic relationship is: (a) a de facto relationship, or (b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. (2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care: (a) for fee or reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). (3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following: (a) a child born as a result of sexual relations between the parties, (b) a child adopted by both parties, (c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman: (i) of whom the man is the father, or (ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father, except where such a presumption is rebutted, (d) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998). (4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a parties to such a relationship." 9 It can be seen from the terms of section 5 (1) that a domestic relationship can be either a de facto relationship or a close personal relationship. 10 The definition of a 'de facto relationship' itself appears in section 4 and is in the following terms: " 4. De facto relationships (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons: (a) who lived together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether to persons are in a de facto relationship, all the circumstances of the relationship to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or inter-dependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. (3) No finding in respect of any of the matters mentioned in subsection (2) (a) -- (i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (4) Except as provided by sections 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship." 11 This definition, apart from the provisions of sub-clause (1) merely reflects the existing state of the law as it had been developed under the De Facto Relationships Act 1984 and the Family Provision Act 1982. See Light v Anderson (1992) DFC ¶95-120 applying Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677. 12 Apart from the exclusionary matters in section 5 (2) there is no definition of "close personal relationship". This phrase was recently considered by the Court of Appeal in Hayes v Marquis [2008] NSWCA 10 in regard to whether parties who have not lived together continuously could nonetheless still claim to be in a close personal relationship. McColl JA (with whom Beazley JA agreed) at [75] – [80] said: "Counsel did not identify any authorities in which detailed consideration had been given to the interpretation of a "close personal relationship" in s 5(1)(b). The immediate requirements of the relationship are that it is between two adults, whether or not they are related by family, who are "living together" and one or other of whom provides the other with "domestic support and personal care". It cannot be a de facto relationship, or a marriage (s 5(1)(b)), nor one in which the domestic support and personal care is provided in the circumstances set out in s 5(2). Thus the concept of "living together" will always be something different from living together as a couple, one of the critical requirements for a de facto relationship.