Sharkey v Andrew [2007] NSWSC 28

New South Wales Supreme Court

CITATION : Sharkey v Andrew [2007] NSWSC 28

HEARING DATE(S) : 12/03/07

JUDGMENT DATE : 12 March 2007

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE : 12 March 2007

DECISION : Paragraphs 71 and 72

CATCHWORDS : Family Provision. Application under the Family Provision Act by a nephew of the deceased. Held plaintiff not a member of the household and therefore his claim fails.

PARTIES : Michael Thomas Sharkey v Cyril Douglas Andrew (Estate of the late Mary Isabell Sharkey)

FILE NUMBER(S) : SC 4452 of 2005

COUNSEL : Mr G McGrath for defendant

SOLICITORS : G.R. Locke for defendant

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

ASSOCIATE JUSTICE MACREADY

MONDAY 12 MARCH 2007

4452/05 - MICHAEL THOMAS SHARKEY v CYRIL DOUGLAS ANDREW - EXECUTOR OF THE ESTATE OF THE LATE MARY ISABELL SHARKEY

JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Mary Isabell Sharkey who died on 15 February 2004 aged 87 years. The deceased never married and had no children. The plaintiff is a nephew of the deceased. The Will of the Deceased 2 The deceased's last Will was made on 3 October 1996 and in that Will she appointed her cousin, the defendant, as executor. After providing for payment of debts and expenses, the deceased gave her estate to her niece Colleen Rose Adams, her niece Anne Violet Gibbs, her nephew Geoffrey Vincent Sharkey and her great-nephew Christopher John Sharkey, in equal shares as tenants in common. Estate of Deceased 3 The deceased's farm has been sold and the estate has been reduced to cash. The amount is presently $328,020.40. There are some minor administration expenses and taxation liabilities to be met and the defendant's costs to date in these proceedings are some $37,000. 4 The plaintiff does not have costs, he is self represented and has appeared for himself on the hearing today. Family History 5 The deceased was born on 24 June 1916 and the plaintiff's sister, Anne Violet Gibbs, who is a niece of the deceased and a beneficiary under her Will, was born on 30 July 1942. The plaintiff's sister Colleen Rose Adams, also a niece of the deceased and a beneficiary under the Will, was born on 6 April 1944. The plaintiff himself was born on 30 March 1950. He is now 56 years old and is the fifth child of the 13 children in the marriage of their parents, Angus Bede Sharkey and Joyce Lillian Sharkey. 6 From 1950 until 1963 the plaintiff lived with his parents and various siblings on his parents' dairy farm at Missabotti near Bowraville, New South Wales. 7 On Monday 24 May 1954 the plaintiff's brother Geoffrey was also born. He is naturally a nephew of the deceased and is a beneficiary under her Will. In 1958 the deceased's mother died and she and her brother remained living with the father on the father's farm at Upper Missabotti. 8 At some stage during that year the deceased took over the running of her father's farm which was some five kilometres up the road and separate from the plaintiff's property. By the plaintiff's property I mean that of his parents in which they and the many children lived for many years. 9 The plaintiff was educated at the local school and between 1963 and 1965 he was sent away from home to St John's College at Woodlawn near Lismore. After finishing high school he worked for two years with his parents on their farm and then he gained other employment. He worked for the PMG at the Bowraville Post Office. 10 In May 1967 the plaintiff's nephew Christopher John Sharkey, who is now 39 years of age, was born. He is a great-nephew of the deceased and another beneficiary under the Will. 11 In 1968 the plaintiff moved to Post Offices at Grafton and Bellingen. His father died on 23 November 1968 and between 1970 and 1972 the plaintiff had a number of transfers to Sydney, suburban Sydney and Queanbeyan. 12 He met his wife Christine Cooper in Queanbeyan and they were married on 5 January 1974. They have two children, Pheona born on 30 May 1974 and Darren in 1975. At that stage the plaintiff transferred from Queanbeyan to Singleton. 13 The plaintiff separated from his former wife in 1980 and their marriage was dissolved in 1981. At that stage the plaintiff was living in Gosford. In 1981 the plaintiff's mother sold her farm at Missabotti and went to live in Gosford with the plaintiff to help care for his son until the plaintiff's wife was awarded custody. 14 It is in this time from 1981 to 1983 that the plaintiff says that he lived with the deceased, his Aunt Mary as he referred to her, on her farm at Missabotti. I will come back to the detail of that in due course. 15 In early 1983 the plaintiff moved back to Sydney and worked with his sister before moving to Canberra and then back to Sydney. In 1986 the plaintiff formed a relationship with a friend Dario. 16 In 1987 Christopher John Sharkey moved back up from the Maitland area to live with the deceased and work at the local sawmill. He and his wife lived there for about 10 or 12 months until 1989 and then moved back to Sydney. At some stage in that time when he was there Christopher converted the dairy into a home for himself and his two children. 17 Geoffrey Sharkey moved back to live with the deceased on her farm between 1998 and 1999. They then bought a property about two kilometres away from the deceased's farm and moved there to live. 18 In the meantime Christopher bought a home at Nambucca Heads and occasionally visited the deceased at weekends until she moved into a retirement Lodge in 2003. In that year she spent some time in hospital before moving to the Lodge. By 2004 she was suffering from dementia, heart disease and other medical problems until she died on 15 February 2004. 19 It was on 2 October 2003 the plaintiff and his friend Pedro Carcharias travelled to Missabotti and there they met John Turner, one of the neighbours of the deceased, in circumstances to which I will return. 20 In December 2003 the plaintiff applied for a Guardianship order in respect of the deceased but that application was unsuccessful. 21 The Grant of Probate was obtained after the death of the deceased and these proceedings were commenced within time. Eligibility 22 The plaintiff is a nephew of the deceased. He claims to be an eligible person within paragraph (d) of that expression in the Act, as he says that: (a) firstly, as a child (from 1958 to 1963) he spent time overnight on weekends or school holidays on his grandfather's farm and was thus a member of the household; and (b) secondly, says that later on from 1981 to early 1983 he lived on the deceased's farm with her. He also says that he was partly financially dependent upon her from time to time. 23 I will first deal with whether he was part of the household of the deceased. He gave evidence that from 1958 he attended St Mary's Catholic School in Bowraville and lived with his parents. However, he says he spent weekends and school holidays at Aunt Mary's place, the deceased's, whose farm was about five kilometres up the road from his parents' farm. He says that during that time she paid him pocket money of two shillings a week. 24 Evidence was given by Geoffrey in these terms in his affidavit: "When we were children, I and my brothers and sisters all spent time, from time to time at the home of our grandparents and our uncles and aunts. When I was a child living at home my whole family regularly visited my father's parents' home for Sunday dinner. In addition, each of us children also went for short visits to stay at our grandparents' home at other times. On some occasions two of us children would visit at a time. I recall going on visits to my grandparents' home with the plaintiff. These visits were generally just overnight stays. In school holidays, however, we sometimes spent extra nights there. As a child the plaintiff did not stay at my grandparents' home or at Aunty Mary's home any more often or for longer periods than me or my brothers and sisters. My mother would not allow us to stay every weekend or for the whole of the school holidays". 25 Plainly, on his evidence, the plaintiff did spend some time with his Aunt during holidays. Geoffrey seemed to be a careful witness, however, he was four years younger than the plaintiff. He was still old enough to be able to recall his staying there during the holidays and this is important because the plaintiff was quite clear in his affidavit that no one else was living at the farm at the time he was there. 26 There was also evidence given by Anne Violet Gibbs, she was another niece of the deceased and one of the beneficiaries. She was born on 30 July 1942, was the second child in the plaintiff's family of 13 brothers and sisters. She also had a close relationship with Aunt Mary until her aunt died. Her aunt was in fact a bridesmaid at her wedding and godmother to her first child. 27 She was referred to the plaintiff's claim that he went and stayed alone at his Aunty's place. She says that, for instance, her sister Colleen went and stayed there for some 18 months when she went to school at one stage. She also says that that was the only one of her brothers and sisters who stayed there for any lengthy period of time. 28 Given her age, she would certainly have recollected if the plaintiff had stayed there for some time, perhaps in the holidays. She referred to this in more detail regarding holidays and said that after the grandmother and Uncle John died in 1958 the children all took turns in going to visit Aunty Mary to stay with her and comfort her. She says that Michael was not the only one nor was he the main one to stay with Aunty Mary at that time. 29 She also referred to the fact that Aunty Mary helped in the taking of children to hospital, not just for the plaintiff but also for everyone else. 30 Having regard to the fact that there is evidence from two children and particularly an older sister of the plaintiff who is likely to recall, I think the situation is that the plaintiff has exaggerated the extent of his stays when he says that he stayed every weekend and all the school holidays. The fact that he was prepared to deny that anyone else went there clearly indicates some exaggeration in this respect. 31 It is necessary for the plaintiff to establish that he is part of the deceased's household. There was an extensive discussion of the meaning of "household" in Kingsland v MacIndoe [1989] VR 273. It seems clear that the word in its ordinary sense is as set out in the Oxford dictionary: "The 'holding' or maintaining of a house or family; house keeping; domestic economy...the inmates of a house collectively; an organized family, including servants or attendants, dwelling in a house; a domestic establishment". 32 His Honour Mr Justice McLelland in Munro v Lake (unreported, NSWSC, 8 February 1991) dealt with the situation where a stepdaughter and her mother stayed with the deceased each weekend for several years. In that case he held that the plaintiff was not a member of the household as he found that there was no continuity and permanency of mutual living arrangements. 33 In Mankulin v Drew (unreported, NSWSC 12 August 1993) Young J dealt with the matter at some length. He said: "In Benny v Jones supra, I said that the question of what is a household in this legislation was awkward. I then reviewed a series of cases in Canada and North America dealing with exceptions to insurance policies whereby damage to member; of the insured's household are not covered. As I mentioned in Benny v Jones the cases have taken the view that one cannot have a household of one, a household involves the existence of a householder and that a household consists of the members who live in the domestic establishment including servants and attendants. The word is wider than family. In Wawanesa Mutual Insurance Co v Bell (1957) 8 DLR (2d) 577, 580, Rand J in the Supreme Court of Canada noted the difference between people who were in the household and those who were of a household. He said "The circle of those 'in' is larger than those 'of', a good example of which is furnished by the case of Home Insurance Co v Pettit 143 So 839 (1932). There the exception was of theft by a person 'in' the household of the insured and an uncle, temporarily a guest of the insured's father was held to be of that description." See also Calverley v Gore District Mutual Fire Insurance Co (1959) 18 DLR (2d) 598, 606, where a live in farmhand was held to be a person in the household but not of the household. In that case Schroeder JA in the Ontario Court of Appeal said that a person "'in the household' can more easily disengage himself from that relationship or association than a person who falls within the more intimate category ...". It is to be noted that in the instant statute the words are "of the household".In Kingsland v McIndoe [1989] VR 273, Gobbo J had to look at the words "member of the household" under the Victorian Crimes (Family Violence) Act. His Honour considered under that Act persons whose sole relationship was that of sharing a house did not qualify as members of a household. He did, however, thoroughly discuss the English, Australian and Canadian authorities on the meaning of the word "household".