New South Wales Supreme Court CITATION : Clarke v Clarke [2008] NSWSC 1130 HEARING DATE(S) : 28/10/08 JUDGMENT DATE : 29 October 2008 JURISDICTION : Equity Division JUDGMENT OF : Macready AsJ at 1 EX TEMPORE JUDGMENT DATE : 29 October 2008 DECISION : Paragraph 47 CATCHWORDS : Family Provision. Application under Family Provision Act by a daughter who was left nominal provision. Daughter's legacy increased. No matter of principle. PARTIES : Christine Clarke v Michael Clarke (Re estate of the late Janet Clarke) FILE NUMBER(S) : SC 2091/2007 COUNSEL : Mr B Sharpe for plaintiff Mr D Jay for defendant SOLICITORS : Turnbull Hill Lawyers Gain Kent McRae for defendant - 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ASSOCIATE JUSTICE MACREADY WEDNESDAY 29 OCTOBER 2008 1846/07 CHRISTINE CLARKE v MICHAEL CLARKE - RE ESTATE OF THE LATE JANET CLARKE JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Janet Clarke who died on 9 November 2006. The plaintiff is the adopted daughter of the deceased and the defendant is one of her sons. The other son has been given notice and makes no claim. The deceased husband pre-deceased her in August 2005. The last will of the deceased 2 The deceased made her last will on 13 July 2006. Under that will she appointed her son Michael Clarke the executor. She gave her property at Norfolk Avenue, Wagga Wagga to him to hold for his own son, Harold when he reaches 25 years of age. She gave the plaintiff a legacy of $10,000 and gave the residue of her estate to her son, the defendant. He makes no claim for further provision by way of cross-claim. The estate of the deceased 3 The house at Wagga Wagga has not been sold and is estimated to have a value of $250,000. Apart from some personal effects the balance of the estate after meeting administration expenses and an amount of cash totals some $69,450 65. 4 The defendant's costs are estimated in the sum of $35,000 and those of the plaintiff in the sum of $45,000. Family history 5 The deceased was born on 6 July 1935 and her son Harold was born in 1960. Her son Michael, the defendant was born on October 1961 and the plaintiff, Christine, was born but not to her in November 1965. 6 In 1966 early in the year Christine came to reside with the Clark family in their home at Wagga Wagga. In August 1972 Christine was formally adopted by Harold and Janet Clarke. 7 At about the time the plaintiff moved to Yarrawonga in Victoria and in 1979 the defendant moved out of home and went to live in Melbourne. In 1982 the plaintiff was attending a TAFE College in Wagga Wagga. 1984 the plaintiff and her parents moved to a residence at 36 Norfolk Ave, Wagga Wagga which the deceased owned at the date of her death. 8 In 1985 the plaintiff moved to Sydney where she started work as a live-in nanny. In the 1993 she commenced a relationship with Mark Serong. In 1998 the defendant had his son, Harry, who was born in May of that year. The plaintiff in 1999 married her husband Mark Serong. The following year in January 2000 Michael suffered an injury in an accident at home and he has been on a disability support pension since then. On 2 June 2001 the deceased and her husband had their 50th wedding anniversary, in which the plaintiff and other family members participated. 9 In September 2001 the plaintiff Christine and her husband had twins Dylan and Calais. Unfortunately in February 2004 the plaintiff and her husband separated. She then applied for public housing in Wagga Wagga. In 2005 as a result of efforts from a friend whom she met by a chance meeting, Mr John Couper, she managed to obtain accommodation in his house. She has to sleep on a couch in the living room and the children have a bedroom which they can share. 10 It is plain from the evidence they are not in a de facto relationship and that it is a platonic relationship to both parties advantage. 11 If February 2005 she was offered some housing accommodation in Wagga Wagga but declined as it was not in a suitable area. In March 2005 she was offered a further property but declined, basically because she was settled in where she was and she did not want the expense of moving again. That led to her being removed from the Housing Register as she had been offered a house twice. 12 In June of that year as the party's father Harold was in decline, Michael returned to assist in his care. 13 In the course of the plaintiff and her children living with John Couper they had an opportunity to accompany him on a holiday in Fiji for 10 days. This they did from June to July 2005. These holidays, which happened each year, were ones where he paid for the trip but they lived their own separate lives on holidays. Mr Couper had business interests for many years in Fiji. 14 In November 2005 Michael returned back to his home at Mullumbimby, and in December 2005 he came down again to assist in the care of his mother. She died on 9 November 2006. Probate was granted in January 2007 and on 16 March 2007 the plaintiff made this claim, which is within time. Eligibility 15 The plaintiff is an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 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 or 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." Plaintiff's situation in life 16 I turn to consider the plaintiff's situation in my life. The plaintiff is single, aged 42 with two dependent children who are now aged seven years and in second year of schooling. She is not employed and receives a single parents pension and family benefit of $1,000 per fortnight. Her husband has made minimal contributions of $400 since separation to the support of the children. Her expenses are $760 per fortnight. 17 Her assets consist of a 1998 Mitsubishi Magna motor vehicle worth approximately $4000; minimal savings and NRMA shares worth $6,500. She has an account for the children with the ING Bank which has about $7,000 in it. Her superannuation as at December 2006 was $14,929 51. She has debts for unpaid storage charges of $3,800 and a credit card on which she owes $560 but this is after, to use her expression "maxed out" in an amount of $1,500. 18 I have mentioned the fortunate circumstance that she was offered accommodation by John Couper. He assists her with some matters such as paying accounts by cheque as she does not have a cheque account, but she always repays him. He is shown as the children's guardian on the emergency contact document for the pre-school but he has no such legal position. It is just a matter of convenience as they share his house. 19 They live separate lives and Mr Couper often travels overseas without them. 20 There is no permanency to the accommodation and Mr Couper is 69 years of age. At any stage he could ask them to leave, although he does not intend to do so at the moment because he enjoys their company, notwithstanding that the plaintiff is at times moody. 21 There was some focus in this case on the relationship between the plaintiff and the deceased. The plaintiff came to live with the deceased and her husband when she was six weeks old. There is nothing remarkable about her relationship in the early years, or indeed when the plaintiff moved to Sydney to work. She would frequently go home on weekends. At times they lent her money to get her car fixed, which she repaid. There was the usual exchange of gifts and presents at birthdays and other occasions. 22 The plaintiff's wedding was accepted by the deceased and her husband and they paid for the reception. Difficulties seem to arise after the plaintiff's husband deserted her and this coincided with the decline in her father's health. By 2005 he was quite ill, although the deceased did not apparently convey the seriousness of this to the plaintiff. 23 There is evidence of complaints made by the deceased to others. For example, these include: (a) that the plaintiff went through her papers and asked for jewellery. (b) that the plaintiff used them as a babysitter for the children. (c) that she did not want to the plaintiff to stay any more and was changing the locks. (d) the plaintiff was always asking for money. (e) that she asked the plaintiff not to visit. 24 Notwithstanding these complaints, it is plain from the extensive correspondence between them that their relationship did continue, notwithstanding some arguments. The correspondence also demonstrated the deceased could also be quite abusive and obviously conversations some times ended up in this way. 25 Some of the problems and the deceased's desire not to allow the plaintiff to stay was probably due to the fact that as they got older her husband could not tolerate the young children in the house. There was a suggestion that the plaintiff took a necklace from the deceased. That was denied by the plaintiff and the evidence is so lacking that there is no reason to refuse to accept the plaintiff. The deceased could have mislaid it. 26 Over the last two years of the deceased life the plaintiff's telephone records disclose that she rang the deceased on at least 80 occasions. Some of these calls were up to 95 minutes duration. 27 Overall I do not think there is anything in the relationship which should detract from the plaintiff's claim. 28 The plaintiff did not contribute to the assets in the estate of the deceased. 29 It is also necessary to have regard to the situation in life of others having a claim on the bounty of the deceased. These are the defendant and his two children. The defendant's situation in life 30 Michael is 47 years of age, is married with two children from his first partner. His son Harry normally lives with his mother in Albury and is 10 years of age. In 2000 Michael had an accident and injured his hand. He can no longer work as a spray painter. His income is a disability pension of $547 per fortnight. 31 He has a car worth $20,000 and household furniture worth $5,000. He and his wife Sharon live in a Housing Commission home in Mullumbimby. 32 Michael had a good relationship with his parents and lived with them to help support them in the last year or two of their lives. Michael has received some benefits from his parents. He received a second-hand Holden sedan in 1996 and a contribution by way of a trade-in when he bought his last car. The situation in life of the grand children 33 Harry is 10 years of age and is in good health. He attends primary school and lives with his mother in Albury. She works as a receptionist, and her husband is a welder. Harry spent most of his holidays and his life with his grandmother and grandfather. These are occasions when the defendant would also attend so they can enjoy the company of his son. There plainly was a close bond when he was growing up between Harry and the deceased. 34 The other grandchild is Michael James Clark, who is a son of the defendant. He was born in September 1979. The defendant has not had any personal relationship with his son Michael, or any substantial contact with him, for about 15 years. Michael has apparently struggled most of his adult life with drug addiction and he has convictions for drug related crimes. 35 He lived with the deceased for about one year when he was about 15 years old. They never had custody of Michael Junior. He lived with them by arrangement with Michael Junior's mother when she was struggling with her own personal problems. 36 He did not have any real relationship with his grandparents after that period, except for the occasional letter. 37 No notice has been given to Michael and it is said that the last that was heard of him was he was in jail on remand somewhere in Victoria. Unfortunately proper enquiries as to his whereabouts were not made and it is not certain whether he can be located. Bearing in mind the amount of provision which I will be making for the plaintiff, there will still be some estate left for Harry which can also accommodate a provision for Michael which, on the facts before me, would be modest in the extreme or even not appropriate. It would not rank in priority to the claims of the plaintiff or the defendant. 38 In those circumstances I determined it is unnecessary to serve Michael Junior. Discussion 39 It is necessary to see how the plaintiff says she has been left without adequate provision for her maintenance, education and advancement in life. She puts forward the following: (a) the need to provide a home for herself and her children, and thus needs an appropriate amount to assist in the purchase of a home for $260,000 to $300,000. (b) To pay off her debts of $4300. (c) To purchase a second-hand vehicle for $25,000. (d) a fund for her children's education, including clothing and books. It was not quantified. (e) a fund for the plaintiff to undertake an office administration or IT course to update her computer skills. It was not quantified. 40 As far as the claim for a home is concerned, at present she would have no ability to borrow and she has made no enquiries about that matter. She does not have any job. 41 The principles in this regard were recently dealt with by Gzell J in McGrath v Eves [2005] NSWSC 1006. His Honour referred to the Court's approach to the question of moral duty when considering claims by children to be provided with funds for a house. He said: "67. When it comes to children, as Young J observed in Shearer v The Public Trustee, NSWSC, unreported, 23 March 1998, it has never been said by any Court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLF 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous. 68. In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109] - [110], White J having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this have occurred included Re Buckland, deceased [1966] VR 404 and Ogden v Green [2--3] NSWCA 352. 69. White J's decision was upheld by the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189. In the course of his judgement, Bryson JA at [31] pointed out that there were features to the case that were rarely encountered in claims under the Family Provision Act 1982 and rarely encountered together. First, the value of the shares designated as notional estate was very large in comparison with the estate is ordinarily encountered. Secondly, because the appellant was otherwise amply provided for, the further provision ordered by White J could have no adverse effect on her well-being. Thirdly, the applicant did not have any need in terms of lack of present provision for necessities and amenities of life on an ordinary scale of needs as understood in the community generally. 70. It was submitted that Mayfield was distinguishable by the absence of these features in instant circumstances and because the appellant in Mayfield had filed no financial evidence had put forward no competing financial or other needs for the Court to consider. 71. And there are differences of fact between Mayfield and the present case. But they do not have effect central proposition that there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That proposition was not criticised by the Court of Appeal. Indeed, at [32] Bryson JA observed that it was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision that Court ought to order." 42 In this case the modest size of the estate means such a provision cannot be made and, absent an ability to borrow, a contribution towards the purchase of a house is not appropriate. However, she may need some sum as a standby in order to rent premises if the present arrangements for accommodation were to cease. Certainly it would be necessary for her to have a new car. Her car is old and she has young children to transport to school functions and matters of that nature. Something would be appropriate to assist with the education of the children, and something for her education. 43 It is also apparent that Michael's medical condition is not good. It is unlikely he can work at his trade and he may have difficulty getting work. That matter was not explored at any length in the evidence. All he will get at present from the estate is a sum of $69,450 but in the ordinary course that would be all swallowed up in the costs of these proceedings. 44 In the circumstances, the costs ought to be a charge on the part of the estate passing to the grandson Harry. 45 I do not think in this case it is appropriate to cap the plaintiff's costs of $35,000 as submitted. The matter has had to be pursued because it involved an infant. The amount of Harry's share will, after costs and the sale expenses, be in the order of $160,000. 46 Bearing in mind the size of the estate and all the other relevant matters, most of which I have referred to in this judgement, I think that an appropriate provision for the plaintiff is an additional legacy of $90,000. 47 The orders I make as follows: 1. That the plaintiff in lieu of the provision for her in the will to receive a legacy of $100,000. 2. The plaintiff's costs on an ordinary basis capped at $45,000 to be paid out of the estate of the deceased. 3. The defendant's costs on an indemnity basis to be paid out of the estate of the deceased. 4. The burden of orders 1, 2 and 3 are to be borne by the share passing to the grandson Harry under clause 4 of the will. 5. I direct the exhibits be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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