Thirkell v Cox [2010] NSWSC 99

New South Wales Supreme Court

CITATION : Thirkell v Cox [2010] NSWSC 99

HEARING DATE(S) : 23/11/09, 11/12/09

JUDGMENT DATE : 24 February 2010

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : Paragraph 64

CATCHWORDS : Family Provision. Claim by step-daughter. Short period of dependency. Held that plaintiff who lived with her father in the deceased's house was dependant on deceased. Order for modest provision.

PARTIES : Beverley Margaret Thirkell v Paul Ian Cox

FILE NUMBER(S) : SC 1963/08

COUNSEL : Mr R Marshall for plaintiff Mr TJ Morahan for defendant

SOLICITORS : Patey & Murphy for plaintiff McDonald Johnson for defendant

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

Associate Justice Macready

Wednesday 24 February 2010

1963/2008 Beverley Margaret Thirkell v Paul Cox (Estate of Laura Octavia Atkins) JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 ('the Act') in respect of the estate of the late Laura Octavia Atkins who died on 30 December 2006. The deceased was survived by her two sons, one of whom is the defendant in the proceedings. The evidence does not indicate whether the deceased's former husband is still alive. He was last seen after his separation from the deceased in 1958 when he went to live in Melbourne. I am satisfied that it is impractical to serve him with notice of these proceedings. 2 The plaintiff is a stepdaughter of the deceased. The deceased married the plaintiff's father late in life. The last will of the deceased 3 The deceased made her will on 10 July 2003. She appointed her son, Paul Ian Cox, the defendant, executor of her estate. In her will she set up a fund of $50,000 to provide for her disabled son, Norman Graham Cox. The residue of her estate was left to the defendant, Paul Cox, or if he predeceased her, his share was to go to her son, Norman Graham Cox. In default of Norman Graham Cox surviving the defendant, the estate would pass to the plaintiff Beverley Margaret Thirkell. Presently the defendant is entitled to the residue of his mother's estate. Assets in the estate 4 The estate consists of the deceased's property at Teralba Road, Broadmeadow valued at $280,000, furniture and a bank account of some $18,152. The defendant has added $32,000 of his own money to this amount and he has set up the trust fund for his brother pursuant to the will. 5 The defendant's costs are estimated at $32,725 and the plaintiff's costs are estimated at $48,400 on the basis that the matter was a one-day hearing. Unfortunately because of difficulty obtaining a witness the matter was adjourned for a further hearing. Family history 6 The plaintiff was born in May 1940. Her father was Stanser Roy Atkins, and her mother, Clarice May Atkins. She was one of four children. 7 The deceased married Norman Cox on 17 January 1942. He was a merchant seaman who spent about one week out of six at home while the rest of the time he would be at sea. 8 In 1952 the plaintiff's parents separated and her father Stanser was granted custody of the plaintiff and two of her three siblings. 9 In 1952 after the separation, the plaintiff, her brother Brian Atkins, her sister Faye Atkins and their father, Stanser, moved into the deceased's residence at Fullerton Street, Stockton. 10 In order to accommodate the people at Fullerton Street, Stanser Atkins built a room at the back of the house. Shortly after moving to the house Faye Atkins left to live with her mother while Brian Atkins moved in with his grandmother. The plaintiff and Stanser Atkins stayed on at the Fullerton Street home. 11 In December 1954 the plaintiff's parents were divorced. In 1954 or some time thereafter the plaintiff had fainting spells and she received treatment from a doctor that required her head to be shaved so she moved to live with her uncle and aunt at Mason Dieu near Singleton while her hair grew back. She remained with her aunt and uncle for about 9 months. She did not attend school in that year. 12 In January 1957 the deceased, her husband and Stanser Atkins moved to Hannell Street, Wickham. Later in 1957 they all moved to Sunderland Street, Mayfield when that was purchased on 23 August 1957. 13 The plaintiff says that she lived with the deceased when they lived at Hannell Street, Wickham and Sunderland Street, Mayfield. However her evidence on this aspect is a matter of contention in the proceedings. 14 In 1959 the plaintiff married Henry John Thirkell and she says she then moved out of the Mayfield property. 15 The deceased divorced Norman Cox on 11 May 1961. In the decree nisi Dovey J noted that: "The two children of the marriage reside with the Petitioner. Since the Respondent deserted the Petitioner on the 10 th October 1957 he has regularly supported the Petitioner and the children of the marriage."