Supreme Court New South Wales Medium Neutral Citation: Sims v Mackowiak Mackowiak v Mackowiak [2011] NSWSC 1251 Hearing dates: 10 October 2011 Decision date: 08 November 2011 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: (1)The plaintiff Gemma Diane Sims shall receive: (a) a bequest of the estate's interest in the Glebe property; and (b) a legacy of $24,000 (2)The plaintiff Gemma Diane Sims must indemnify the estate in respect of any liability under the mortgage over the Glebe property from the date of this order onwards and from that date she is to have the benefit of any income received by way of rental from the Glebe property. (3)The application by Anna Mackowiak is dismissed (4)The plaintiff Gemma Diane Sims' costs on the ordinary basis and the defendant's costs on an indemnity basis be paid out of the estate of the deceased. In the claim of Anna Mackowiak, and subject to any submissions to the contrary, there be no order as to costs with the intent that each party bear their own costs. Catchwords: WILLS AND ESTATES - Succession Act 2006 - applications for family provision orders - application by de facto partner of deceased granted - claim by mother of deceased that she was dependent on the deceased - application by mother out of time and dismissed Legislation Cited: Succession Act 2006 Family Provision Act 1982 Cases Cited: Ball v Newey (1988) 13 NSWLR 489 Benney v Jones (1991) 23 NSWLR 559 Dare v Furness (1998) 44 NSWLR 493 Lewis v Lewis [2001] NSWSC 321 Massie v Laundy (unreported NSWSC, Young J, 7 February 1986) McKenzie v Baddeley [1991] NSWCA 197 Petrohilos v Hunter (1991) 25 NSWLR 343 Porthouse v Bridge [2007] NSWSC 686 Singer v Berghouse (1994) 181 CLR 201 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin 221 CLR 191 Category: Principal judgment Parties: Gemma Diane Sims (Plaintiff) Anna Mackowiak (Plaintiff) Roman Mackowiak (Defendant) Representation: Counsel: Mr J Kearney (Plaintiff Gemma Diane Sims) Plaintiff Anna Mackowiak in person Defendant in person Solicitors: Langes Lawyers (Plaintiff Gemma Diane Sims) Plaintiff Anna Mackowiak not represented Defendant not represented File Number(s): 2010/308995 2011/190749 Judgment 1This is the hearing of two claims under the Succession Act 2006 in respect of the estate of the late Peter Gregory Mackowiak who died on 17 September 2009 aged 32 years. The deceased was survived by Gemma Diane Sims, his de facto partner at the time of his death, who is a plaintiff in one of the proceedings, Anna Mackowiak, his mother, who is also a plaintiff in one of the proceedings, Roman Mackowiak, his father, the defendant in both proceedings and a brother Robert Mackowiak. Both matters have been heard together and I have ordered that the evidence in one matter be evidence in the other matter. Last will of the deceased 2The deceased Peter Mackowiak made his last will on 2 September 2009 shortly before his tragic death. Under that will he appointed his father, Roman Mackowiak, executor and trustee. He gave his property at xxxxxxxxx Street, Culburra Beach to his brother, Robert Mackowiak, and he gave the remainder of his property to his father, Roman Mackowiak. 3In his will he stated that he did not provide for his girlfriend, Gemma Diane Sims, as "we both entered our relationship with our own assets and interests and my girlfriend has the financial support of her family. My girlfriend and I had agreed to keep our property interests separate from each other". Assets of the deceased 4The deceased owned a 60% share as tenants in common with Gemma, in a property at Talfourd Street, Glebe ("the Glebe property"). The Glebe property appears to be valued at about $825,000 and a 60% share is $495,000. The share of the mortgage as at April 2011 attributable to Peter's 60% ownership is $323,362, leaving a balance of $171,638. 5There has been some rental income, and mortgage and utilities payments by the plaintiff and the defendant since the date of Peter's death. When one takes account of these receipts and payments the net available share of the estate comes to $138,680. 6The deceased also owned a property at Fairlands Street, Culburra Beach valued at $275,000 which is subject to a mortgage of $104,334 ("the Culburra Beach property"). After allowing for adjustments the net balance available is $159,905. 7The Culburra Beach property was purchased in about 2003, approximately one year before Gemma and Peter met. By the time Gemma and Peter bought the Glebe property in November 2008, Peter had nearly paid off the mortgage on the Culburra Beach property. However, he re-drew about $110,000 on that mortgage so to have capital to contribute to the purchase of the Glebe property. His father Roman claims, and I accept, that he lent Peter money so that Peter could repay enough of the mortgage over the Culburra Beach property to allow for this re-finance to occur. 8The deceased had a superannuation policy with Caresuper which has been quantified at $195,587. The trustee has finally decided to pay that sum to the estate and accordingly that sum forms part of the deceased's residuary estate. I note that the deceased's will explicitly includes "any monies held on my behalf in superannuation funds" in his residuary estate to be left to his father, Roman. 9At the date of the trial the estate held a fixed deposit in the sum of $17,732.18. 10The total of these amounts is $511,904.18. 11The deceased had other property which was held jointly with his parents and others at xxxx xxxxx Road, East Kurrajong and xxxxx Avenue, Carramar. The amount of the share passing to his joint owners is in the order of $200,000. 12The liabilities in the estate consist of funeral expenses of $42,097, which includes a four person burial plot and a wake at $1,458. 13Although Roman Mackowiak appeared in person at the hearing he did have solicitors representing him previously and an estimate of his costs would probably be about $20,000. Gemma's costs were estimated to be $73,529, although this was based on a three-day hearing and only one day was necessary. 14The total of these expenses is $137,084. History 15Peter was born in May 1977 in Poland. His mother and father migrated to Australia from Poland when Peter was 3 and a half years old. About a year later his brother was born. 16Gemma was born in April 1983. 17Peter lived with his parents in Australia and in either 2002 or 2003 he purchased the property at Culburra Beach with the benefit of a loan. He had paid most of the loan off by the time he and the plaintiff purchased their property at Glebe, referred to below. 18Peter and Gemma met in Sydney on 31 December 2003. In September 2004 Peter asked Gemma to move from Perth to live with him in Sydney. At the time they met, Gemma was 20 years of age and Peter was 26 years of age. 19Peter and Gemma started to live together in March 2005 and the following year in June 2006 Gemma completed her degree at Murdoch University in Perth. When Gemma returned to Sydney in about June 2006 they moved into a unit at Rosehill Street, Redfern. 20At this time Peter was studying for a Masters in International Business at Sydney University which he completed in June 2007. 21In August 2008 Peter and Gemma moved to a rented unit at Pitt Street, Redfern. Later that year they purchased the property at Talfourd Street, Glebe as an investment property. The property was let and the couple continued to live in their rented premises at Redfern. In September 2009 they executed an agreement recording their separate interests and giving various rights to each other to purchase on any sale of the Glebe property. 22On 19 July 2009 Peter left Sydney for a one week business trip to Hong Kong. He returned on 25 July 2009. Gemma did not accompany him. She went home to Perth for family reasons and then returned to Sydney. On his return to Sydney from Hong Kong Peter appeared physically unwell. He said he thought he had AIDS or some other illness and he was behaving in a paranoid manner about his illnesses or perceived illnesses. He saw about ten different doctors who were not able to diagnose any serious illness. 23In retrospect it was plain that during this time that Peter was suffering from a mental illness. Shortly before his death he was prescribed antidepressants which he stopped taking a day or two before his death. 24On 17 September 2009 he tragically committed suicide by hanging himself in a national park near Windsor. 25His death came as a terrible shock to his family and to Gemma. 26After Peter's death Gemma moved back to Perth to live with her family, where she remains living to the present time. She works in Perth at the Hyatt Hotel as a marketing executive. 27Probate was granted on 1 June 2010 to the defendant. Gemma received nothing from Peter's estate and on 16 September 2010 Gemma filed her summons. 28The proceedings by Peter's mother, Anna Mackowiak, who also received nothing from Peter's estate, were commenced on 10 June 2011, more than eight months out of time. 29Both plaintiffs seek an order pursuant to s 59 of the Succession Act for further provision out of the estate and notional estate of the deceased for their maintenance, education and advancement in life. Eligibility 30Section 57 of the Succession Act defines "eligible persons" who may apply for a family provision order. 31It is plain on the evidence that Gemma and Peter lived together as de facto partners for the last 4 and a half years of Peter's life. There was conflicting evidence about whether they would marry and their intentions to start a family in the near future. However, there is no doubt that Gemma was Peter's de facto partner at the date of Peter's death and therefore Gemma is an eligible person pursuant to s 57(1)(b). 32There is also the claim by Peter's mother. Anna's claim is put on the basis that she was part of the household of which Peter was a member and she was partly dependent upon him (s 57(1)(e)). There is no dispute that she was part of the household, as Peter lived with her while he was growing up and as an adult, until he moved out to live with Gemma. The critical question is dependency. 33In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. His Honour Samuels JA said the following at pages 490-491: "His Honour concluded that 'dependent' meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person', par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. 'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey L.J. In Lee v. Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probabilities'. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency." 34His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them, in the case of a joint mortgage, could have only received a partial benefit. At page 492 he addressed the argument in these terms: "Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v. Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v. Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is 'the actual fact of dependence or reliance on the earnings of another for support that is the test': per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v. Reeman (1973) 128 CLR 177 at 189. 'The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and, in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. " 35This passage emphasises the factual nature of dependency, be it financial or otherwise. 36In Benney v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional, resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of an emotional relationship between them. 37In Petrohilos v Hunter (1991) 25 NSWLR 343 the court once again considered the meaning of dependency. At pages 346-347 the court had the following to say: "I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v. Newey (1988) 13 NSWLR 489 at 491, that '"dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'. If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McLelland J said in Re Fulop Deceased or to 'other forms of dependance analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v. Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period." 38In McKenzie v Baddeley [1991] NSWCA 197, h is Honour Meagher JA, although in the minority, further discussed dependency and described it as "financial, economic or material dependency, not a mere emotional dependency". Importantly in that case, the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant "more than minimally" or perhaps "significantly". 39In Porthouse v Bridge [2007] NSWSC 686 Bryson AJ at [18] clarified that "The concept of dependency is a broad concept and is not limited to financial dependence". 40Dependency was said to be established by evidence given by Roman, Peter's father, that from time to time when his parents were short of money Peter would make gifts of money to them to assist them. The evidence in his affidavit of 11 April 2011, which cannot be tested, was as follows: "55. Throughout the last few years of his life the deceased would regularly give my wife and I cash to support us. This would involve cash amounts of between $100.00 and $300.00 at a time. In my work there were times when I had very little work and he would give me cash to enable my wife and I to get by. 56. Throughout the years I estimate that he would have given us around $30,000.00 57. These were not loans; my son was a very generous and loving person with whom my wife and I maintained a close relationship throughout his life." 41Anna also gave some evidence. In her further affidavit of 7 July 2011, it was as follows: "20. My husband Roman would usually give me money on a weekly basis in order to purchase food and household supplies. When Peter commenced working he was always offering to give me money, especially during the periods that Roman was not working. Peter would frequently ask me: "Are you OK for money? " or "Do you need money?" 21. I say that during the period from approximately 1999 until he passed away, Peter was usually providing me with cash amounts of between $400 - $500 which he would usually leave in an envelope in the kitchen about every couple of months. On the occasions my husband Roman was out of work or otherwise short of money, these amounts would be more. 22. When Roman and I went to Poland to visit my mother-in-law for her 80th birthday in or about 2004, Peter gave us about $6,000 to assist us." 42There is a problem when assessing this evidence because neither Anna nor Roman Mackowiak put on evidence about their financial situation except for what emerged in cross-examination and from the tender of their income tax returns. 43The evidence from their income tax returns demonstrated incomes for the last several years as follows: Year ended 30/06/10 Anna Mackowiak Roman Mackowiak $34,996 $34,986 Year ended 30/06/09 $41,054 $40,691 Year ended 30/06/08 $32,786 $32,344 Year ended 30/06/07 $25,490 $25,065 Year ended 30/06/06 $47,160 $47,036 44A family income of this magnitude for two people would not of itself bespeak a need for some supplement. As I mention later there were no mortgages on their many investment properties. 45In the absence of any evidence of Anna and Roman Mackowiak's financial commitments and a need for assistance at any particular time, I am not satisfied that Anna was dependent on her son, Peter. I note that in 2005 they both lent the deceased amounts totalling $22,500, only part of which was repaid by the date of Peter's death. Anna is therefore not an eligible person pursuant to s 57(1)(e). Extension of time 46There is another problem with Anna's application and that is that the application is out of time. 47Section 58 of the Succession Act relevantly provides: "When an application may be made (1)(...) (2)An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown ." (emphasis added) 48The Succession Act replaced the Family Provision Act 1982 ("the former Act"). Section 16(3) of the former Act provided that the Court could not allow an application to be made after the prescribed period unless the parties to the proceedings consented to the application being made out of time, or unless sufficient cause was shown for the application not having been made within that period. 49Cases interpreting the meaning of "sufficient cause" in s 16(3) of the former Act are helpful in the interpretation of that same phrase in s 58(2) of the Succession Act . 50In Lewis v Lewis [2001] NSWSC 321 Hodgson J commented on s 16(3) of the former Act and said at paragraph 83: "The wording of that provision is a little curious. If read literally, it would appear to be a tautology: the application was not made within the prescribed period, so in some sense there must have been sufficient cause for this to happen. The expression "sufficient cause" must be taken to mean "sufficient explanation" or "sufficient justification or excuse". The question then is, sufficient for what? Again, it cannot be sufficient for the application not having been made, because again that would seem to give rise to a tautology. Rather, it must be something like "sufficient in all the circumstances to justify the granting of an extension of time"." 51His Honour Young J in several cases has dealt with the principles governing applications to extend time under the former Act. In Massie v Laundy (unreported NSWSC, 7 February 1986) he indicated that when looking at "sufficient cause" under 16(3) of the former Act, the factors which one looks at include the following: (a) is the reason for making a late claim sufficient? (b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended? (c) has there been any unconscionable conduct on either side which would enter into the equation? 52There is a fourth factor, the strength of the plaintiff's case, that should also be considered on an application to extend time: Dare v Furness (1998) 44 NSWLR 493 at 500 per Cohen J. 53In Taylor v Farrugia [2009] NSWSC 801 at [14], Brereton J (also interpreting the former Act) made a distinction between the mandatory requirement that an " applicant for ... an extension ... demonstrate that he or she has sufficient cause for not having made the application within time" and discretionary considerations such as prejudice and unconscionable conduct. His Honour considered that in order to demonstrate sufficient cause "some explanation for the delay in making the application over that period" is required. 54The onus is therefore on the applicant for an extension of time to show sufficient cause. In this case, Anna Mackowiak gave no evidence as to the reason why her claim was out of time. In the circumstances of this case it is especially important that there be such an explanation. The circumstances include the fact that of course Anna and Roman Mackowiak are still living together and that Roman is the residuary beneficiary in respect of the deceased's property. As they are happily married, and are likely to remain married, the purpose of any claim by Anna, who herself may have needs as she suffers from Multiple Sclerosis, is somewhat doubtful. 55It was submitted that Anna's claim was opportunistic and not made in good faith. At the trial both Anna and Roman appeared in person. There was no direct cross-examination on this aspect so I am not prepared to accept this submission. However, given the absence of an explanation as to the delay in making her application, I am not satisfied that sufficient cause justifying the granting of an extension of time has been shown and I will not extend time. In the circumstances I consider it unnecessary to consider the other, discretionary, factors relevant to the assessment of an application to extend time. 56Nevertheless, I will consider Anna's situation in case someone else takes a different view as to whether or not she is an eligible person and whether time should be extended. 57Plainly, being Peter's mother, I would have thought factors warranting would have been established, as required by s 59(1)(b). Gemma Sims 58Gemma is 28 years of age, single with no dependents. She lives with in Perth, Western Australia, with her parents who fortunately do not charge her rent. 59Gemma's assets are her 40% share in the Glebe property which has a value of $114,425. She has a car worth $15,000 on which $4,000 is owing. She has superannuation of $27,000 and $4,000 in her bank account. 60As I have mentioned earlier, Gemma is employed and her current income is $1,900 net per fortnight. She has expenses of meeting the Glebe mortgage of $2,200 per month and personal expenses including expenses for her car. 61Her income from the Glebe property is $200 a week which contributes to the mortgage. 62Gemma also owes her father $58,000 for expenses relating to her relocation to Perth and some of her legal expenses in this case. 63The relationship between Gemma and Peter was a happy one. Indeed Gemma relocated from her home town of Perth in order to live with Peter. 64As is not unusual, there was some evidence of statements made by Peter to his parents and his brother about their future together. Not unnaturally they had not made up their mind about children and whether they would be married in the future. Peter's parents also made it clear that Peter was initially in love with Gemma. 65Gemma gave evidence in her affidavit filed 5 October 2011 that her and Peter began mixing their finances once they started living together. She stated: "13. ...I would make regular contributions to Peter's account to save, invest or use for our joint expenses if need be. After I started full time work I paid about $180 per week into his account. I purchased groceries as well and paid some entertainment expenses. These were not hard and fast rules but varied from time to time. Peter gave me the Personal Identification Number (PIN) for his account and he had the PIN for my account." 66The plaintiff submitted that her contributions to their communal life included her role as homemaker, doing most of the housework, furnishing the properties they had lived in, cooking, shopping and other household activities (transcript p52). They generally purchased furniture and whitegoods jointly. 67Plainly Peter and Gemma decided on a future which would include joint ownership of property and for this reason they bought the Glebe property. There were therefore direct contributions by both of them to that property. 68Gemma gave evidence that Peter had paid the stamp duty (about $40,000) and the upfront contribution to the purchase price ($70,000) on the Glebe property; that she had borrowed $300,000 and Peter had borrowed $340,000; that rental receipts from the Glebe property were used to make mortgage repayments. The balance of the mortgage repayments was made by Peter and Gemma in roughly 60/40 proportions. 69Other properties, such as the Culburra Beach property, were properties which pre-dated the relationship and it seems that Peter made repayments on that property without Gemma's financial contribution. On this point however, Gemma's evidence is that Peter's mortgage over the Culburra Beach property was originally about $190,000 and that Peter had repaid about $160,000 off the principal amount owing by 2008. She attributed this in part to their "far from extravagant" lifestyle between 2003 and 2008 which allowed them to "save a considerable sum". 70Gemma gave evidence of her contributions to the Culburra Beach property in her affidavit filed 5 October 2010. Whilst these were disputed by Robert and Anna in their affidavits, I accept that they occurred. Gemma was not cross-examined about these contributions. Gemma summarised her contributions as follows: "29. We travelled often to the Culburra Beach property...Mostly we spent our time there doing maintenance and making improvements. My father was a builder and I am quite familiar with undertaking home maintenance and improvements. I helped with the work in maintaining the gutters (such as repairs and replacing them). I replaced a door in the granny-flat and put up some room screening and sun screening. I undertook painting and gardening work there as well. We went there about five times per year, more so in the summer months. 71Roman gave evidence in his affidavit of 15 October 2010 about the contributions the family made to the Culburra Beach property: "13. ...The house was run down and neglected and in need of restoration...the four of us [Roman, Anna, Peter and Robert] would get together and support each other and put in a lot of hard work to restore Peter's great achievement, but I felt that it was my duty to help Peter and to pay for the restoration and see my son happy with his achievement. My cost added value to the property by around $30,000. The costs of these improvements included a new car port, a new fence, cutting of bushes, new floor boards and the painting of the rear decking. Anna Mackowiak 72Anna is 55 years of age and she is happily married to Roman Mackowiak, the defendant in the proceedings. 73Anna is not in employment and she does not receive a pension or government assistance. As I have mentioned she suffers from Multiple Sclerosis, a condition which has affected her for the last ten years. This means that she uses a wheeled walker to get around for short distances and a wheel chair for further distances. 74Anna owns a 50% interest in her matrimonial home at Waterside Crescent, Carramar which she owns as joint tenant with her husband. The property is valued between $500,000 and $550,000 and is subject to a mortgage. She also has a 25% interest in Quest Avenue, Carramar which she owns with her husband, the deceased Peter and her son, Robert. The property is valued between $400,000 and $450,000 and is not subject to a mortgage. 75There is also another property at Rimfire Close, Bossley Park. The property is owned by Roman and Anna Mackowiak and is valued between $430,000 and $450,000. Having regard to the fact that the income tax returns disclose no interest being paid on that property I am satisfied that it also is not subject to a mortgage. Although there was a mortgage registered on the title I would assume that it has now been repaid. 76Anna has no interest in another property at East Kurrajong although for some reason some of the rent is credited to her income tax returns. She has superannuation of approximately $30,000. 77There is no doubt that Anna was a devoted mother to her son, Peter. Roman Mackowiak 78Apart from his interest in the properties which I have discussed above when dealing with Anna, Roman also held with Peter a half share as joint tenant in a property at Bull Ridge Road, East Kurrajong. The property has been appraised over a range between $400,000 and $700,000 and is not subject to a mortgage. Robert Mackowiak 79Robert is 29 years of age and he is the younger brother of the deceased. In his only affidavit Robert does not set out his financial situation or his income. Plainly from his affidavit he was close to his parents and his brother, Peter, and he recounted many stories about the relationship between Peter and Gemma. 80Having regard to the fact that Robert has not put forward his financial circumstances for consideration by the court I would assume that he does not wish these to be taken into account. However, I do note that he has an interest in the xxxxx Avenue, Carramar property to which I have referred when discussing the family ownership of various properties. Discussion 81Given the young age at which Peter died so tragically, the situation that has occurred here is not a common one. We are concerned with a couple that lived together in a de facto relationship for some four and a half years. They lived a constructive life in which they decided to purchase property for their future together. This resulted in the purchase of the Glebe property. They had no children and they were both self-sufficient in the sense that they both earned a reasonable wage for their position in life. 82The fact that they lived together in a careful manner is indicated by the fact that Peter was able to substantially pay off the mortgage on the Culburra Beach property which had been purchased about one year before their relationship commenced. It was Peter's ability to pay off the mortgage which allowed the couple to use it as security to purchase the Glebe property together. 83The superannuation which is about to be paid amounts to $195,587. Gemma also had her superannuation which is her entitlement and which is substantially less due to her lower salary. Most of Peter's superannuation would probably relate to the period prior to the relationship with Gemma because he had been working for longer than she had. 84There is no evidence as to the period over which the superannuation of the deceased accrued. However, Peter was working full-time as an electrical engineer for the duration of his relationship with Gemma. He earned about $110,000 per annum plus a car allowance. This would equate to an annual contribution of approximately $10,000 annually based on the usual 9% employer contribution. Therefore about $40,000 of Peter's superannuation accrued during the time that he and Gemma lived together. 85While the deceased held a share in his family's company, which paid superannuation into a CareSuper fund, the plaintiff submitted, and I accept, that the $195,587 is Peter's superannuation, earned independently of the family company through his work as an engineer. 86The situation of Peter's mother and father is comfortable although sadly Anna Mackowiak suffers from the devastating disease of Multiple Sclerosis. Fortunately her husband and son will look after her in this regard. 87The deceased's mother and father have fairly substantial assets between them which will assist them to manage the future. 88Plainly Peter intended his brother Robert to have the Culburra Beach property and in my view Gemma's claim can only be modest. 89In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 set out the two-stage approach that a Court must take. These comments are equally applicable to applications for a family provision order under the Succession Act . At page 208 Mason CJ, Deane and McHugh JJ said the following: "It is clear that ... the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant." 90Therefore it is first necessary to consider whether Gemma has been left without adequate and proper provision for her education, maintenance and advancement in life. Gemma has been left with no provision under the deceased's will. In Vigolo v Bostin 221 CLR 191 the High Court discussed the basis on which a court could justify its interference in a deceased's testamentary capacity and confirmed that notions of "moral duty" were of value in the understanding of the legislative purpose. At 199-200 Gleeson CJ said: "The "testamentary duty" which justified legislative interference with a free exercise of testamentary capacity, that is, the duty of a man to make provision for his wife and children, was seen as a moral duty. The legislation was not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution. The legislative power was to make "proper" provision. Judicial explanation of what was meant by proper provision was based upon the idea of a moral obligation arising from a familial relationship. That is one of the fundamental ideas upon which the structure of our society is based." 91As to the nature of any family provision order in her favour, Gemma suggests that she would like the balance of the net interest in the Glebe property plus $100,000 from the superannuation money. This is put forward on the basis that she has a need for her advancement in life by the provision of some capital to assist her to establish her life. She does not feel that she should continue to live off the bounty of her parents and would wish to establish her own residence in due course. She also has incurred a number of liabilities as a result of Peter's death. 92I am satisfied that Gemma, as the deceased's de facto wife, has been left without adequate and proper provision for her education, maintenance and advancement in life and that therefore the Court can make a family provision order. 93I think that, bearing in mind the costs which Gemma has incurred as a result of the death of Peter, and, of course, her contributions during their short relationship, it is appropriate that she should have the remaining net interest in the Glebe property. This will give her the opportunity to advance her position in life. She will have to indemnify the estate in respect of any repayments in respect of that loan. 94Given the situation in which Gemma was left after Peter's death I think it would be appropriate for her to receive $24,000 as a legacy to help meet her debts. 95In addition her costs should be paid out of the estate. Orders 96I order that: (1)The plaintiff Gemma Diane Sims shall receive: (a) a bequest of the estate's interest in the Glebe property; and (b) a legacy of $24,000 (2)The plaintiff Gemma Diane Sims must indemnify the estate in respect of any liability under the mortgage over the Glebe property from the date of this order onwards and from that date she is to have the benefit of any income received by way of rental from the Glebe property. (3)The application by Anna Mackowiak is dismissed (4)The plaintiff Gemma Diane Sims' costs on the ordinary basis and the defendant's costs on an indemnity basis be paid out of the estate of the deceased. In the claim of Anna Mackowiak and, subject to any submissions to the contrary, there be no order as to costs with the intent that each party bear their own costs. ********** Amendments 02 December 2011 - removed street name Amended paragraphs: 2 02 December 2011 - removed street name Amended paragraphs: 80 02 December 2011 - vary order 2 by adding the words, "from the date of this order onwards and from that date she is to have the benefit of any income received by way of rental from the Glebe property". Amended paragraphs: 96 and coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2011