Cornford v Miller [2007] NSWSC 297

New South Wales Supreme Court

CITATION : Cornford v Miller [2007] NSWSC 297

HEARING DATE(S) : 28/03/2007 and 29/032007

JUDGMENT DATE : 30 April 2007

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraph 51

CATCHWORDS : Family Provision. Application by a de facto partner. No matter of principle. Order for small legacy.

PARTIES : Carmelita Cornford v Florence Miller

FILE NUMBER(S) : SC 6543 of 2005

COUNSEL : Mr R Hanrahan for plaintiff Mr J Wilson SC for defendant

SOLICITORS : Athena Touriki for plaintiff Michael Rogers & Co for defendant

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

Associate Justice Macready

Monday 30 April 2007

6543 of 2005 CARMELITA CAPUYAN CORNFORD v FLORENCE MILLER (Estate of the late Shimshoon Katcho Sheno) JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Shimshoon Katcho Sheno who died on 26 September 2005 aged 77 years. He was survived by the plaintiff who claims to have been living with the deceased as his de facto partner at the date of his death as well as his first wife and his five children from his first marriage. 2 The deceased had another marriage after his first marriage and before his relationship with the plaintiff. He was divorced from this wife and she cannot be found and, accordingly, I am satisfied that it is impracticable to serve her with a relevant notice under the Act. The will of the deceased 3 The deceased made his last will on 25 July 1991 under which he appointed the defendant, one of his daughters, as executrix. He provided that his estate be divided equally between his former wife, Juliet Sheno and his children, Lily Dayeh, Fred Sheno, Florence Miller, Violet Sheno and Helen Melsom. Assets in the estate 4 The deceased's property at 47 Franklin Street, Matraville, Sydney has been sold and the proceeds from the sale and the deceased's other savings and investments have been realised and amount to $804,617.95. There is also a motor vehicle, some personal belongings and jewellery which has been distributed to the beneficiaries. Costs associated with the hearing and the administration of the estate will need to be deducted from this amount. The costs involved in the administration of the estate, accountancy fees and the costs of the defendant's proceedings are estimated at $35,312.76. The plaintiff's costs are estimated at $24,115. In the event that the plaintiff is successful in her application the net distributable estate will be $745,190. Family history 5 The deceased was born on 5 October 1927 in Iraq. The plaintiff was born on 15 July 1951 in Ormec City Philippines. The plaintiff married Peter Cornford in Philippines on 9 May 1979 and they came to Australia later that year. They had three children. Christopher Cornford was born on 24 October 1980, Maria Cornford born on 21 August 1983 and Timothy Cornford born on 8 September 1989.

6 The deceased made his will on 25 July 1991 which was well before he met the plaintiff. 7 In 1994 the plaintiff and her husband ceased to live together but remained under the same roof at 14/81 Broome Street, Maroubra. The plaintiff asserts that she first met the deceased on 5 October 1995. According to documents of the deceased in which he recorded payments made to the plaintiff they first met on 8 November 1996. Although at times during the hearing the plaintiff reiterated that they met in 1995 by the time she was re-examined by her counsel she conceded that she might have been wrong about the year. On the documents in it is plain she met the deceased, as he suggested, on 8 November 1996. 8 It is also apparent from the deceased's notes that the plaintiff moved into deceased's home about 5 January 1997. There are a number of documents which the plaintiff signed when she stated she separated from her husband in January 1997. I therefore accept that plaintiff and the deceased commenced to live together at the deceased's home at 47 Franklin Street, Matraville, in early January 1997. 9 The plaintiff and the deceased continued to live 47 Franklin Street, Matraville while the plaintiff's children continued to live with their father, Peter Cornford at Maroubra.

10 In 2001 the plaintiff and the deceased travelled to the Philippines for a holiday to meet the plaintiff's family. The plaintiff's marriage to Peter Cornford was dissolved on 15 December 1998 without a property settlement and Peter Cornford died on 1 December 2002. 11 In January 2003, according to the defendant, the plaintiff returned to Maroubra to look after her children the youngest of which was 14 years of age. The plaintiff suggests that she continued to live with the deceased in the evenings and I will return to that claim later. Plainly on both cases the plaintiff returned to the deceased's home in December 2003 and remained living there until the death of the deceased on 26 September 2005. The Grant of Probate was obtained on 22 November 2005 and the present proceedings were commenced within time by Summons filed 28 December 2005.

Eligibility 12 It was conceded by the defendant that the plaintiff was member of the household of the deceased and was partially dependant on him, namely in respect of the accommodation and other benefits provided to her. The plaintiff also suggested that she was the de facto partner of the deceased and I will turn to that claim. 13 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 which are defined in s5 as follows: 5 Domestic relationships (1) For 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 party to such a relationship. 14 It can be seen from the terms of s5(1) that a domestic relationship can be either a de facto relationship or a close personal relationship. The definition of de facto relationship itself appears in s4 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 live together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are 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 interdependence, 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 section 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.

15 I turn to consider the matters referred to under the headings in the legislation. The duration of the relationship 16 The case is notable for the lack of supporting evidence for the plaintiff's story. Only one of the deceased's children lived in Sydney and the other children lived in Western Australia at the relevant time. It was submitted that I should be careful in accepting the plaintiff for a number of reasons. These included the fact that in her affidavit evidence the plaintiff insisted that she and the deceased first met in October 1995 and that they commenced to reside together in 1996. She maintained this evidence throughout most of her cross-examination but in her re-examination she reluctantly conceded that she might be wrong. In her affidavit evidence she suggested that since moving in with the deceased that they had lived together as a married couple. Without going into detail about what happened during 2003 it is plain that the deceased left for Fiji some time later that year and this was an exaggeration on her part. She also made what, on her evidence, was a false statement to Social Security about where her children lived during 1997. Other areas of her evidence such as her income are inconsistent within the same affidavit. Her tendency to advocate her own case appeared when she claimed in re-examination that she slept with the deceased every night and had sex with him every night. 17 Having regard to all these matters I have reservations about accepting the plaintiff's evidence. 18 The plaintiff's evidence on the period in 2003 was to the effect that she stayed with the deceased at night and that he drove her to Maroubra at 8am each morning where she looked after the children, taking the youngest child to school. After that she says they went back to the deceased's home until she collected the children after school. After looking after them she returned to the deceased's home where she slept with him. 19 The deceased was a person who recorded amounts he paid to the plaintiff and he also described the relationship in letters to his children. In a letter to his son written the day after Peter Cornford's death the deceased wrote advising him that Carmen was moving out to Maroubra to look after Timothy and the other children. In this letter the deceased appreciated his relationship with the plaintiff had been good and that the plaintiff had been good company, the only problem being that he would again be lonely and that no one would want anyone at the age of 75 years. In another letter of 14 January 2003 the deceased wrote to his son: "Her departure was very sad and sorrow for both of us but I encouraged the move out for she was with me for six years, it is very bad should anything happen because of unfair and unjust 'de facto relationships'. I do miss her very very much, she was a wonderful kid …?? my house is so empty without her, we do contact each other every now and then. I am very lonely, searching for company simply to talk." 20 The deceased then went on to talk about getting a tenant in the house who was there for some time during 2003. Other evidence is that the deceased went to the Philippines in search of a new relationship. Plainly the plaintiff has exaggerated her claim and I do not accept that she lived with the deceased during 2003. In my view the relationship ended at the beginning of January 2003 and resumed in December of 2003. In another letter on 18 May 2005 the deceased recorded that the plaintiff came back for the second time on 28 December 2003. The relationship continued after this time until the death of the deceased. The nature and extent of common residence 21 I have already dealt with this under the previous heading and I accept that the plaintiff and the deceased resided together in the deceased's home from January 1997 until early January 2003 and again from 28 December 2003 until the date of death. Whether or not a sexual relationship exists 22 The plaintiff gave evidence that she and the deceased did not engage in sexual relations for the first six months. After that he told her that he had difficulties because of an earlier prostate operation. According to the plaintiff she says that after the use of some injections they were able to have intercourse for a few months but after that they only engaged in oral sex. 23 According to the plaintiff they shared the same bed and in the absence of any other evidence that this was not the situation and bearing in mind the length of the relationship I am prepared to accept the plaintiff's evidence that there was a sexual relationship. The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties 24 The plaintiff and the deceased had no joint bank accounts and their financial arrangements were separate. However, there was dependence in that the deceased paid the plaintiff some $50 a week to assist her to look after her children. The ownership, use and acquisition of property 25 The plaintiff and the deceased bought no property together and the evidence is clear that the plaintiff did not contribute to the deceased's property. The degree of mutual commitment to a shared life 26 I have earlier quoted a letter in which the deceased described his relationship with the plaintiff. It seems plain from this letter and another letter dated 18 May 2005 to his son that they looked after each other without any arguments. The deceased regarded the plaintiff as good company during the years. In another note which was left by the deceased probably written after the death of the plaintiff's husband the deceased talks about the fact that he and the plaintiff enjoyed life together by going out and dancing. He seems to have been involved in helping her with social security matters. This evidence refers to a degree of mutual commitment to a shared life together. The care and support of children 27 Although the plaintiff had children the deceased was not involved with any parenting duties. The performance of household duties 28 The plaintiff seems to have performed most of the household duties although the deceased also shared these activities. The reputation and public aspects of the relationship 29 There is very little evidence, apart from the deceased's comments, on the public aspects of the relationship. 30 Apart from the year when they were separated and both having a separate life I think it is plain that the plaintiff and the deceased were living together as de facto partners. I do not accept the defendant's submission that the plaintiff was nothing more than a paid companion. In these circumstances it is not necessary to consider the question of whether there might be a close, personal relationship between the parties but I note that in some of his writings the deceased said that the plaintiff cooked for him and bathed him. 31 The plaintiff is an eligible person. The High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approached the Court must take. At page 209 it said: "The final 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 Ltd. The determination of the first stage in the two-stage process calls for the 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 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 a similar consideration. 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 have refused to make an order notwithstanding that the applicant is found to have been left without an 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." The plaintiff's situation in life 32 The plaintiff is 55 years of age and is single. She is now living in a 2-bedroom unit at Kingsford with her sons, Christopher and Timothy and she pays $150 a week towards rent. She provides Timothy with pocket money of $40 a week and she pays household expenses of about $50 a week. She pays these amounts from her pension of $599 a fortnight. 33 As the plaintiff was divorced from her husband at the date of his death she did not receive any benefit from his estate but her children who were the beneficiaries included her in the estate. As a result of this she received $98,000 in 2003. From that time the money the plaintiff has in banks has increased to $125,017. She owns some personal items and has three vacant blocks of land in the Philippines which she values at $3,000. The blocks were purchased many years ago with her husband. Given the passage of time since the purchase and the lack of any development the usefulness of the land would be limited and I accept the plaintiff's evidence that the land cannot be sold. 34 The plaintiff is in reasonable health but she cannot work and she has not worked for many years. She suffered from polio as a child which means she cannot lift heavy objects with her left hand. 35 As I have already indicated the plaintiff did not contribute to the estate. Although there were arguments from time to time about money the relationship seems to have been a happy relationship and the deceased regarded it as providing him with companionship for the years they were together. 36 It is also necessary for the Court to consider the situation in life of others who have a claim on the bounty of the deceased. In this case the relevant people are the beneficiaries, namely, the deceased's first wife and his five children from that marriage. Juliet Sheno 37 Juliet Sheno, the former wife of the deceased, is 77 years of age. She has savings of some $30,000 and a car worth $3,000. She has no other assets and receives the aged pension of $320 a fortnight. Her daughters support her by paying her rent of $150 a week. Lily Dayeh 38 Lily Dayeh is 60 years and divorced from her husband. She lives on her own near her mother in Maylands in Western Australia. She does not work and has a disability pension. She is overseas at the present time. She has two adult children one of whom Eaad has a mental health disability. The child Omar is 30 years of age and last year he suffered a brain injury as a result of a fall which leaves him intellectually impaired. He lives from time to time with Lily Dayeh but is presently living with his grandmother. Although he has gone back to TAFE he still has problems as a result of the fall. Lily does not have substantial savings. Fred Sheno 39 Fred Sheno, a son of the deceased, is aged 56 years and is separated from his wife. He resides in the property he and his wife own jointly which is worth $350,000. He has a car worth $6,000 and his household contents. There is a mortgage on the house of some $38,000 and he owes $2,500 on visa card. He supports his children aged 16 and 13 who are full time students. The youngest child lives with him. Fred had a close relationship with his father and visited him on about 15 occasions during the time he has lived in Western Australia. Although all except one of the deceased's children lived in Western Australia it seems clear they kept in touch with their father either by them visiting him or by him visiting them in Western Australia. Florence Miller 40 Florence Miller is 55 years and is married. She owns a home with her husband valued at $500,000 and three cars some of which are used by her husband and her children. She has an income of $55,000 per annum which is similar to that of her husband. They have a mortgage of $28,000. 41 Florence was chosen by the deceased to be the executrix of his estate. Violet Sheno 42 Violet Sheno is 50 years of age and is a widow, her husband having died three years ago. She has a home and substantial other assets all of which total $3,155,891. She says she had infrequent contact with her father up to the time of her husband's death. Thereafter she had frequent contact with him.

Helen Melsom 43 Helen Melsom is 46 years of age and is divorced. She has minimal assets with savings of about $2,000. She lives on a disability pension of $476 a fortnight and she has liabilities to the bank. Discussion 44 It is necessary to see how the plaintiff says she has been left without adequate and proper provision for her maintenance, education and advancement in life. 45 In her affidavit evidence the plaintiff's case was to the effect that she wanted to buy a unit and to this end she tendered evidence of the cost of units in the Matraville area which for a two-bedroom unit were between $325,000 and $385,000. In her affidavit evidence she conceded that she could not borrow to buy a unit and accordingly she wanted sufficient funds for her to be able to purchase it outright. This primary claim of the plaintiff has to be seen in the light of the relationship which she had with the deceased which was that she was his de facto partner for the times which I have indicated earlier. The question of the proper provision for de facto partners has been dealt with recently. In Marshall v Carruthers [2002] NSWCA 47 Hodgson J had the following to say [63-65]: "The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One factor which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased.

The Master referred to the following statement of principle which appears in Luciano v Rosenblum [1985] 2 NSWLR 65 at 69 It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies. I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion, it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage occasioned by the greater responsibility which women often take in looking after children. That factor is of course absent here."

46 In the present case it is notable that the plaintiff has not contributed to the estate of the deceased and that the relationship was for a short time. The deceased and the plaintiff had no children together and the type of contribution which a de facto partner sometimes makes is absent in this relationship. In these circumstances and, bearing in mind the claims of the deceased's children and the former wife of the deceased all except one of whom are in difficult circumstances, I do not think it is appropriate that provision be made for the plaintiff to purchase a unit. 47 As an alternative claim the plaintiff put forward a claim for a legacy to assist her in her present difficult living situation. The plaintiff is living on a disability pension and she is unlikely to work in the future. She still has a responsibility to one of her children to whom she provides $40 a week pocket money. She does have a small amount left over from her pension after paying her liabilities but it is only a small amount. She is able to live frugally as is demonstrated by the way in which her small cash reserves have increased since 2003. 48 In my view the plaintiff is entitled to some additional provision to provide her with some further security against unforeseen situations in the future. As I have mentioned she cannot work and she has no prospect of obtaining employment. 49 On the deceased's own documents the plaintiff was a good friend and a companion to him for the years they lived together and I accept the plaintiff that he promised to make some provision for her. 50 In the circumstances I propose to order a legacy of $75,000 out of the estate of the deceased. 51 The orders that I make are as follows:

1. That the plaintiff receive a legacy out of the estate of the deceased in the sum of $75,000. 2. That interest should payable on the legacy at the rate provided for under the Wills (Probate & Administration) Act as and from one month from today's date. 3. Subject to submissions, the plaintiff's costs on an ordinary basis and the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased. 4. Subject to submissions, exhibits may be returned. **********

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