Published 30 Aug 2016
A Parramatta woman who was estranged from her father for 22 years has been awarded a family provision claim of $100,000.00. This matter was heard before Judge Stevenson. The deceased died on 17 November 2013 leaving behind 5 children. The children are as follows:
In his Will, the deceased stated the following:
“I do not wish to gift anything to my daughter Josephine because I feel that she has not shown any love or affection towards me nor the respect which I feel that a parent is entitled to during the last years of my life.”
A separate claim was commenced by Jack for which a settlement of $170,000.00 was agreed to. After taking out all associated costs, the value of the estate was estimated at $1.25 million.
The family migrated to Australia in 1969. After finishing schooling, the Plaintiff commenced employment. While each of the children were living at home and working, they were expected to hand over their wages to their parents to run the household.
In 1975, the deceased’s wife became ill, and the family returned to Sicily. She died in late 1975. The family returned to Australia thereafter.
Until 1980, Josephine stayed home to look after her father and brothers, she gave evidence stating:
“I took on all the cooking, cleaning, shopping, washing, ironing and all other household duties. I was not paid for this work as was the custom. It was just expected of me.”
She gave further evidence stating the following:
“I gave up part of my life to be treated as a slave by my brothers and my father. I had no help from any of them when I was at home. None of them.”
This was furthered by evidence given by the Plaintiff’s brother Jack, whereby he stated:
“She was more like a maid…than a sister.”
In 1981, the Plaintiff’s love interest, Mr Di Mauro, travelled to Sydney from Sicily. In 1982 an incident occurred at her family home whereby Mr Di Mauro announced his intention to marry the Plaintiff to the deceased. This resulted in both physical and verbal abuse towards the Plaintiff, from the deceased.
Within weeks of this episode, they moved to Sicily together and were married in 1982. They had two children together whilst in Sicily and did not return to Australia until 1991.
Upon their return to Australia, the deceased invited the Plaintiff to live with him at the family home. Within weeks of accepting the invitation, the Plaintiff gave evidence to the following extent:
“Relations got so bad that in or about June 1991 my father threw me and my family out of the family home. He said ‘you and your family have to leave this house. You have two or three weeks to move out.’”
Following this, the Plaintiff gave the following evidence:
“From the time my father threw us out of the family home, we had no contact with him whatsoever. There were no telephone calls. There were no cards or letter. He did not send any birthday of Christmas presents to my children. He did not attend their birthdays. He did not attend Christmas gatherings or other special occasions involving me.”
Thus, His Honour found that there had been approximately 4 or 5 months of regular contact with her father since 1981. Furthermore, the Plaintiff was not able to provide any assistance, comfort or companionship to her father in his declining years.
Financial Position of the Parties
Jack has previously settled his claim.
Josephine is aged 60 and has a net income of $39,500.00 per annum and superannuation of $87,800.00. Her husband has a net income of $34,400.00 per annum and superannuation of approximately $68,700.00. Between them they own a duplex with a mortgage of $197,000.00. The duplex is in disrepair and they have been given a quote in excess of $70,000.00 to make repairs.
Carmelo and his wife jointly earn $151,000.00 per year plus superannuation in the value of $542,000.00. They own three parcels of land in the order of $1.7 million.
Joe earns $60,000.00 per annum and owns a property to the value of $680,000.00.
Carlo is recently divorced, using the divorce settlement to purchase a property valued at $900,000.00.
His Honour formed the view that the Plaintiff:
“Gave up part of her life; especially in the years following the family’s return from Sicily. As her brother Jack said, during this period Josephine was more like a maid than a sister.”
Accordingly, His Honour was satisfied that the provision made for the Plaintiff in the Will of the deceased was not adequate. Having regard to the financial position of all parties involved, His Honour made an award for the Plaintiff in the amount of $100,000.00.