Bezjak v Wyatt

[2018] NSWSC 199

Supreme Court

New South Wales

Medium Neutral Citation:

Bezjak v Wyatt [2018] NSWSC 199

Hearing dates:

13 – 14 December 2017

Date of orders:

28 February 2018

Decision date:

28 February 2018

Jurisdiction:

Equity

Before:

Hallen J

Decision:

Orders that the Plaintiff’s Summons be dismissed.

 

Orders that any argument as to the costs of the proceeding be listed on a date to be arranged when these reasons are published.

Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of how the costs of the proceedings are to be borne.

Catchwords:

SUCCESSION – Claim for declaration that the Plaintiff is a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death – Claim for family provision order –– Reliance on different categories of eligibility – Defendant denies that Plaintiff an eligible person within any category of eligibility – Defendant also denies that, if relevant, there are factors warranting the making of the Plaintiff’s application – Whether eligibility and factors warranting the making of the application established and, if so, whether an order for provision ought to be made.

Legislation Cited:

Civil Liability Act 2002 (NSW)
Family Provision Act 1982 (NSW)
Interpretation Act 1987 (NSW)
Property (Relationships) Act 1984 (NSW)
Relationships Register Act 2010
Succession Act 2006 (NSW)

Cases Cited:

Aafjes v Kearney (1976) 180 CLR 199; [1976] HCA 5
Amaca Pty Ltd v Novek [2009] NSWCA 50
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Armagas Ltd v Mundogas SA (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1
Ashton v Pratt (No 2) [2012] NSWSC 3
Ballard v Multiplex [2012] NSWSC 426
Bar-Mordecai v Hillston [2004] NSWCA 65
Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200
Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123
Bkassini v Sarkis [2017] NSWSC 1487
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Churton v Christian (1988) 13 NSWLR 241
Dakin v Sansbury [2010] FMCAfam 628
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Dion v Rieser [2010] NSWSC 50
Doshen v Pedisich [2013] NSWSC 1507
Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477
Foley v Ellis [2008] NSWCA 288
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Grey v Harrison [1997] 2 VR 359
Hayes v Marquis [2008] NSWCA 10
Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160
Hunter v Hunter (1987) 8 NSWLR 573
In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep)
Jonah & White (2011) 258 FLR 236; (2011) 45 Fam LR 460
Justyn Marcus Ng v Neville Mark Morgan; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536
Kay v Archbold [2008] NSWSC 254
Light v Anderson [1992] NSWCA 136
Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189
Lodin v Lodin [2017] NSWCA 327
Lynam v Director General of Social Security (1983) 52 ALR 128
Manuel v Lane [2013] NSWCA 61
McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82
Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Nominal Defendant v Cordin [2017] NSWCA 6
Nominal Defendant v Saleh [2011] NSWCA 16
Nominal Defendant v Smith [2015] NSWCA 339
Page v Page [2017] NSWCA 141
Palagiano v Mankarios [2011] NSWSC 61
Petersen v Gregory; Estate Glenn Alfred Petersen [2007] NSWSC 8
Piras v Egan [2008] NSWCA 59
Plunkett v Bull (1915) 19 CLR 544
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52
Re Fulop, Deceased (1987) 8 NSWLR 679
Richardson v Armistead [2000] VSC 551
Robson v Quijarro [2009] NSWCA 365
Russell v NSW Trustee and Guardian [2013] NSWSC 370
S v B [2005] 1 Qd R 537; [2004] QCA 449
Sadiq v NSW Trustee and Guardian [2015] NSWSC 716
Sadiq v NSW Trustee and Guardian [2016] HCASL 180
Sadiq v NSW Trustee and Guardian [2016] NSWCA 62
Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473
Sassoon v Rose [2013] NSWCA 220
Scragg v Scott [2006] NZFLR 1076
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Sgro v Thompson [2017] NSWCA 326
Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Skinner v Frappell [2008] NSWCA 296
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Smoje v Forrester [2017] NSWCA 308
Spata v Tumino [2018] NSWCA 17
Szypica v O’Beirne [2013] NSWSC 297
Thomas v The Times Book Co [1966] 2 All ER 241; [1966] 1 WLR 911
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Vaughan v Hoskovich [2010] NSWSC 706
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Webb v Ryan [2012] VSC 377
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; (2003) 77 ALJR 1598; [2003] HCA 48
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Wilcox v Wilcox [2012] NSWSC 1138
Wolff v Deavin [2012] NSWSC 1315
Ye v Fung [2006] NSWSC 243
Yee v Yee [2017] NSWCA 305
Zahra v Francica [2009] NSWSC 1206

Texts Cited:

R Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5(1) Aust J Leg Hist 5
P McClellan entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655
Shorter Oxford Dictionary (2007)

Category:

Principal judgment

Parties:

Brigita Bridget Bezjak (Plaintiff)
James Rolin Wyatt (Defendant)

Representation:

Counsel:
Mr T J Morahan (Plaintiff)
Mr N Bilinsky (Defendant)

  Solicitors:
Capital Lawyers (Plaintiff)
McPhee Kelshaw Solicitors (Defendant)

File Number(s):

2016/318272

Judgment

1. HIS HONOUR: Peter Frederick Wyatt (“the deceased”), who was also known as “Wyatt” or “Wyatt Walker”, died on 13 December 2015, aged 69 years.

2. By Summons filed on 25 October 2016, Brigita Bridget Bezjak, the Plaintiff, sought an interim order restraining the distribution of the estate of the deceased; a declaration that she is a person with whom the deceased was living in a de facto relationship at the time of his death; an order that she is entitled to his real and personal estate; in the alternative, an order for provision for her maintenance, education and advancement in life out of the deceased's estate and notional estate pursuant to the Succession Act 2006 (NSW) ("the Act"); “further or other Orders as required”, and an order for costs. At the hearing, however, the Plaintiff limited her case to seeking the declaration referred to, seeking the family provision order, and an order that her costs of the proceedings, be paid out of the estate of the deceased.

3. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person.

4. The Defendant named in the proceedings is James Rolin Wyatt, the deceased’s younger brother, and the sole executor named in the deceased’s Will made on 8 August 2000. This Court granted Probate of that Will to him on 5 July 2016.

5. It was not in dispute that there was, or had been, a relationship between the Plaintiff and the deceased, some years before his death, but its precise nature, extent, and duration, was a hotly contested issue: T1.35 – T1.39.

6. Section 57(1) of the Act identifies various categories of “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person. As stated, there was dispute about whether the Plaintiff falls within the category of eligibility referred to in s 57(1)(b) of the Act, namely that she is a person who was living in a de facto relationship with the deceased at the time of his death. (It is not suggested that the Plaintiff and the deceased were married to one another, or that they are related by family. There is also no suggestion that the Plaintiff is a person who was in a registered relationship or interstate registered relationship with the deceased within the meaning of the Relationships Register Act 2010 (NSW).)

7. The Plaintiff also asserted that she is an eligible person within the category of eligibility referred to in s 57(1)(e) of the Act, namely that she is a person (i) who was, at any particular time, wholly or partly dependent on the deceased, and (ii) who was, at that particular time, or at any other time, a member of the household of which the deceased was a member. Her eligibility under this category also was in issue.

8. If she is found to be an eligible person by reason only of sub-paragraph (e) of the definition of "eligible person" in s 57(1), the Plaintiff will also have to establish that, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application: s 59(1)(b) of the Act. In the event that she established eligibility under this category, there was a dispute about whether there are any such factors.

9. The Defendant sought an order that the Summons be dismissed.

10. The parties did not agree that if the Plaintiff was successful and a family provision order was made for her, the usual order for costs should be made. However, they did agree, if the Plaintiff was unsuccessful, that she should bear her own costs of the proceedings. The Court was informed that there is a document that may be relevant on how the costs of the proceedings ought to be paid. This document may be relevant, if she is unsuccessful, on how the Defendant’s costs are to be borne, and the basis upon which those costs should be calculated.

11. It was not in dispute that the proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

12. At the commencement of the hearing, the parties also agreed that there was no property that was sought to be designated as notional estate of the deceased. Accordingly, hereafter, it is only necessary to refer to the estate of the deceased. They also agreed that there is no scope for the operation of the intestacy rules so that, hereafter, it is only necessary to refer to the Will of the deceased.

Factual Background

13. In a claim for a family provision order, factual context is necessary. It is convenient, first, to give a short statement of the background facts, since these provide that context. Many of these facts are taken from the affidavits read in the proceedings and are not in dispute. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.

14. The deceased was born in June 1946. He was the son of Sheila and Rolin Wyatt. His father died in about 1993 and his mother died in about 2009.

15. The Defendant was born in July 1950, and is now 67 years old. David Jefferson Wyatt, the deceased’s other brother, was born in December 1942, and is now 75 years old. He played no part in the proceedings. (There was a third brother, Dennis Wyatt, who died in 1945.)

16. The deceased was married to Kim Kucera between 1976 and about 1990. There were no children of their marriage.

17. By his Will, the deceased left certain items of personal property (of sentimental, value) to his two brothers, David and the Defendant, and to his nephews, Adam and Sam Wyatt, and his niece, Orowon Wyatt. After the payment of his just debts, funeral, and testamentary expenses, the deceased left the rest and residue of his estate to Susan Gai Shields, who he identified in the Will, as “my spouse”. However, they were not ever married, but as will be read, they had been living in a de facto relationship from 1993 until 2007.

18. At the commencement of the hearing, the parties agreed that the bequests of personal property made to the family members of the deceased should be distributed to each of them pursuant to the terms of the deceased’s Will.

19. In an affidavit affirmed on 10 February 2017, the Defendant disclosed that the deceased had left an estate with an estimated, or known, value, at the date of death, of $658,645. The estate was said to consist of real estate in Binalong, New South Wales (“the Binalong property”) ($550,000) and money in bank accounts ($108,645). (I have omitted, and shall continue to omit, any reference to cents in amounts to which I refer. This will explain any apparent mathematical miscalculations.)

20. At the date of the hearing, the deceased’s estate consisted of the Binalong property ($550,000), monies held in the trust account of the Defendant’s solicitors ($8,366) and cash in bank ($130,772). Thus, the current gross value of the deceased’s estate, at the date of the hearing, was estimated to be $689,138.

21. The Binalong property is to be sold and the costs and expenses of sale are estimated to be about $15,000. There is a debt to be paid out of the estate (for amongst other things, rent on a storage unit) of about $4,730.

22. The Defendant gave evidence that he intended to make a claim for executor’s commission. For the purposes of calculations, the parties accepted that commission of up to $6,000 may be allowed, if his claim is successful.

23. Usually, in calculating the value of the deceased's estate finally available for distribution, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing that estate, irrespective of the outcome of the proceedings, normally will be entitled to an order that his, or her, costs, calculated on the indemnity basis, should be paid out of the estate: see, Chan v Chan [2016] NSWCA 222, Basten JA, at [54].

24. In an affidavit sworn on 8 November 2017 by Mr P Crabbe, the Plaintiff’s solicitor, the costs and disbursements, calculated on the ordinary basis, of the Plaintiff, up to and including a two day hearing, were estimated to be $45,281 (inclusive of GST). Counsel confirmed that no amount has been paid on account of those costs and disbursements. He also informed the Court, without objection, that there was no conditional costs agreement made between the Plaintiff and her solicitors: T4.30 – T4.34.

25. In an affidavit sworn on 1 December 2017 by Mr S J Nicholson, the Defendant’s solicitor, the costs and disbursements, calculated on the indemnity basis, of the Defendant, up to and including the two day hearing, were estimated to be $65,796 (inclusive of GST). In an affidavit, sworn on 3 November 2017, the Defendant stated that various costs and disbursements had been paid out of the estate. At the hearing, counsel for the Defendant informed the Court, without objection, that the amount that had been paid out of the estate was $30,242, leaving $35,554 left to be paid on account of the Defendant’s costs and disbursements (if the estimate of those costs proves accurate).

26. Using the above estimates as a guide for the purposes of calculating the value of the estate available, out of which an order for provision might be made, the parties agreed that if, from the gross estate ($689,138), the costs and expenses of sale of the Binalong property were paid ($15,000); the debts were paid ($4,730); the claim for commission was successful ($6,000); and if costs orders, in favour of both parties, were made ($80,835), then the net distributable estate, would be about $582,573.

27. The only persons described as eligible persons, within the meaning of the Act, by the Plaintiff, are the parties, David, Adam, Orowon, and Sam. However, there is only evidence that the Plaintiff is, or may be, an eligible person. I have earlier noted that there is a dispute about her eligibility.

28. Only the Plaintiff has commenced proceedings. Ms Shields, who may be an eligible person, has not commenced proceedings, but she is the sole residuary beneficiary named in the Will of the deceased and has advanced, amongst other things, her financial circumstances as a competing claimant on the bounty of the deceased.

29. The Court may not disregard the deceased's freedom of testamentary disposition and the preferable disposition to Ms Shields, regardless of her financial position or needs. Section 61 of the Act specifically provides that interests, as a beneficiary, cannot be disregarded, even though the beneficiary has not made an application. I shall not, however, disregard the interests of Ms Shields, as the residuary beneficiary. (Since each of the legatees is to receive his, or her, entitlement, respectively, under the deceased’s Will, I propose to disregard his and her position, if each is an eligible person, or as a beneficiary.)

30. Ms Kucera, as a former spouse of the deceased, is also an eligible person. In an affidavit sworn on 14 December 2017, Mr Nicholson deposed to having spoken with her, by telephone, the night before, informing her of the proceedings and telling her that “you would be eligible to make a claim”. Her response was “I would not dream of claiming. My property settlement with Pete was perfectly adequate. I have no interest in a claim. I am staggered I could even make one.”

31. Even though Ms Kucera was not served with a notice of the application, and of the Court's power to disregard her interests, in the manner and form prescribed by the regulations or rules of court, I am satisfied that it is unnecessary to serve such a notice upon her. In the circumstances, I propose to disregard her interests.

32. The residuary beneficiary, Ms Shields, was born in August 1948. She met the deceased in about 1975, but it was not until early 1991 that they commenced a romantic relationship. (The deceased was married to Ms Kucera during most of the intervening period.) They remained in a de facto relationship until about 2007.

33. The Plaintiff was born in June 1975. She met the deceased in about July 2007 when she attended the Yass Youth Centre to apply to be a volunteer there. The deceased, at that time, was working there as the Youth Worker Co-ordinator. I shall return to my findings regarding the history of the Plaintiff and the deceased later in these reasons.

34. Binalong is a village in the Southern Tablelands of New South Wales, approximately 37 kilometres north-west of Yass, in the Yass Valley Shire. The deceased purchased the Binalong property, which comprises about 34 acres, in about 1994. There is constructed on the property a “yurt” and surrounding garden. The deceased and Ms Shields were the persons who were involved in the work done on the Binalong property.

The Issues

35. Section 59(1) of the Act confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly, the court is satisfied as to three matters, namely that:

1. the Plaintiff, the person in whose favour the order may be made, is an eligible person;

2. if she is an eligible person by reason only of s 57(1)(e), having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application;

1. at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made by the Will of the deceased.

36. Once the Court’s power is enlivened, it may make “such order for provision … as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made” (s 59 (2)).

37. The Defendant submitted that even if the Court were satisfied about the necessary matters, it should not, as a matter of discretion, make a family provision order in favour of the Plaintiff.

38. Next, I shall deal with each of these matters by reference to the Act and its legal context. (Depending upon the result of the proceedings, it may also be necessary to determine, in a subsequent judgment, what order for costs should be made.)

Eligibility

39. In New South Wales, the Act provides a multi-category based eligibility system. There are six categories of persons by, or on whose behalf, an application may be made. The language of the relevant sub-sections is expressive of the person’s status, as well as her, or his, relationship to the deceased. There is no age limit placed on an eligible person making an application.

De Facto Relationship

40. As stated, s 57(1)(b) of the Act provides that an eligible person is a person with whom the deceased person was living in a de facto relationship at the time of the deceased's death.

41. I discussed the relevant principles in Sadiq v NSW Trustee and Guardian [2015] NSWSC 716. The orders made were the subject of an appeal (which was dismissed). The Court of Appeal did not identify any part of what had been written on the principles as in error: Sadiq v NSW Trustee and Guardian [2016] NSWCA 62. An application for special leave to the High Court was dismissed upon the basis that any appeal would not enjoy sufficient prospects of success to warrant a grant of special leave: Sadiq v NSW Trustee and Guardian [2016] HCASL 180.)

42. There is no definition of “de facto relationship” in the Act. However, the expression “de facto relationship” is now common parlance in Australia. As Lindsay J wrote in Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477 at [35]:

“The statutory concept of ‘a de facto relationship’ is not far removed from the common understanding of such a concept in Australian society. The expression ‘de facto relationship’ evolved, in common parlance, as both a comparison, and a contrast, with the relationship of marriage. A ‘de facto relationship’ was, in ordinary parlance, a relationship which exhibited the characteristics of mutual commitment familiar in a relationship of marriage, save for the solemnities involved in a formal exchange of wedding vows: Thompson v The Public Trustee of NSW [2010] NSWSC 1137 at [74]. Significantly, however, the current legislation does not, in terms, refer to parties ‘living together as husband and wife’; there is nothing that necessarily ties the concept of ‘a de facto relationship’ to that of a formal marriage.”

43. Nor is there a precise test, identified in the Act, for determining whether such a relationship exists. However, the “Note” to s 57(1) provides that "De facto relationship" is defined in s 21C of the Interpretation Act 1987 (NSW).

44. Section 21C of the Interpretation Act, provides:

“(1) Meaning of "de facto partner"

For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if:

(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or

(b) the person is in a de facto relationship with the other person.

(2) Meaning of ‘de facto relationship’

For the purposes of any Act or instrument, a person is in a ‘de facto relationship’ with another person if:

(a) they have a relationship as a couple living together, and

(b) they are not married to one another or related by family.”

45. Also, the legislation has been recast, so that it no longer uses any reference to “husband and wife”, which terminology could lead to an inappropriate search for analogies to the legal relationship of marriage.

46. Section 21C(3) of the Interpretation Act, provides:

“(3) Determination of ‘relationship as a couple’

In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of their common residence,

(c) whether a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(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.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.”

47. It can be seen that the nine criteria referred to may be grouped into “private” ((c), (d), (e) and (f)), and “public” ((a), (b), (g), (h) and (i)), headings. They are no more than reminders, or indicators, of matters that are to be taken into account in deciding the question whether the parties lived in a de facto relationship: Piras v Egan [2008] NSWCA 59, per Campbell JA, at [146].

48. None of the matters listed are of decisive significance. The criteria are inclusive but not exhaustive. They all, however, suggest a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close the involvement in each other’s emotional lives, a conclusion that people are a couple living together involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element: Dion v Rieser [2010] NSWSC 50, per Bryson AJ, at [14].

49. The last paragraph of the section makes clear that the criteria are not to be weighed against each other and given individual weightings of importance. Ultimately, they may be used to assist in determining whether the parties were in “a relationship as a couple”. However, they should not overshadow that central concept.

50. The criteria listed in s 21C(3) of the Interpretation Act do not state what has been described as the “essence” of a de facto relationship, which is to be found in the phrase “as a couple”. The word “couple” is not defined in the Act.

51. The 6th Edition of the Shorter Oxford Dictionary (2007) defines “couple” as a union of two. The word “couple” comes from the Latin word “copula” which is a bond, tie, or other connecting item.

52. One might argue that the inclusion of the term “living together” would require physical cohabitation. However, the sub-section makes it clear that a common residence is not the only element of the relationship that the Court must consider, and is not, necessarily, an essential element to be proved. To recognise that feature, acknowledges that, sometimes, a couple may choose to conduct a shared life without sharing “a common residence on a full-time basis”: Vaughan v Hoskovich [2010] NSWSC 706, per White J (as his Honour then was), at [51].

53. Yet, as was recently stated by the Court of Appeal in Smoje v Forrester [2017] NSWCA 308, at [42], the state of “living together”:

“will ordinarily include elements of interaction and sharing whilst engaging in activities associated with occupying the same place. Repeated visits for a singular purpose, without more, do not satisfy that description”.

54. The test whether the notion or concept of living together as a couple is satisfied is an objective one. It involves assessing the nature and extent of the claimed common residence as well as other aspects of the relationship. What is important is the nature of the union (as a couple) rather than how it manifests itself in quantities of joint time: Jonah & White (2011) 258 FLR 236; (2011) 45 Fam LR 460, per Murphy J, at [66].

55. Thus, the concept of “living together” must also be read in the context of the concept of “as a couple”. It seems to me, then, that the notion of living together includes the following elements that require evaluation:

1. Co-habitation, although not necessarily fulltime; however, there must be sufficient shared residence, which invites a consideration of such factors as whether the persons said to be living together had a common residential address; where they usually slept at night (for example, when not absent temporarily for holidays, employment or for other reasons); and where they usually kept their clothing, domestic and personal effects; regardless of the number of days or nights spent, perhaps, at another place;

2. Physical proximity in the same residence, in the sense of simultaneous physical presence;

3. Some personal association with each other;

4. The sharing of facilities of day-to-day living on a regular and recurrent basis, often described as sharing a household, including but not limited to, the performance of domestic tasks;

5. Deciding household questions together and, whilst a social and economic partnership of the parties is not required, there should be some sharing of the burden of maintaining a household;

6. Regarding the place, or places, in which the two adults live as ‘their home’;

7. There being no present intention of definite or early removal; a continuity of association with the place; remaining for an undetermined period, not infrequently, but not necessarily combined with design to stay permanently.

56. Whilst each element suggested above does not import any concept of proportion of time, each should exist over a long enough period, to amount to “living together”.

57. If two people do not “live together as a couple”, they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various criteria listed. As Barrett J wrote in Petersen v Gregory; Estate Glenn Alfred Petersen [2007] NSWSC 8, at [11], when considering the phrase living “as a couple”:

“The central concept is one of personal commitment that is mutually acknowledged and of an emotional kind transcending the mere fact of the shared residential setting. It is that which causes two persons residing under the same roof to be living ‘together as a couple’.”

58. Ultimately, the court must consider the nature of their union and whether there was a merger of two individual lives into life as a couple. The search is for such a relationship, as it existed at the date of death, and which had manifested such characteristics for at least two years prior thereto.

59. Once the physical, or factual, aspects, of the relationship have been examined, whether a mental ingredient also existed may be considered. That ingredient involves some commitment, by each of the parties, to their relationship. It need not necessarily be a commitment intended to last forever, or indefinitely. Nor need it be a commitment to a long-term relationship. But it should, at least, be a mutual commitment for the foreseeable future.

60. Common sense dictates that a relationship may change, or develop, over time. Thus, its legal character at one point may not represent its character at another. Furthermore, in assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another.

61. The significance of qualifications of these kinds appears from passages in the leading judgment of Basten JA in Robson v Quijarro [2009] NSWCA 365, at [14]-[16], and from passages which his Honour cited from Bar-Mordecai v Hillston [2004] NSWCA 65, at [120]-[124].

62. Other cases make it clear that the term “de facto relationship” constitutes a single composite expression of a comprehensive notion or concept. It must be approached by considering the expression as a whole and not in several parts: Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677, at 685; Light v Anderson [1992] NSWCA 136, at 4; Bar-Mordecai v Hillston, at [86], [125]; Hayes v Marquis [2008] NSWCA 10, at [73]-[74]. It is the composite picture that must be looked at and individual factors should not be isolated and attributed relative degrees of importance.

63. It follows that the determination of the existence of a de facto relationship is essentially impressionistic. Such a relationship only exists because of the factual circumstances of the parties, unlike marriage, where there is a legal status immediately created at the time of the public ceremony and registration. A value judgment is required to be formed. Accordingly, the Court is often required to assess multiple pieces of circumstantial evidence. If there are sufficient pieces of evidence, when viewed, with care and sensitivity, cumulatively, and with common sense and proper reasoning, which satisfy the finder of fact that the relationship is a de facto relationship, then the statutory test is met: Scragg v Scott [2006] NZFLR 1076, at [64].

64. Ultimately, the conclusion as to the existence, or otherwise, of such a relationship will turn on an evaluative assessment of matters of objective fact. In Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep), the Full Court (Malcolm CJ, Rowland and Ipp JJ) quoted, with approval, the following passage from the judgment of Fitzgerald J in Lynam v Director General of Social Security (1983) 52 ALR 128, at 131:

“Each element of a relationship draws its colour and significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meet the statutory test.”

65. Although the cases referred to in the last paragraph were decided many years ago (as evidenced by the reference to “the opposite sex” in the passage quoted), the general principle stated applies equally now as it did then.

66. In reaching the conclusion about the existence of the relationship, the Court must also be aware of the concept of the diversity of relationships that exist between couples within our society and must not be lulled into social stereotyping. Thus, although said in another context, I agree with Bender FM in Dakin v Sansbury [2010] FMCAfam 628, at [13], that:

“... [T]he nature of the relationship cannot be determined by looking at external societal views of what constitutes a de facto relationship, nor is it determined by what the parties themselves thought their relationship to be.”

67. The concept of a de facto relationship was discussed by Gzell J in Ye v Fung [2006] NSWSC 243, at paragraphs [64]-[65] of the judgment:

“A de facto relationship requires more than adult persons living together. They must live together as a couple. When one thinks of persons as a couple, one thinks of two people in a romantic relationship. That is the first meaning given in the Macquarie Dictionary (4th ed) with reference to people as a couple. The Oxford English Dictionary in defining the word in the sense of the union of two, or a pair, gives as its first meaning with reference to two people: ‘A man and woman united by love or marriage; a wedded or engaged pair.’

In my view the word in the Property (Relationships) Act 1984, s 4(1)(a), in the context of the extension of relief under the Act to persons in a domestic relationship, connotes two adult unmarried persons living together, united by love, or living together in a romantic relationship. The effect of such a construction is that de facto relationships are confined to heterosexual and homosexual romantic relationships.”

68. However, as was pointed out by Allsop CJ, in Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5, at [3]:

“To love and be loved is the beauty that founds many, but not all, human relationships in which there is a commitment to live as a couple. … A couple may have a commitment to each other to a shared life together as partners in the absence of what one might call emotional or romantic love. That is not to say that a mere agreement for money or material support in exchange for being in someone’s company and for tending to their needs (domestic and personal) is a mutual commitment to a shared life as partners.”

69. It can be seen, from what has been set out above, that the concept of a de facto relationship is complex and diverse. Such a relationship can, and should, be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleep over at one another’s house; and also from the relationship of two people, who share a house, but who do not have a commitment to each other, and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared life. It is also different from simple companionship.

70. Importantly, also, unlike a marriage which continues to exist until the dissolution by the Court, there is no presumption, or inference, of continuance of a de facto relationship.

71. In this case, it is the Plaintiff who must establish, on the balance of probabilities, that a de facto relationship existed and that it continued until the time of death of the deceased. As Dutney J, in S v B [2005] 1 Qd R 537; [2004] QCA 449, at [33] wrote:

“De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement. It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship. In Hibberson v George Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows:

“There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to ‘live together’ with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.”

72. (I take the reference to the “robustness of marriage” to mean no more than acceptance of the fact that a marriage persists until a court grants a divorce order, whereas a de facto relationship comes to an end as a result of the conduct of the parties or one of them.)

73. At [48], his Honour added:

“Applying the passage of Mahoney JA in Hibberson v George, which I set out earlier, a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases. The relationship ceases even though one party is still anxious to try to save it.”

Member of household and wholly or partly dependent

74. As stated, the Plaintiff also relies upon s 57(1)(e) of the Act. She must, in order to qualify as an eligible person under this sub-section, establish, first, that she was a member of the household of which the deceased was a member. The authorities are clear that one can be a member of two households: Wolff v Deavin [2012] NSWSC 1315.

75. The Act does not specify a particular length of time during which the applicant must have been a member of the household of which the deceased was a member. However, for some period, the Plaintiff and the deceased must have been members of the same household.

76. Membership of the same household is a necessary, but not a sufficient, condition of eligibility under s 57(1)(e). The Plaintiff must also establish whole, or partial, dependency upon the deceased. She cannot succeed except by virtue of a combination of status (membership of a household of which the deceased was a member) and actual dependency (whole or partial). Yet, membership of the household and whole or part dependency need not have occurred concurrently.

77. It is necessary to consider the meaning of the words "member of a household". I do so, remembering that the words must be given their normal meaning in the context in which they appear. There is no definition of the phrase in the Act.

78. In considering the phrase, it is important to remember that the word "household" may be contrasted with the word "house" (which is not used). The word "house" denotes something physical, whereas the word "household" has an abstract meaning.

79. I dealt with the authorities on the meaning of the term in Russell v NSW Trustee and Guardian [2013] NSWSC 370 at [35]–[51]. I shall not repeat what I wrote in that case. In summary, it is the characteristics and dimension of the domestic relationship that make it a household. The concept connotes a degree of continuity and permanency of mutual living arrangements. Regular visiting, when this is not accompanied by regular overnight stay, is not sufficient.

80. The Act contains no definition of the words “dependent on”.

81. As has recently been repeated in Spata v Tumino [2018] NSWCA 17, at [68]:

“It has long been held that the word ‘dependent’ is an ordinary English word and the question of whether a person is wholly or partly dependent on another is a question of fact: Page v Page [2017] NSWCA 141 at [7], per Sackville AJA (with whom Leeming JA agreed on this point). Although Sackville AJA noted that the construction of s 57(1) was not in issue in that case, he cited Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 (per Hope JA with whom Clarke and Sheller JJA agreed) and Aafjes v Kearney (1976) 180 CLR 199; [1976] HCA 5 at 204 (per Barwick CJ) and 210 (Mason J, Stephen J agreeing), as authority for the proposition. To these cases may be added the decision of Meagher JA (with whom Basten and Campbell JJA agreed) in Tobin v Ezekiel at [109]-[111]…”

82. In Tobin v Ezekiel (2012) 83 NSWLR 757 at 786; [2012] NSWCA 285, at [109], Meagher JA wrote that dependency “in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters”, and at [110], that it “may exist, irrespective of whether the dependent person is financially or physically able to support him- or herself”.

83. In Page v Page [2017] NSWCA 141, Basten JA wrote, at [8]:

“Questions of dependency, as between two persons, can arise in many different contexts, both factual and legal. As a factual matter, any relationship which involves co-operative activity can be said to give rise to mutual dependency; each person being dependent upon the other to perform their respective roles. However, the statutory context requires a more limited form of dependency, which gives rise to a statutory obligation to make provision from the deceased person’s estate for the proper maintenance, education or advancement in life of the dependant.”

84. This conclusion, that the statutory context requires a more limited construction of the term dependency, being limited to a relationship which of itself gives rise to a statutory obligation to make provision from the deceased person’s estate for the proper maintenance, education or advancement in life of the dependent, is a narrower test.

85. What has been described as “the more traditional test” was explained by Sackville AJA (with whom Leeming JA agreed), who noted, in summary, at [101]:

“No question of construction arises in the present case since Mr Coleman did not take issue with the primary Judge’s construction of s 57(1)(e) of the Succession Act or his Honour’s statement of the relevant principles. It is convenient to refer to these principles briefly:

1. The word ‘dependent’ is an ordinary English word and whether a person is wholly or partly dependent on another is a question of fact.

2. The factual question can be complex and involve consideration of many elements. Accordingly, different minds might well differ in their approach.

3. While a common form of dependence is dependence on another for the material necessities of life, this is not the only form recognised by s 57(1)(e) of the Succession Act. For example, where a parent or step-parent provides a child who has no independent financial resources with services essential to well-being, the child might be found to have been wholly or partly dependent on the parent or step-parent.

4. Dependency involves the satisfaction of a need, but the need is not restricted to the requirements of basic necessities or sustenance.

5. The word ‘partly’ in the definition of ‘eligible person’ is a word of ‘some elasticity’. It does not necessarily mean ‘substantially’, but rather ‘more than minimally’ or perhaps ‘significantly’.

6. Dependency is not necessarily correlative with a legal duty to maintain, although such a duty is a factor to take into account. Nor are dependency and actual support necessarily correlative. Hence there may be cases where support has been provided without dependency, for example where the support is provided for a short time or for a particular purpose or where an adult child provides occasional domestic assistance to an aged parent.” (Omitting citations)

86. In general, the word “dependent” connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for her, or his, maintenance and support.

87. In Spata v Taumino, Payne JA (at [68]-[72]) and Sackville AJA (at [132]) (with whom Macfarlan JA agreed) concluded that the traditional test for determining whether an applicant was “wholly or partly dependent" on the deceased person should be applied in preference to the more limited construction.

88. In Amaca Pty Ltd v Novek [2009] NSWCA 50 at [45], Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under s 15B of the Civil Liability Act 2002 (NSW)):

“In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138:

‘Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband [and] his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of “dependants” does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a “dependant” is a member of the workers’ family who was “wholly or partly dependent for support upon the worker at the time of his death”. Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts’ Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.’”

89. In Skinner v Frappell [2008] NSWCA 296 at [85], Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal, wrote:

“The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material or physical help or succour, emotional dependency is not enough.”

90. Returning to Spata v Tumino, Payne JA noted at [72], “[A] finding of being ‘wholly or partly dependent’ does not itself give rise to a statutory obligation to make provision from the deceased person’s estate for the proper maintenance, education or advancement in life of the dependent; it is merely the first step”. Sackville AJA, at [139], also affirmed that

“A claimant who establishes that he or she is an eligible person by reason of dependency on the deceased (and membership of the same household) may or may not be a person to whom the deceased owed an obligation to make provision by way of testamentary disposition. The concept of dependency in s 57(1)(e)(i) of the Succession Act is not to be limited by incorporating criteria that are only to be considered once the claimant establishes that he or she is entitled to apply for a family provision order.”

Factors warranting the making of the Application

91. In the case of an applicant who falls within s 57(1)(d), (e) or (f) of the Act, the Court must next consider, and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).

92. In requiring a person who falls within one, or other, of these subsections to satisfy the Court that there are such factors, the Act distinguishes between two classes of eligible person. As was recently written by McColl JA (with whom Gleeson and Simpson JJA agreed) in Yee v Yee [2017] NSWCA 305 at [111]-[112]:

“…Within the first category (s 57(1)(a) – (c)) are persons generally “regarded as natural objects of testamentary recognition”, such as lawful and de facto spouses and children. This class is so regarded because it consists of those to whom it has been said a testator owes a moral duty of support.

Those falling within the second category (s 57(1)(d) – (f)) are not generally regarded as natural objects of testamentary recognition by a deceased. Rather, they are “potentially appropriate objects of testamentary recognition, depending upon their circumstances”. In order to qualify as such objects in fact, they must establish there are factors warranting their application. That is a jurisdictional question.”

93. The Act does not specify the “factors which warrant the making of the application”. As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138, at [16], “[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement”.

94. In considering the meaning of what he described as “this poorly conceived and clumsily expressed subsection” in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), McLelland J said, in Re Fulop, Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

95. I have dealt with the meaning of the phrase in other cases, one of which is Doshen v Pedisich [2013] NSWSC 1507. I shall not repeat what I wrote in that case.

96. In Sassoon v Rose [2013] NSWCA 220 at [15], an application for leave to appeal, Meagher JA (with whom Gleeson JA agreed) noted:

“In addressing the question whether there were factors warranting the making of her application, Macready AsJ correctly identified the relevant principles as those stated by McClelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal [2009] NSWCA 54 at [8]. Those ‘factors’ are ones which, when added to the facts which render the applicant an ‘eligible person’ (in Ms Sassoon’s case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition.”

97. In Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392, at [4]-[6], Basten JA wrote:

“The primary category of eligible people are spouses, including those in a de facto relationship with the deceased at the time of death and a child of the deceased. Other eligible persons (a category including the claimant) are required to satisfy the court that ‘having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application’: s 59(1)(b). The claimant must also satisfy the court that at the time when the court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made by the will of the deceased: s 59(1)(c).

Subsection (1)(c) assumes that some provision should have been made for the claimant by the will of the deceased; subs (1)(b) treats the primary category of eligible persons as naturally satisfying that assumption, whereas the secondary category (into which the present claimant falls) need to justify the assumption: see, in relation to relevantly identical provisions in s 9 of the Family Provision Act 1982 (NSW), Re Fulop Deceased; Fulop v Public Trustee (1987) 8 NSWLR 679 at 681 per McLelland J.

That approach obtains support from the provisions of Ch 4 of the Succession Act dealing with intestacy. Those primarily entitled to a distribution from the estate of an intestate are a surviving spouse (ss 110-113) and the deceased’s children (s 127). A grandchild has an entitlement, but only a presumptive share of a child of the intestate who predeceased his or her parent: s 127(4).”

98. Most recently, in Lodin v Lodin [2017] NSWCA 327, Sackville AJA (with whom Basten and White JJA agreed), wrote at [106]-[107]:

“In Re Fulop, McLelland J construed s 9(1) of the FP Act, the forerunner to s 59(1)(b) of the Succession Act. His Honour stated the following propositions: [54]

(i) The question posed by s 9(1) of the FP Act cannot be resolved until all admissible evidence relevant to the issue of whether there are factors warranting the application has been tendered. Despite s 9(1) using language that apparently contemplates determining the question as a preliminary issue, ordinarily it is impracticable to isolate the evidence bearing on that issue from other evidence in the case.

(ii) Section 9(1) is premised on a distinction between “factors which warrant the making of the application” and the circumstances which justify the making of the family provision order. Otherwise the subsection would be pointless. This means that in a particular case an applicant might establish that there are factors warranting the application, yet the court might decline to make a family provision order in the applicant’s favour.

(iii) The legislation also requires a distinction to be drawn between “eligible applicants” who do not have to satisfy s 9(1) (a spouse, de facto partner or child of the deceased) and those who do (such as a former spouse or grandchild). The difference is that the former are generally regarded as natural objects of testamentary recognition by a deceased, while the latter are not generally so regarded. Accordingly, the “factors” referred to in s 9(1) of the FP Act are those that give an eligible person in the second category “the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased”.

These propositions have been accepted in subsequent cases arising under the FP Act, including cases in which a former spouse of the deceased claimed a family provision order. They have also been accepted as applicable to a claim by a former spouse under the Succession Act. Thus in Sassoon v Rose, Meagher JA said that the trial Judge in that case correctly identified the principles stated in Re Fulop as the basis for determining whether there were factors warranting the making of the application.”

The Succession Act

In view of the authorities it is not surprising that the parties in the present case proceeded on the basis that the principles stated in Re Fulop in relation to s 9(1) of the FP Act apply equally to s 59(1)(b) of the Succession Act, despite the differences in statutory language. Nonetheless some observations should be made about the construction of s 59(1)(b) and s 60 of the Succession Act.

…

When ss 59(1)(b) and 60 of the Succession Act are read together they should be understood to allow the Court to have regard to the matters in s 60(2) when determining whether there are factors that warrant the making of the application. The reference in s 59(1)(b) to “all the circumstances of the case (whether past or present)” is apt to enable the Court to take into account, for the purposes of the determination under s 59(1)(b), any of the matters identified in s 60(2), provided that they are relevant to the issue to be determined. What is relevant in a particular case will depend on the particular circumstances.

Section 60(1)(b) of the Succession Act provides that the Court may have regard to the matters set out in s 60(2) for the purpose of determining whether to make a family provision order and the nature of any such order. However, this does not mean that the issues for determination raised by s 59(1)(b) and s 59(1)(c) of the Succession Act are identical. Section 59(1)(b) requires the Court to consider whether certain “eligible persons”, such as a former spouse or a grandchild of the deceased, have shown that there are factors warranting the making of the application. Only if the person satisfies that requirement can the Court make a family provision order in accordance with the criteria laid down by s 59(1)(c). As McLelland J in Re Fulop remarked of s 9(1) of the FP Act, there would be no point in requiring an eligible person to satisfy s 59(1)(b) of the Succession Act if it is co-extensive with s 59(1)(c).”

99. Although Sackville AJA went on to deal with the claim of an applicant who was a former spouse of the deceased, the following propositions that he stated, at [126]-[129], apply generally:

1. Care must be taken not to impose rigid constraints on the circumstances that might constitute factors warranting the making of an application for family provision order from the estate of the deceased;

2. What an applicant must show cannot be defined with precision since all the circumstances have to be taken into account. Some cases may be comparatively straightforward; others may not be.

3. A significant matter is likely to be the nature of the relationship between the applicant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a social, domestic or moral obligation on the deceased to make testamentary provision for the applicant.

100. Finally, I should note that in Page v Page, Leeming JA noted, at [38], that:

“An order for provision may only be made if (a) as a former member of the same household, the appellant establishes that he was ‘at any particular time, wholly or partly dependent upon the deceased’ and (b) that ‘having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application’: s 57(1)(e)(i) and s 59(1)(b). These are both ‘jurisdictional’ questions, in the sense that the application must be dismissed unless both questions are answered favourably to the claimant. However, they are different from one another. They are also different from the further question which arises under s 59(1)(c), which must also be answered favourably before an order for family provision is made.”

Adequacy of Provision

101. Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of the applicant.

102. In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA observed:

“There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight.”

103. The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment (Singer v Berghouse (1994) 181 CLR 201 at 210-211; [1994] HCA 40; White v Barron (1980) 144 CLR 431 at 434-5, 443; [1980] HCA 14).

104. Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented that the state of satisfaction “depends upon a multi-faceted evaluative judgment”. In Kay v Archbold [2008] NSWSC 254 at [126], White J (as his Honour then was) said that the assessment of what provision is proper involved “an intuitive assessment”. Stevenson J has described it as “‘an evaluative determination of a discretionary nature, not susceptible of complete exposition’ and one which is ‘inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific’”: Szypica v O’Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61 at [9].

105. Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.

106. Whether the disposition of the deceased’s estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant’s “needs” that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575. This statement is not intended to suggest that an applicant’s “needs”, when compared with the provision made for him or her, out of the estate or notional estate, should be the dominant consideration. The existence, or absence, of “needs” which the applicant cannot meet from his, or her, own resources will always be highly relevant, and quite often decisive, as the statutory formulation, and, therefore, the issue in every case, is whether the disposition of the deceased’s estate was not such as to make adequate provision for her, or his, proper maintenance, education and advancement in life: Singer v Berghouse at 227; Bkassini v Sarkis [2017] NSWSC 1487, per Robb J, at [296] – [297].

107. The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, described by Rosalind Atherton in “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Aust J Leg Hist 5, 10, as reached upon “a purely economic and objective basis”, whereas “proper” prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.

108. These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476:

“The use of the word ‘proper’ in this connection is of considerable importance. It connotes something different from the word ‘adequate’. A small sum may be sufficient for the ‘adequate’ maintenance of a child, for instance, but, having regard to the child’s station in life and the fortune of his father, it may be wholly insufficient for his ‘proper’ maintenance. So, too, a sum may be quite insufficient for the ‘adequate’ maintenance of a child and yet may be sufficient for his maintenance on a scale that is ‘proper’ in all the circumstances.”

109. Their Lordships went on to state, at 478:

“The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the court were concerned merely with adequacy. But the court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration.”

110. Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572; [1957] HCA 82, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word “proper”, that:

“It means ‘proper’ in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.”

111. In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at [19], pointed out that the words 'adequate' and 'proper' are always relative and that what the testator regarded as 'superior claims or preferable dispositions' is a relevant consideration:

“The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning.”

112. In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J wrote, at 502:

“…the words ‘adequate’ and ‘proper’ are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards.”

113. In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114], Callinan and Heydon JJ wrote:

“…the use of the word ‘proper’… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word ‘proper’ means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the ‘station in life’ of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.”

114. Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that “adequate” and “proper” are independent concepts. He wrote, at [12]:

“‘Adequate’ relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. ‘Proper’ depends upon all the circumstances of the case. These include the applicant’s station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased’s bounty, the applicant’s conduct in relation to the deceased, the applicant’s contribution to building up the deceased’s estate, the existence of dependents upon the applicant, the effects of inflation, the applicant’s age and sex, and whether the applicant is able-bodied.” [Citations omitted.]

115. In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J observed that the question of what provision for a person’s maintenance, education or advancement in life is “proper” and the question of whether the provision made by the deceased was “adequate” for that person’s maintenance, education or advancement in life “involve value judgments on which minds can legitimately differ”, and “[t]here are no definite criteria by which the question can be answered.”

116. His Honour added, in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [123]:

“The question of what level of maintenance or advancement in life is ‘proper’ depends on all of the circumstances of the case including ‘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’ (Singer v Berghouse (1994) 181 CLR 201 at 210).”

117. In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA wrote:

"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.

'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11.

The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.

Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."

118. However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as will also be read, one of the purposes for which that is done is for determining “the nature of any [family provision] order”: s 60(1)(b) of the Act.

119. No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". I respectfully agree.

120. Of course, “need” is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. It is different from “want” and does not simply mean “demand” or “desire”. The latent difference between the words was stated by Lord Neuberger of Abbotsbury (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]:

“‘Need’ is a more flexible word than it might first appear. ‘In need of’ plainly means more than merely ‘want’, but it falls far short of ‘cannot survive without’.”

121. In Boettcher v Driscoll (2014) 119 SASR 523 at 530; [2014] SASC 86 at [41], David J added:

“‘Need’ is not so synonymous with ‘want’ such that the two are interchangeable.”

122. In Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189 at [31], the Court of Appeal considered the notion of “need” in an application for a family provision order where the notional estate of the deceased was very large and the claimant did not have “any needs in terms of lack of present provision for necessities and amenities of life, on ordinary scales of needs as understood in the community generally”.

123. As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.

124. If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.

125. Section 60 of the Act provides:

“(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining:

(a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and

(b) whether to make a family provision order and the nature of any such order.

(2) The following matters may be considered by the court:

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e) if the applicant is cohabiting with another person - the financial circumstances of the other person,

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g) the age of the applicant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l) whether any other person is liable to support the applicant,

(m) the character and conduct of the applicant before and after the date of the death of the deceased person,

(n) the conduct of any other person before and after the date of the death of the deceased person,

(o) any relevant Aboriginal or Torres Strait Islander customary law,

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.”

126. It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the court considers relevant”, for the purpose of determining whether the applicant is an “eligible person”, whether a family provision order should be made, and if so, the nature of any such order.

214. The Plaintiff gave evidence that in late 2013, before she went to Northern Territory, the deceased had given her $28,000, for the deposit, to enable her to settle the purchase of an investment property. No documents relating to the amount said to have been given to her were produced by her and she was unable to explain why no documents had been produced, saying that she was unsure where a document discovered by her solicitor had gone. (She had solicitors acting for her on the purchase of the property and there was no evidence of any request made to her solicitors to produce any documents.) She accepted that, on her evidence, the deceased had contributed $28,000 to a property of which she continued to be the sole registered proprietor.

215. The Defendant annexed to one of his affidavits a printout from an account in the deceased’s name which included, in the deceased’s handwriting, “Loan to B Bezjak, $18,315.55” on 13 November 2013. The Plaintiff maintained that the deceased had made a gift to her of the money for the investment property and asserted that she had never seen the document before, despite the fact that a copy had been annexed to one of the Defendant’s affidavits. (The use of the Plaintiff’s initial and her last name on this document is also telling.)

216. The Plaintiff stated that she had a number of conversations with the deceased about his testamentary intentions from at least 2013 until his death. She accepted that he did not ever discuss making any provision for her: T121 – T122. Nor did she produce any Will in which she named the deceased as a beneficiary.

217. The Plaintiff gave evidence of her financial circumstances in each of the affidavits that she relied upon.

218. In her affidavit, sworn a few days before the hearing, she stated “for the purpose of updating my financial circumstances for the benefit of the Court, I now provide the following:

“4.

Assets	Value	Liability		Net value
Lead Street, Yass	$300,000.00	$261,242.60		$38,757.40
Mount Street, Yass	$290,000.00	$170,276.31		$119,723.69
Supernnuation	$178,356.88
Suzuki SX4 (2011)	$8,000.00	$0.00		$8,000.00
Income
My income has increased to $3,524.93 gross / $2,754.93 net per fortnight.
Other debts and repayments per fortnight:
Creditor	Debt (4)		Repayment plans
St George mortgage (Lead Street)	$260,000.00		$845.00
St George mortgage (Mount Street)	$169,000.00		$615.33
Yass Council – water rates	$1,153.42 (inc interest & fees)		$16.65
Yass Council – land rates	$10,363.09 (inc interest & legals)		$162.50
St George – overdraft	$2,500.00		$0.00
St George – personal loan	$4,000.00		$73.67
CBA – personal loan	$4,000.00		$216.67
NAB credit card	$6,000.00		162.50
St George – credit card	$17,000.00		$50.00
GEM visa card	$4,500.00		$162.50
Total repayments	$2,304.82 pfn

…

5.   I have not received any lump sum of windfall amount since my last affidavit, or at all.”

254. The Plaintiff’s evidence was that the Lead Street property, in May 2017, had a value of $410,000 but that in December 2017 it had a value of $300,000 and that the Mount Street property had a value of $340,000 which had dropped to $290,000. She also had revised downwards, the value of her car (from $25,000 to $8,000.) How she had come to her revised estimates of value was not disclosed by her. She had also not included, as an asset, in her December affidavit, the value of a cello ($20,000) which she still owned (and which she had disclosed in her earlier affidavit).

255. The Plaintiff accepted that she had “not provided any documentary evidence to support or corroborate these revised values”: T125.10 – T125.12. She stated, in relation to the real estate, that “my solicitor did a search to determine these figures not me”: T124.39 – T124.44. (Her solicitor gave no evidence to corroborate that evidence or, more importantly, of the steps taken to determine the revised values.)

256. The Plaintiff was served with a notice to produce, dated 3 November 2017, a copy of which was Ex. 1. Various documents were required to be produced, including income tax returns and notices of assessment, for the 5 financial years prior; credit card statements for the 3 years prior; residential leases relating to the Plaintiff’s property described as “the Mount Street property”; all mortgage documentation relating to each of the properties owned by the Plaintiff; rate notices; and bank statements.

257. A notice to produce had been served upon the Plaintiff by letter dated 18 November 2016. The Plaintiff was directed to the copy of that notice to produce, which was in similar terms to Ex. 1. The Plaintiff said that she could not remember whether she had been provided with a copy of the earlier notice to produce by her solicitors, although she knew, by March 2017, that the Defendant was requiring her to produce documents: T50 – T51. She seemed to accept that no documents had been produced for inspection until the day before the commencement of the hearing, although she stated that “I’ve provided financial documents to my solicitor well before yesterday afternoon” T51.45 – T51.49. (Her counsel obtained instructions and it was accepted that leaving aside any documents, a copy of which was annexed to the Plaintiff’s affidavits, “to the extent that any documents were produced in answer to the notice to produce, those documents were produced yesterday afternoon”: T53.00 – T53.15.)

258. A copy of all of the documents that were produced by the Plaintiff was tendered in a folder marked as Ex. 3. Those documents did not include any income tax returns.

259. In relation to her evidence that she moved into the Binalong property with the deceased and that she rented out “the Mount Street property” from 2009 “on a one year lease”, she did not provide a copy of any residential lease relating to the Mount Street property saying that “I’m not sure why not”: T62.14 – T62.26. After checking her affidavits, she also accepted that a copy of any lease had not been annexed to any of her affidavits.

260. The Plaintiff also accepted that there were no documents produced showing that the Mount Street property had been rented in 2009 or 2010: T63.03 – T63.36.

261. Her PAYG payment summary for the year ending 2010, and for the year ending 30 June 2011, described her address as the Mount Street property in Yass. Her PAYG payment summary for the year ending 30 June 2012, 2013, 2014, 2015 and 2016 described her address as a P.O Box in Yass.

262. The Plaintiff was cross-examined about her conduct following the death of the deceased and a conversation with the Defendant, within weeks of the deceased’s death, in which he had asked her not to enter the Binalong property. She was referred to an email dated 27 December 2015, from the Defendant to her, which she acknowledged that she had read “at some point… within the month post death”, in which a further request was made for her not to enter or attempt to enter the Binalong property. Despite all of this, she had attended at the Binalong property, had defaced a sign that had been placed on the property by the Defendant, and had changed the locks, asserting that she had received legal advice that she was able to do so: T 101.37 – T103.40. It was later asserted that the advice was “that I had entitlement to ownership of the property so I could change the locks so I could access the property”: T104.45 – T104.49.

263. No solicitor, from the Plaintiff’s current solicitor’s office, or otherwise, was called to corroborate having given her any such advice, despite the Plaintiff asserting that some such solicitor had given the advice. It is hard to believe that such advice had been given.

264. The lack of documentary, and other, evidence that could have been, but was not provided by her, contributes to my finding, based on all of the evidence, that the Plaintiff’s case that she was the de facto partner of the deceased at the time of his death has not been established.

265. I shall not refer to other evidence of events involving the Plaintiff and the Defendant following the death of the deceased. Some of these events do not paint the Plaintiff in the best light, but they are not really relevant to the determination of the matters in issue between the parties. (Some of the things said by the Plaintiff to the Defendant appear to have been quite unnecessary and unduly offensive.)

266. What is important in regard to post death conduct is what is contained in the eulogy and “updated memorial booklet” containing photographs which identifies “Wyatt’s yurt…and the place he called home”, “Wyatt’s new studio” and “the lane to Wyatt’s home”. There is no reference to the Plaintiff as the deceased’s partner.

267. The Defendant was also cross-examined, but on very few issues. I am satisfied that he was endeavouring to assist the Court by answering the questions to the best of his ability.

268. He gave evidence in cross-examination that he could not recall seeing the deceased, face to face, in 2015, and that he only saw him, face to face, in 2013-2014, two or three times. He said that the last time he had travelled to the Binalong property was in 2014. They did, however, speak on the telephone “every two or three weeks, perhaps … certainly once a month on average”: T131.24 – T131.26.

269. I accept his evidence that he and the deceased had a close relationship and they spoke about personal matters to each other. He accepted that whilst there had been a discussion about the deceased’s will, the deceased had not told him, and he had not asked, about how the deceased intended his estate to be distributed: T134.25 – T134.49.

270. The Defendant stated that the deceased, in 2009, told him that he was “seeing” the Plaintiff but that “[H]e never told me that they were living together as a de facto couple or were committed to supporting each other and on the occasions when I came down to Yass or Binalong, I recall meeting her in Peter’s company on only a few occasions”.

271. The Defendant gave evidence that the deceased told him, in around 2012, that he had changed his land line telephone to a silent one and had “resorted to padlocking the gate to his property in order to prevent [the Plaintiff] from getting in”. He stated that the deceased did not explain what had happened to lead him to taking these courses, but simply stated that there had “been issues and I need a solution to keep her at arm’s length. I’m still working with her at the Youth Centre, so it’s not easy”.

272. I also accept the Defendant’s evidence that when he attended the Binalong property on 18 December 2015, he “immediately noticed the interior of the yurt was in a very untidy state and did not look as though it had been cleaned for some time…Throughout the house and in the bedroom I found evidence of Peter’s prior existence – his clothes, toiletries, personal possessions and the like – but nothing that suggested that anyone other than Peter was inhabiting the house. In particular, I cannot recall seeing any photos of Peter and Brigita anywhere and certainly no female effects that might have been hers”. I also accept that, it was on this occasion, the Defendant found a copy of the Will “in the top drawer next to the desk in Peter’s studio…within a large yellow envelope”. The Defendant’s evidence is relevant to casting doubt on the Plaintiff’s evidence of her association, or connection, with the Binalong property at the time of the deceased’s death.

273. I have considered the Plaintiff’s submission that the Defendant’s conduct in engaging with the Plaintiff following the death of the deceased reveals the recognition of the relationship of the deceased and the Plaintiff. I am satisfied that there may have been discussions between them in relation to funeral arrangements, but I do not accept that there was any agreement reached, as was asserted by the Plaintiff: T110.45 – T111.06.

274. I refer to an email dated 23 December 2015 sent to the Defendant, in response to an earlier email in which he had stated that “it has not been possible to arrange for Pete’s funeral to be held in Yass”, in which the Plaintiff asserted “You have not even spoken to me…It seems James that you had made your mind up before you even spoke to me. I can only say that your actions disgust me and I believe your actions are evil”. (There was a later email on the same day, also sent to a number of people, but addressed to the Defendant, from the Plaintiff (Annexure “D” to the Defendant’s affidavit) which does not bear repeating but which, also, does not paint the Plaintiff in the best light.)

275. The Plaintiff’s denial that what she had written was inconsistent with an agreement having been reached does not assist her credit: T112. The content of her emails to the Defendant, copied to others, also does her no credit.

276. In other respects, the conduct of the Defendant in requiring the Plaintiff to not attend the Binalong property is consistent with him believing that there was no relationship between her and the deceased.

Determination of Eligibility

277. Drawing all of the facts together, I am of the view that the Plaintiff may have convinced herself that her relationship with the deceased, particularly after about early 2010, was far more serious, and of a very different nature, than he appears to have done. She seems to have been unable to accept that the deceased did not wish to have any permanent, serious, or continuing, relationship with her, other than a friendship, after about early 2010.

278. In my view, their relationship, whilst romantic, and perhaps, even loving, prior to 2010, changed, significantly, after that time. It could not be described as a de facto relationship at the date of the deceased’s death. Many of the criteria identified in s 23C were not in existence at that time, and, indeed, had not been a feature of the parties' relationship for a significant period of time before death, if ever.

279. I am also satisfied that the Plaintiff has convinced herself that the relationship was as she sought to describe it, being a de facto relationship at the time of the deceased’s death and she has interpreted whatever material is available to her in a way to suggest that it was. The fixity of her views revealed the tendency of the human mind to believe what it is advantageous, or necessary, for a person to believe in a particular situation.

280. I am not satisfied that such a de facto relationship existed in fact. I accept the submission of the Defendant that, after a relatively short romantic attachment, which commenced in about 2008, the deceased was not in a relationship with the Plaintiff, in the conventional sense of being a supporting and committed partner to her. What had started between them, in about 2008, did not appear to last very long, and whilst the deceased was prepared to, and did, remain a close friend of the Plaintiff, he also endeavoured to ensure she could not impose herself on his personal and private life.

281. I am not persuaded that the evidence, overall, demonstrates that the deceased was committed to a future shared life with the Plaintiff at any time. In about 2008, they embarked on a romantic relationship, which appeared to continue in 2009 and, perhaps, into early 2010 (although as stated, the Plaintiff conceded that there were difficulties in the relationship in late 2009). Whilst it may have been that, when it commenced, each hoped that it would continue into the future, I am of the view that the hope was unfulfilled and no concrete steps were taken to achieve it. Even if they stayed together at the Binalong property, or at Yass, reasonably regularly, in 2008 and 2009, that is not enough to demonstrate a de facto relationship was then in existence.

282. Even accepting that after about 2010, the deceased had a friendship with the Plaintiff which involved them spending some time together; that they may have accompanied each other to some social events; and on one occasion, they holidayed together; and that he supported her, during difficult times, emotionally, and, on occasions, financially (although he expected any money advanced to her to be repaid to him), this does not go far enough, in my view, to establishing a de facto relationship at the time of the deceased’s death.

283. There is simply insufficient evidence, when all of the facts are considered, to persuade me that the Plaintiff and the deceased had a relationship as a couple living together at the Binalong property, or at her Yass property, at the time of the deceased’s death (as asserted by her). The evidence that the deceased involved the police, changed his landline telephone number without providing it to the Defendant, and that he padlocked the front gate to the Binalong property, without giving her a key, clearly suggests that he did not want her to come to the Binalong property unless invited to do so.

284. These matters are also inconsistent with the deceased living with her at the Plaintiff’s Yass property.

285. Even if the deceased had expressed the view that he loved her (in an email of 29 October 2013), that does not lead to the conclusion that it was more than a loving friendship, which, by then, had existed for more than 6 years. There is some evidence that their relationship, after 2010, was not without intimacy.

286. Furthermore, whilst the deceased might have had access to the Plaintiff’s bank account, it is clear that this was for the purpose of assisting her whilst she was overseas or when she was unable to access her accounts. There is no suggestion that he used any money in her account for his own purposes. In this regard, the deceased maintained his financial independence from the Plaintiff.

287. It is also clear that the Plaintiff acquired real property separately from the deceased and regarded it as her own. Although she asserted that there was joint purchase or personal property, she did not specifically identify such property, or provide any documentary evidence showing its purchase by them both. By way of example, there was no invoice produced showing them, or either of them, as the purchasers of invoiced goods.

288. I have earlier referred to the fact that there were no children of the relationship, although the Plaintiff asserted that she fell pregnant on two occasions and that the deceased was the father.

289. In all the circumstances, the Plaintiff has not satisfied the Court that she and the deceased "lived together as a couple" at the date of his death. Accordingly, I am unable to find that she is an eligible person under s 57(1)(b) of the Act.

290. However, in one sense, the rejection of the Plaintiff’s claim as the deceased’s de facto partner is of little consequence so far as the determination of eligibility. The question whether the Plaintiff was a member of the household of which the deceased was a member, and whether she was wholly or partly dependent upon him must be also be considered. If she establishes eligibility on this basis, and then factors warranting the making of her application, that will entitle her to make the claim for a family provision order (although the findings will not, of themselves, guarantee that the claim will succeed).

291. Initially, I tended to the view that they were not members of the same household, even though the Plaintiff was likely to have visited the deceased at the Binalong property, and may have stayed there, with him, at various times, between about 2008 and about 2010.

292. However, the copy of the Plaintiff’s driver licence, which expired in 2010, has led me to the view that she stayed with him there, at some time, prior to, or in, 2010, sufficiently regularly, to cause her to change the address shown on her driver licence. One would be unlikely to go to the trouble of doing so, at the time, other than for good reason.

293. Since I do not accept the Plaintiff’s evidence about how she and the deceased lived after early 2010, and even if on occasions, they stayed overnight together at either the Binalong property, or at the Plaintiff’s property in Yass, I am not satisfied that, after early 2010, there was a degree of continuity and permanency of mutual living arrangements to constitute the Plaintiff being a member of the household of which the deceased was a member.

277. However, the Act does not impose any period of time for membership of the same household. Accordingly, I am satisfied that they were members of the same household for a period of time, in 2009 and, perhaps, in early 2010 (until she left on her trip to India and Nepal), when she stayed at the Binalong property with the deceased.

278. As stated, she has not produced any subsequent driver licence to show that the Binalong property address remained as her address after 19 January 2010.

279. I am also satisfied that the Plaintiff was partly dependent on the deceased and that he provided her with emotional, and other, support, even after their relationship had changed to that of friendship. That support is evidenced by the email correspondence between the deceased and her whilst she was away, to which I have referred. Certainly, she appears to have looked to the deceased for emotional support, in particular, to a workplace dispute, in respect of which he provided support.

280. I accept that any financial support provided to the Plaintiff by the deceased was provided upon the basis that moneys advanced were to be repaid to him. However, that does not mean that she was not partly dependent upon him to provide that support until she was able to repay him.

281. It follows that I am satisfied that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(e) of the Act.

Determination of whether there are factors warranting the making of the Plaintiff’s application

299. The Plaintiff’s counsel, in his written submissions, does not specifically identify the factors warranting other than to state that “Wyatt and Brigita had a de facto relationship over a period of some 6 years” and that “[T]he plaintiff’s evidence is that Wyatt did not share a close relationship with his family but did with Brigita’s family”.

300. At the hearing, counsel added, “the will itself and the disposition as it stands [is] slightly awry … in that the primary beneficiary is Susan Shields”: T163.36 – T163.38.

301. If there was a de facto relationship as the Plaintiff alleged, she does not need to establish factors warranting the making of her application. As to the other factor identified, even if were true (which I do not accept), how that would make the Plaintiff a person generally regarded as a natural object of testamentary recognition by the deceased, was not developed.

302. At the hearing, counsel for the Plaintiff also relied upon the Plaintiff and the deceased having spoken about a family together; living together on the Binalong property and sharing both properties at Yass; and that the deceased had lent money to the Plaintiff; as “factors that showed some sort of special place in the deceased’s life for the plaintiff”: T163.26 – T163.36.

303. The Defendant, of course, maintained that there were no factors warranting the making of the Plaintiff’s application. He pointed, particularly, to the deceased’s conduct in changing his landline telephone number to a silent number, to changing the lock to his front gate and involving the police; to the fact that the deceased did not change his Will, made well before any relationship with her commenced and having given no instructions to change his Will; that even when they discussed the deceased’s testamentary intentions, he did not suggest that he would make any provision for her; nor did she make the suggestion to him that he ought to do so; and in the email correspondence, after 2011, that the Plaintiff described him as “abusive” and “professionally undermining her”, which terms were hardly suggestive of the type of relationship she was endeavouring to portray.

304. It is to be remembered that care must be taken not to impose rigid constraints on the circumstances that might constitute factors warranting the making of an application for family provision order. However, even the findings that the deceased had a seemingly satisfying close friendship with the Plaintiff which involved them spending some time together; that they may have accompanied each other to some social events, and on one occasion; that they holidayed together once; and that he otherwise supported her during difficult times emotionally and, on occasions, financially (although he expected any money advanced to her to be repaid), do not satisfy me that there are factors warranting the making of the Plaintiff’s application.

305. Something more is ordinarily needed for the applicant to show that the applicant was a natural object of testamentary recognition. The past relationship of the Plaintiff and the deceased, whilst obviously relevant, must be considered with all the circumstances of the case — whether past or present. A person might provide to such a close friend generous assistance, including lending her money or providing her with guidance or advice; but neither the person, nor the recipient of his, or her, generosity, nor the community, would necessarily, or even ordinarily, conclude that, as a result of that relationship, the recipient was a natural object of testamentary bounty.

306. I have already referred to the indications of the deceased’s own view as to his responsibilities and obligations. It appears that the Plaintiff, herself, did not regard the deceased as having owed her such an obligation, as she did not express that view in what she said were the conversations held about his testamentary intentions.

307. Another way of considering the present matter is to inquire what social, domestic or moral obligation the deceased had to provide for the Plaintiff whilst he was alive. The answer to that, in light of the factual findings regarding their relationship, is that he would not have any such obligation.

308. Having considered all of the evidence, I am not satisfied that there are any factors warranting the making of the Plaintiff’s application. There are, in my view, no factors that demonstrate a social, domestic, or moral obligation on the deceased, to make some provision for the Plaintiff. In my view, widely held community standards would not expect the deceased to have made provision for the Plaintiff, with whom, some years prior to his death he had a romantic relationship, but which changed, several years before his death, into, at its highest, a loving friendship.

309. In the circumstances of the case, the Plaintiff’s claim must be dismissed as she has not satisfied the Court that there are factors warranting the making of her application.

310. However, in case I am wrong in regard to finding that there are no factors for the making of the Plaintiff’s application, I shall determine whether adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made by the Will of the deceased. It is only if the Court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order. The Court may take into consideration, the matters referred to in s 60(2) of the Act at both stages.

311. I have set out the financial circumstances of the Plaintiff as adverted to in her most recent affidavit served a few days prior to the commencement of the hearing. Some aspects of her evidence on this topic, particularly relating to the value of each of her Yass properties, cause me concern.

312. Yet, as disclosed by her, she is the sole registered proprietor of two parcels of real estate, subject to mortgage; she has superannuation of almost $179,000 and a car. Her expenses, which include fortnightly repayments of mortgage debt, total $2,304, whilst her net fortnightly income is, now, $2,754, thereby providing a surplus of $450 per fortnight.

313. If her Mount Street property were sold (assuming that it remains untenanted and on the market for sale), she would be able to reduce her mortgage debt on the Lead Street property by about $110,000 (assuming some expenses of sale), thereby reducing the mortgage to about $150,000. One consequence would be to increase her available income by about $615 per fortnight.

314. I have also dealt with the nature of their relationship, the competing claim of Ms Shields and what the Plaintiff received during the lifetime of the deceased.

315. Even though no provision has been made in the deceased’s Will for the Plaintiff, considering all of the matters I am required to consider, I am not satisfied, in the circumstances of this case, that the Plaintiff has been left without adequate provision for her proper maintenance and advancement in life. On this basis, also, her claim would also be dismissed.

316. However, were it necessary for me to do so, I also state that as a matter of discretion, I would not make an order in the Plaintiff’s favour. In this regard, although her counsel submitted it was “a throwaway line” (at T165.23 – T165.27), I note the Plaintiff’s evidence at T123.13 – T123.40:

Q. In the last paragraph of your affidavit you say that the real reason for bringing your claim is to preserve what you believe was the defendant’s (as said) wish, that’s correct, isn’t it?

A. Yes, absolutely.

HIS HONOUR: You mean the deceased’s wish?

BILINSKY: Sorry.

Q. The deceased’s stated wish to you--

A. Yes.

Q. --were just spoken about? Really that’s what this is all about, isn’t it? It’s about honouring, as you see it, the deceased’s wish--

A. Absolutely.

Q. --and your object, isn’t it, is to obtain some provisions so that you can carry out what you believe is his stated wish, isn’t it?

A. Yes.

Q. Lastly, you’ve--

HIS HONOUR

Q. As I understand the evidence you gave me a moment ago, the only stated wish that you’ve identified is that the deceased, you say, told you was he wanted to leave the Binalong property to the Yass Youth Centre?

A. Yes.”

317. In her first affidavit, however, the Plaintiff had stated:

“I seek provision from the estate of Wyatt in order to provide security and support for myself and to preserve Wyatt’s stated wishes.”

318. I have, of course, also taken full account of the other factual matters found in coming to this conclusion.

319. Accordingly, the Court:

1. Orders that the Plaintiff’s Summons be dismissed.

2. Orders that any argument as to the costs of the proceeding be listed on a date to be arranged when these reasons are published.

3. Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of how the costs of the proceedings are to be borne.

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Decision last updated: 28 February 2018