Bradley v Irvine; Irvine v Irvine - [2024] NSWSC 727

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727
Hearing dates: 21 – 24, 27– 28 May 2024, last submissions 11 June 2024
Date of orders: 17 June 2024
Decision date: 17 June 2024
Jurisdiction: Equity
Before: Pike J
Decision:
(1)   Direct the parties to confer and to seek to agree orders to give effect to these reasons.
(2)   Direct the parties to provide any agreed orders, or competing orders, to my chambers by no later than 5pm on 1 July 2024.
(3)   In the event there is no agreement as to costs, direct the parties to provide to my chambers by no later than 5pm on 1 July 2024 any submissions and supporting material on costs, such submissions not to exceed 3 pages.
(4)   Direct the parties to provide to my chambers by no later than 8 July 2024 any submissions and supporting material in reply on costs, such submissions not to exceed 3 pages.

Catchwords:
SUCCESSION – family provision – claim by adult stepchildren as alleged members of household and dependents of the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – where plaintiffs ceased contact with deceased after allegations of sexual abuse – deceased found not guilty of sexual abuse at trial – whether eligible persons – whether “factors warranting” the making of orders for provision out of the estate – whether deceased had moral duty to make provision for plaintiffs despite no contact
SUCCESSION – family provision – claim by de facto spouse under Succession Act 2006 (NSW), Ch 3 –where de facto spouse has been dependent on the deceased – where provision for de facto spouse inadequate

Legislation Cited:
Evidence Act 1995 (NSW)
Succession Act 2006

Cases Cited:
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bruce v Greentree [2015] NSWSC 1611
Dighton v Norwood [2024] NSWSC 318
Estate of Awad [2023] NSWSC 765
Fallow v Mullins [2012] NSWSC 406
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857
Page v Page [2016] NSWSC 1218
Page v Page (2017) 16 ASTLR 331
Rada v Smith [2024] NSWSC 273
Re Fulop Deceased (1987) 8 NSWLR 679
Rowley v Bouwmeester [2005] TASSC 34
Spata v Tumino (2018) 95 NSWLR 706
Williamson v Williamson [2011] NSWSC 228
Wilson v Wright [2024] NSWSC 519
Yee v Yee [2017] NSWCA 305
Yuan v Huang [2024] NSWSC 313

Texts Cited:
Nil

Category: Principal judgment
Parties:
In proceedings 2021/314246:

Cynthia May Bradley (First Plaintiff)
Karen Ann Bradley (Second Plaintiff)
Glennis Evelyn Bradley (Third Plaintiff)
Michael James Irvine (Defendant)

In proceedings 2022/36803:
Dawn Evelyn Irvine (Plaintiff)
Michael James Irvine (Defendant)
Representation:
Counsel:
K. Morrissey (Plaintiffs in proceedings 2021/314246)
L. Clarke (Plaintiff in proceedings 2022/36803)
B. Goodyear (Defendant in both proceedings)
Solicitors:
Martin Street Lawyers (Plaintiffs in proceedings 2021/314246)
Blackwell Short (Plaintiff in proceedings 2022/36803)
McIntosh McPhillamy & Co Legal Services (Defendant in both proceedings)

File Number(s): 2021/314246
2022/36803
Publication restriction: Nil

JUDGMENT

Introduction

For ease of understanding and intending no informality nor disrespect, I will refer to the main players in these reasons using their given names.
Maxwell Charles James Irvine (the Deceased) passed away on 3 May 2021.
At the time of his death he was in a de facto relationship with Dawn Irvine (Dawn). They had been a couple for approximately 35 years.
Dawn has three children by a previous marriage – Cynthia Bradley (Cynthia), Karen Bradley (Karen) and Glennis Bradley (Glennis).
In proceedings 2021/314246 (the Bradley Proceedings) each of Cynthia, Karen and Glennis seek an order pursuant to s 59 of the Succession Act 2006 (NSW) (the Act) that provision be made for each’s maintenance, education and advancement in life out of the Deceased’s estate.
In proceedings 2022/36803 (the Irvine Proceedings) Dawn seeks an order pursuant to s 59 of the Act that further provision be made for her maintenance, education and advancement in life out of the Deceased’s estate.
The defendant in each of the proceedings is Michael James Irvine (Michael), the Deceased’s eldest son from an earlier marriage and the executor of his estate.
Both proceedings were heard together before me on 21 to 24 and 27 to 28 May 2024 with evidence in one proceedings, evidence in the other. Mr K Morrissey appeared for Cynthia, Karen and Glennis, Ms L Clarke appeared for Dawn and Mr B Goodyear appeared for Michael in both matters.
Oral evidence was given by each of Cynthia, Karen, Glennis, Dawn, Michael, Peter and a psychologist, Mr Sam Albassit. Save for the critical issue of whether the abuse allegations are false, and evidence in relation to the alleged needs of Cynthia, Karen and Glennis, no serious credit issues arose.
For the reasons set out below, the claims of Cynthia, Karen and Glennis should be dismissed. An order for further provision in favour of Dawn should be made in a form to be agreed between the parties to give effect to these reasons. As requested, I will hear the parties on costs.

Overview of the basic background facts

A number of the relevant background facts were not seriously in dispute. They may be summarised as follows. I deal separately below with the relevant circumstances of each of Dawn, Cynthia, Karen and Glennis as well as a central core issue, namely what findings I make in relation to the sexual abuse allegations.
The Deceased married Helen Bradley (Helen) in 1972. They had two children – Michael and Peter Charles Irvine (Peter).
In February 1976, Dawn married Warren George Bradley (Warren). Warren and Helen are brother and sister. They had three children – Cynthia born 14 October 1978, Karen born 29 March 1980 and Glennis born 9 August 1981. Cynthia, Karen and Glennis were thus the Deceased’s nieces.
In 1983, Dawn and Warren separated.
The Deceased and Helen separated some time in about 1985.
In 1985/1986 or thereabouts, Dawn started a relationship with the Deceased.
The Deceased was a son of the late Verdun John Irvine (Verdun) who owned a property “Lowery” at Toogong, which is in the Central West region of New South Wales, about 300 km west of the Sydney CBD (Lowery).
The Deceased owned a property at Barrack Street, Toogong (the Toogong Property) which he purchased from his parents in about 1970. In about 1988, Dawn moved into the Toogong Property to live with the Deceased.
Joining Dawn and the Deceased at the Toogong Property were the children of each prior marriage, being:

Dawn’s children – Cynthia, Karen and Glennis; and

The Deceased’s children – Michael and Peter.

Not all five children stayed together at the Toogong Property every single night, as each set of children continued to have contact with their other biological parent.
At or about the time Dawn moved in with the Deceased, the Deceased, together with his mother, took over the running of Lowery. After Verdun’s death in 1992, there were family provision proceedings commenced, as a result of which a subdivision of Lowery was affected. The Deceased and his mother were granted a life interest in respect of the southern portion of Lowery and both continued to operate a farming business in that portion of Lowery. The Deceased otherwise operated a transport business.
In 1997, Cynthia and Karen left home, and ceased contact with the Deceased and Dawn. Consistent with the decision of Kunc J in Rada v Smith [2024] NSWSC 273 at [28], I have eschewed use of the term “estrangement” in these reasons.
Michael and Peter moved in permanently to the Toogong Property in about 1997 and each commenced working in the family farming and transport business.
In 1997 Glennis left home temporarily. In 1998, Glennis left home for good, and ceased contact with the Deceased and Dawn.
Each of Cynthia, Karen and Glennis contend that they left home as a result of sexual and other abuse suffered at the hands of the Deceased. Those allegations were denied by the Deceased during his lifetime and those allegations continue to be denied by Dawn, Michael and Peter in these proceedings.
In 2001, the Deceased was charged and tried on various counts arising out of allegations made by Cynthia, Karen and Glennis. A jury acquitted him on all counts.
In 2011, Peter stopped working in the family trucking business in order to work in the mines.
From about 2015 onwards, both the farming and trucking businesses were brought into the one business – the Toogong Partnership – the partners of which continued to be the Deceased, Dawn and Michael.
Dawn resigned from the Toogong Partnership in July 2020. The Deceased resigned in March 2021, leaving only Michael running the business. An expert retained by both parties valued the business as at March 2021 at $1,202,868. The Deceased’s 50% interest, which was, in effect gifted to Michael at this time, is valued at approximately $600,000.
On 3 May 2021, the Deceased passed away, leaving a will dated 12 April 2021 (Will). Dawn and Michael were appointed co-executors, but Dawn subsequently renounced her executorship, leaving Michael as sole executor. Probate was granted on 16 August 2021.
Clause 5 of the Will provided as follows:

5. My executors hold my estate on trust:
(a) To give the sum of five hundred thousand dollars ($500,000.00) to Peter.
(b) To give the whole of my interest in the partnerships conducted by myself, Dawn and Michael known as the MCJ Irvine Transport Partnership and the Toogong Partnership to Michael.
(c) To hold my property situated and known as 16 Barrack Street, Toogong, comprised in Certificates of Title Folio Identifiers 1-10/2/758984, 1/12222238, 1/12222228 and 1/758984 in this Will called “my home” on trust for Dawn to reside in my house for as long as she wishes during her lifetime on the trusts set out in Schedule 1.
(d) Conditional upon the gift in 5(c) and the Trusts in Schedule 1 to give my home to Michael.
(e) To give the residue of my estate to Michael.
(f) In the event that either Michael or Peter predeceases me leaving children who shall survive me then those children shall take equally the share their parents would otherwise have taken.

Schedule 1 provided:

SCHEDULE 1

I give the following directions to my Executor concerning my property situated and known as 16 Barrack Street, Toogong, in this Will called "my home'.
(a) Dawn may live in my home as long as she wishes providing she makes available for use by Michael that part of my home excluding the house and curtilage for his use conditional upon he
(i) paying the rates and taxes levied upon my home, the premiums on any insurance policies taken out by my Executors on my home and he keeps my home in repair to the satisfaction of my Executors and carries out any renovations, maintenance or improvements required to provide comfortable accommodation for Dawn in the same manner as she has shared with me during my life; and
(ii) to pay for Dawn’s telephone, electricity and other utility charges resulting from her use.
(b) The trust for the right to reside shall cease to apply on the death of Dawn or earlier in the event Dawn chooses to cease living permanently in my home for a continuous period of three (3) months without explanation.

The Bradley Proceedings were commenced by summons filed by Cynthia on 5 November 2021. An amended summons, adding Karen and Glennis as plaintiffs, was filed on 8 November 2021. The Irvine Proceedings were commenced by Dawn on 8 February 2022.

The Assets of the Estate

At the time of death

At the time of his death, the Deceased’s assets comprised:

The Toogong Property (estimated value $400,000);

An entitlement to receive a distribution of $864,828.81 from Verdun’s estate;

An entitlement to receive a distribution of $81,622.70 from the estate of the late Edith Irvine (the Deceased’s mother);

Superannuation entitlements of $93,951.14; and

Other cash and assets.

Net assets were estimated at $1,450,000.
In November 2022, the Toogong Property suffered severe flood damage that rendered it uninhabitable and destroyed its contents. Insurance proceeds have been received:

Approximately $999,920 referable to the Toogong Property itself. Development consent was recently granted to build a new dwelling on the property.

Approximately $139,800 referable to the damaged contents – the contents were jointly owned by Dawn and the Deceased and as such passed to Dawn on the Deceased’s death.

$68,960 for emergency accommodation – which were distributed to Dawn and never formed part of the estate.

At the time of the hearing

The parties prepared a schedule setting out their respective positions in relation to the value of the assets of the estate at the time of hearing. That schedule is annexed to these reasons. Dawn agreed with the position of Michael as to the value of the assets.
The schedule identifies several differences, the principal being the present market value of the Toogong Property. Given the view that I take as to the resolution of these cases, it is not necessary to resolve these differences.

The facts relevant to each of the claims

Cynthia Bradley

Cynthia gave evidence of a somewhat unhappy childhood living with the Deceased.
Her parents, Warren and Dawn, separated in around 1983 when Cynthia was about was about 4 or 5 years old – Cynthia having been born on 14 October 1978. She moved with her mother and two sisters to a refuge in Bathurst. They then moved to a property “Maryville” in Toogong. Cynthia agreed that these drastic upheavals in her home life were somewhat unsettling.
In about 1984, the Deceased and Dawn commenced a relationship and at some stage, the Deceased moved to Maryville to join Dawn and her three children. Dawn disputes whether the Deceased actually moved in with them at Maryville but nothing turns on this. They were a de facto couple at the time. In about 1988, they all moved to the Toogong Property.
As set out above, living in the house at the time were the Deceased, Dawn, Cynthia, Karen, Glennis, and Michael and Peter on weekends, although each of the children were also spending time staying with their other biological parent.
Cynthia lived with the Deceased and Dawn at Toogong Property until she left in about early 1997 (returning briefly in about mid 1997 only to depart for good shortly thereafter). During this period the Deceased provided for her, including all food, clothing, schooling, accommodation etc.
Cynthia gave evidence in her affidavits of life with the Deceased. Having regard to the cross-examination of Cynthia, it was difficult to know whether some of the observations she made in her affidavits – save for the sexual abuse allegations – reflected feelings or observations of Cynthia at the time at which the events occurred, or are reflections that she now has in hindsight. Either way, the evidence paints a somewhat unhappy childhood with the Deceased.
Cynthia described the Deceased as a house dictator, punishing her by ignoring her, swearing at her, hitting her and giving her the worst household chores. She saw him as being unfair. There was no evidence from Cynthia that she had any particular love or affection for the Deceased, either at the time or in hindsight.
Cynthia said that from about 1988 until she left home in 1997, every weekend that she was not visiting Warren (which was approximately every second weekend) and school holidays (approximately half of which were spent with Warren) she was working with her sisters, mother and stepfather at Lowery, performing various physical tasks. The work on the farm was said to be physically hard and long, for which she was not paid. She apparently missed some school and many social activities to work at Lowery. She also performed some work in relation to the family cattle transport business and around the farm as well as at the Toogong Property.
Cynthia agreed that the work she carried out at the Toogong Property was not uncommon for a child to do and benefited everyone in the household. Whilst Cynthia agreed that not every weekend when she was not with Warren was spent at Lowery, she maintained it was most weekends.
Cynthia also contended that the Deceased also tried to stop her from seeing her own father as much as she would have liked. It appears, however, that there was still considerable contact between Cynthia and Warren.
Cynthia gave evidence of, what were described in the proceedings as, the abuse allegations. It is not necessary for the purposes of these reasons to describe the allegations to the extent described by Cynthia. For present purposes, the following is a high level summary of the alleged abuse:

It began in about 1990 when Cynthia was approximately 13 years of age;

The Deceased would forcibly remove Cynthia’s top and look at her breasts – this continued until she was about 16;

The Deceased would take Cynthia’s top off and shake her to watch her breasts move;

The Deceased would watch Cynthia take a shower and on one occasion took pictures of her showering;

The Deceased would require Cynthia to undress and would look at her vagina and touch it;

On one occasion the Deceased digitally penetrated Cynthia.

Cynthia made these allegations to at least a school counsellor and DOCs in about early 1997 and subsequently to the NSW Police (on 13 March 1998). She also made an application for victims compensation and received $10,000 in November 2022. At the time that she made the application she did not know how long it would take to receive any money from the application.
In April 1997, when she was around 18 years of age, she left the Toogong Property and went to live with her grandparents. She said that this was because of the abuse she suffered at the hands of the Deceased. Glennis and Karen moved out with her as well, although, as set out below, Glennis moved back to the Toogong Property a little later in 1997.
Cynthia also moved back quite briefly to the Toogong Property in May 1997, but in July 1997 she moved to Forbes with her then boyfriend, Jason Beadon (Jason). She and Jason had a daughter, Dana, in 1998. They moved around quite a bit for work. Cynthia apparently dropped in for casual visits to the Toogong Property late in 1997 but thereafter had no contact with the Deceased or Dawn.
Cynthia admitted that she left home without any money and limited opportunities.
Cynthia gave evidence that Jason had a substance abuse problem and could not hold down a job for more than six months and as a result she decided to leave Jason. The substance was marijuana and Cynthia also admitted to being at least a casual user of the drug.
Cynthia had a series of short-term jobs after leaving high school but did not find full time employment until about 2003 when she was employed at Direct Shoe Warehouse.
In September 2009, she started dating Gareth Hunt (Gareth) and they married in 2014.
She currently lives with Gareth in rented accommodation in Canberra. She is presently employed at The Australian Centre for Moving Image (a museum at Federation Square in Melbourne) where she works four days a week, working from home. She describes her occupation as payroll specialist. She has a Certificate IV in Financial Services (Accounting) and a payroll management certificate.
Cynthia and Gareth put before the Court evidence as to their financial position at two points in time, first as at December 2021 and then May 2024. Gareth also swore an affidavit as to his financial position and was not cross-examined.
As at May 2024, their financial position may be summarised as follows:

Cynthia’s gross monthly income is $4,151.44, net $3,506.48, based on working 20 hours a week which she has been working since the start of 2024. When she returns to her regular work hours of 30.4 hours per week, she will earn $6,310.16 gross per month, $4,637.47 net;

Gareth is currently employed as a Business Systems Manager, earning $13,409.59 gross, $8,926.46 net per month;

Cynthia’s assets (owned solely) total $249,008.03, principally made up of superannuation, and her liabilities are $2,037.33;

Cynthia’s joint assets with Gareth, and one account shared with Karen and Glennis, total $49,478.86;

Gareth has superannuation of $299,110.64;

Cynthia estimated the monthly household expenses to total $7,051.69.

Gareth is apparently not working much at present as a result of certain medical issues recently experienced. He apparently requires considerable assistance which has been provided by Cynthia. As a result, Cynthia has had to work reduced hours and Gareth gave unchallenged evidence that he is very concerned about his future health, lifestyle, employment and finances. It would appear, however, that Gareth has income protection insurance which would likely provide some sort of benefit if Gareth is not able to work for a considerable period.
Cynthia also recently “received” $72,510.60 out of Warren’s estate. Warren’s spouse filed a family provision claim which was settled out of court and considerably reduced the monies she was otherwise expecting to receive. These monies were placed into a controlled monies account with her solicitors in these proceedings and have been used to pay for her legal fees in these proceedings.
Cynthia gave evidence as to why she wanted an order for provision from the Deceased’s estate.
First, she said that she and Gareth were planning to buy their first property together. She agreed that the two hurdles to buying that property were saving up a deposit and being able to afford the mortgage payments. She sought provision for both. She gave evidence of wanting to buy a home in North Canberra and gave evidence of recent sales with an average sale price of $637,125, with a 10% deposit being $63,712.50. An order for provision in the amount of the deposit would save Cynthia and Gareth having to withdraw funds from superannuation. Monthly mortgage payments would be approximately $3,877 and a further provision would assist greatly with reducing the amount of the monthly mortgage payment.
In cross-examination, Cynthia agreed that the combined net monthly income of her and Gareth is $12,500, meaning the household has a monthly surplus of about $5,500 over the estimated expenses of $7,051.69. As such, she would be able to afford the estimated mortgage repayments out of current monthly household surplus, provided someone paid the deposit and any stamp duty.
Cynthia said that she and Gareth has been salary sacrificing into superannuation since 2021. If all the monthly household surplus had been saved since only the end of 2021, a sum of $161,000 should have been saved. Cynthia agreed that this amount had not been saved.
In terms of the need for a deposit, it was put to Cynthia that she should have used the inheritance from Warren’s estate to buy a house rather than use it to pay legal fees in these proceedings.
Cynthia expects that she and Gareth will both have to keep working at their current rates until they retire to fulfil their goals of owning a home and possibly being mortgage free. As was pointed out in cross-examination of Cynthia, she is only working four days a week and having to work until you retire is a fact of life.
Cynthia also gave evidence of various health concerns and increased car repairs. Most importantly of these concerned her mental health. She believes she is suffering from poor mental health as she often feels depressed and overwhelmed by her past.
On 7 May 2022, Cynthia recommenced therapeutic treatment with Ms Fiona Stevenson, psychotherapist to assist with her mental health every week and then fortnightly. On 18 December 2023, during a telephone consultation with Ms Stevenson, Cynthia was assessed as having suicidal thoughts and an ambulance was called and Cynthia was admitted to the adult mental health ward at Canberra Hospital.
Cynthia is now in the process of completing the Next Step program using a Cognitive Behaviour Therapy approach to prevent relapse.
Cynthia has also commenced seeing Ms Pippa Matthews, a trauma specialist. The cost of each session is $198 per session and Cynthia’s list of monthly expenditure suggests she is seeing or plans to see, Ms Matthews twice a month.
Cynthia has private health insurance, and most services to date have been provided by Medicare such that Cynthia has not incurred significant costs to date.
Her concern in this regard is really a concern about the future – related to both Gareth’s health and Cynthia’s own health with any impact the ability of each to work. At present, however, on the financial information provided, she should be able to satisfy all of her stated needs.
I am not satisfied on the evidence that Cynthia has any significant needs to advance in life which cannot be funded out of her existing savings and surplus funds.

Karen Bradley

Karen was born on 29 March 1980.
Karen gave evidence is similar terms to Cynthia in relation to her period living with the Deceased and Dawn.
From about 1988 until 1997 when she left home, she would work on Lowery every second weekend which she was not staying with Warren. She would also work on the farm during school holidays and after school, sometimes missing school to work on the farm. She worked ten hours a day, doing hard physical work including into the night she did not receive any payment for this work.
When not at Lowery, Karen was undertaking domestic duties at home, including the laundry, mowing the lawns, doing the dishes and helping cook dinner. In turn, the Deceased provided for Karen’s upbringing whilst she lived with him including food, clothing, accommodation and schooling etc.
Karen’s evidence as to the alleged abuse was similar to Cynthia’s. The following summary suffices:

From about 1984 until 1988, the Deceased encouraged Karen and her sisters to run around the house without any underwear on and to hang upside down from the clothesline wearing dresses but no underwear;

From 1992 to 1996, the Deceased would walk in on Karen when she was showering and try to shower with her, after grabbing her hand and placing it on his penis;

Restraining one of Karen, Cynthia or Glennis, removing their tops and shaking them;

On one occasion making Karen remove her underwear to look at her vagina.

In addition to the alleged sexual abuse, Karen also gave evidence of being treated harshly by the Deceased, who would often say “you’re not my daughter”. He also apparently hit Karen with “polypipe, leather strap or stock whip”. From time to time he would lose his temper with Karen. He also apparently stopped Karen from seeing Warren as much as she would have liked, as well as her paternal grandparents (Warren’s parents). He treated Michael and Peter better than Karen.
Karen agreed in cross-examination that she partially hated the Deceased. She did not give any evidence of any particular love or affection that she had for the Deceased.
Karen reported the alleged sexual abuse in 1997. She made a claim for victims compensation and was awarded $25,000 in February 2005.
Karen left the Toogong Property in about April 1997, never to return. She has had no real contact with Dawn or the Deceased since then.
Karen has been living in a de facto relationship with her partner, Peter Collins (Peter) for over 20 years, and they have two children; a daughter Georgia who is approximately 20 years old, and a son Harry, who is now 16. They live in a house in Bolwarra, near Maitland, which is registered in Peter’s name and subject to a mortgage.
Karen currently works as a shotfirer at Glencore Ravensworth, having recently obtained the necessary qualifications.
Karen put into evidence her financial position at two points in time. First, as at 22 December 2021, when she estimated her assets and liabilities as well as provided details of her earnings and monthly expenses. She then provided an updated affidavit as at 10 May 2024.
As at 22 December 2021:

Karen’s gross monthly income was about $6,103.86, and net monthly income $4,728.73;

Her family’s – being Karen, her partner and their two children – monthly expenditure totalled $5,485.52;

Her total assets owned solely totalled $81,274.58, joint assets totalled $4,926.06, with liabilities of $9,492.77.

At this time, her long term partner, Peter, was then employed as a Maintenance Manager, earning $15,000 per month gross, $10,204 net. At this time, he also had assets totalling $1,262,163.53 and liabilities of $678,355.76.
By 10 May 2024, things had apparently changed somewhat.
Whereas Karen was previously employed on a part time basis, she had now been made permanent and was earning $8,232.14 gross per month, $5,392.14 net, an increase of approximately 34%. Peter is now earning $18,400 per month gross, $12,037.54 net, an increase of approximately 22%. As such, they now have a combined annual income of $318,000 gross.
The asset position of Peter and Karen can be summarised as follows:

Karen assets $15,500.00;

Karen superannuation - $87,869.10;

Karen liabilities - $5,234.61;

Joint assets totalling - $59,447.98;

Peter assets - $947,500;

Peter superannuation - $543,918.88;

Peter liabilities - $678,488.10;

Household monthly expenses - $16, 867.73.

One notable change to the asset position is that Peter has bought a boat, which is heavily financed.
Some time was spent during the hearing cross-examining Karen in relation to the claimed monthly expenses of $16,867.73 – a three-fold increase on the previous estimate. This later estimate was prepared having regard to her bank account statements whereas this task was apparently not carried out in relation to the earlier estimate.
There was considerable focus on the item “Entertainment” which was not in the earlier estimate and which totalled $3,002.85 per month. Karen agreed that both she and Peter worked long hours and thus were not ones to be going out entertaining during the week. When pressed, Karen said that included in “Entertainment” would be things such as some holidays, online shopping, take away meals, alcohol, subscriptions to streaming services such as Netflix and the like.
Karen also acknowledged that she had recently received $50,000 from her father’s estate, being the repayment of a personal loan which she deposited into the family’s bank account. She also “received” $72,510.60 being her share of her inheritance under her late father’s will although reduced as a result of a family provision claim brought by her father’s spouse, which was settled out of court. These monies had been deposited into a controlled monies account operated by her solicitors in these proceedings and used to pay legal fees for these proceedings.
In light of this financial position, it is difficult to avoid the conclusion that the non-satisfaction of the “needs” which Karen identified in support of her application for provision out of the Deceased’s estate are more the product of lifestyle choices in prioritising entertainment and the like over the so-called needs identified.
First, Karen said she would like to be afforded the opportunity to seek admission for a Bachelor of Engineering at the University of Newcastle and complete that degree. She had previously completed one year of a Bachelor of Construction but was not able to progress in this degree because she fell into financial difficulty and had to return to work. On the current university fees, the new degree has $67,666 for tuition fees. As was pointed out to Karen in cross-examination, the total cost could almost have been covered by the $50,000 personal loan repayment from her father’s estate.
Second, Karen referred to her suspicion that her motor vehicle, a 2010 Landcruiser Prado – one of three vehicles in the family – required further mechanical works. No estimate was provided as to the value of these works or indeed what work was likely required so the claim can be put to one side.
Third, Karen contended that a reduction in the monthly mortgage repayments by reducing the principal loan would make a substantial difference to her family’s monthly expenditure. If the mortgage was reduced by $100,000, the monthly payments would drop by $738. It would appear, however, and Karen admitted as much, that no real attempt had been made to make increased mortgage payments even though $3,000 was being spent per month on entertainment.
Fourth, Karen identified certain maintenance and improvements to their property totalling $126,000, including $8,000 for the manufacturing and installation of security fencing. Again, it was pointed out that some of the money from her father could have been used for these items if indeed these were priorities.
The position in relation to the alleged need for security fencing is particularly problematic. Karen contended that “my house is not secure as anyone can enter my backyard from the front of my house”, yet she accepted that the position had existed for some time and would cost $8,000 to carry out but nothing had been done about it. Again, this is against the background of what money is apparently being spent on, including $3,000 per month on entertainment.
If indeed the need for security fencing was a true priority, it could easily have been carried out with some moderate “belt tightening”.
Finally, Karen contended that she wished to receive therapeutic treatment from a regular psychologist on a fortnightly basis or weekly basis in Newcastle. Karen contended that the cost of the appointments and requesting time off work have prevented her ability to receive treatment. She gave an example of needing a four hour session recently at a cost of $220 per hour, total cost of $880. Karen agreed in cross-examination that she could ‘tap into’ the $3,000 per month spent on ‘entertainment’ to pay for these appointments.
Karen is in quite a sound financial position for her stage in life. She has not demonstrated any relevant need for further provision.

Glennis

Glennis was the youngest of the three Bradley children, born on 9 August 1981.
Her evidence had a number of similarities and some differences to that given by Cynthia and Karen. One of the key differences was that Glennis purported to withdraw the allegations in 1997, contending that Karen had put her up to making up the allegations. I deal with this issue below when I deal with the findings I make on the sexual abuse allegations.
Glennis says that the Deceased commenced living with them in 1984. Other witnesses put it a little later but nothing turns on this and Glennis was only two years old at the time. She lived with the Deceased and Dawn until she was 16 years old and was dependent on him during that period.
The Deceased moved into the Maryville property with Dawn, Cynthia, Karen and Glennis and then in about 1988, they all moved to the Toogong Property. Glennis’ recollection is that Michael and Peter stayed every weekend.
From about 1988 until she first left in 1997, Glennis worked on Lowery during school holidays and every second weekend when she was not staying with Warren. She would work approximately 10 hours per day on the farm, without pay and often missed days of school to work on the form. The work was hard physical work.
In addition, Glennis carried out various domestic duties at the Toogong Property.
The Deceased in turn, paid for food, clothes, school tuition, accommodation and living expenses etc. Glennis did not give any evidence of any particular love or affection that she had for the Deceased.
Glennis’ affidavit evidence as to the abuse she experienced at the hands of the Deceased may be summarised as follows:

From an early age whilst at Maryville she recalls the Deceased standing over her and her sisters while they were in the bath and would shower on top of them or watch them shower;

One occasion of hanging upside down from the clothesline naked while the Deceased took pictures;

The Deceased groped Glennis’ breasts. This commenced when she was in Year 5, aged 11. There were also many occasions where she would wake up to find the Deceased’s hands on her breasts;

One incident where the Deceased told Cynthia and Glennis to take their underwear off and lay on the bed and he would look at their vaginas;

Another occasion when the Deceased told Glennis to take her pants and underwear off so he could check if she had her period;

The Deceased requesting Glennis to have sex with him;

One occasion when the Deceased digitally penetrated her.

Glennis reported the alleged abuse in 1997 and subsequently made a complaint to NSW Police. She applied for victims compensation and received $25,000 in May 2005.
On or about 14 April 1997, Glennis left home with Karen. Glennis says this was due to the abuse they suffered at the hands of the Deceased.
On or about 9 May 1997, she returned home to the Toogong Property to live with the Deceased and Dawn. Shortly thereafter she made a statement withdrawing the allegations and stating that Karen told her to make them up. In cross-examination Glennis contended that she was brainwashed into saying this by Dawn and the Deceased. This was obviously disputed and I deal with it below when I deal with the findings I make on the sexual abuse allegations.
Glennis has been in a de facto relationship with Dallas Cameron (Dallas) since 2008 They have two children together, Joslyn born 29 November 2010 and Ruby born 3 May 2012.
Glennis works in Dallas’ business, Westlake AG Inputs Pty Ltd (Westlake) which is involved in rural merchandise, freight and contracting. They live at a property at Graham Road, Lake Bolac in Victoria (near Ballarat), which they purchased on 10 January 2020.
Glennis gave evidence of her and Dallas’ financial position at two points in time, on 23 December 2021 and on 13 May 2024. Evidence was also adduced from Westlake’s accountant as at May 2022. This evidence from the accountant, for some unexplained reason, was not updated. Glennis also said in cross-examination that she did not believe that the accountant had sighted her most recent affidavit.
Glennis’ financial position was somewhat complicated by the structure that exists in relation to the business. Glennis was cross-examined in relation to this structure and the financial position but was not able to assist on a number of aspects.
As at May 2024 doing the best I can, the position appears to be as follows:

Glennis’ property owned solely by her totals $4,750.92 and she has superannuation of $57,771.33. One contentious aspect of this estimate was that ‘nil’ value had been attributed to the Westlake business in which Glennis owns the shares as trustee for the family trust. The business has operated for a number of years and employs at least ten people. Glennis stated that she “really [doesn’t] know how the company is set up” and that the accountant would need to explain that, which she has not. The success of the business is obviously tied to seasonal factors applicable to many rural businesses, but the evidence is quite unsatisfactory;

Joint assets with Dallas total approximately $726,555.42 including the Graham Road property valued at $726,000. Glennis estimated her share of the monies held by her lawyers jointly with Cynthia and Karen as $10,318.31;

Joint liabilities were estimated at $1,843,977.76, comprising a mortgage on the Graham Road property of $316,460.76 and a Div 7A loan in relation to the business of $1,527,517.00. This last entry is tied up with the issue of the value of the business.

Dallas’ financial position appears to be as follows, having regard to the annexures to Glennis’ 13 May 2024 affidavit (noting that no affidavit was filed by Dallas):

Assets solely in Dallas’ name total $13,800 with superannuation of $17,000;

The D+E Cameron Trust has assets of $797,000 and liabilities of $114,466.00;

The DC Family Trust has assets of $285,000 being the estimated value of a property at Montgomery Street, Lake Bolac, on which there is a mortgage of $168,559.00. The Montgomery Street property is occupied by seasonal employees of the business who pay part of their salary as rent.

Given Glennis’ lack of knowledge of the detail, and the fact that no up to date evidence was sought to be adduced from Melissa Cunliffe or that she sighted and approved Glennis’ 13 May 2024 affidavit, it is difficult to have any clear position of Glennis’ financial position. Whatever may be the picture painted in Glennis’ 13 May 2024 affidavit, the fact is that she is the shareholder (albeit as trustee for the family trust), of a business that employs at least 10 people. The balance of the Div 7A loan account also suggests that substantial funds have been provided to Glennis and her family by the business. There appears to be considerable equity in each of the Graham Road and Montgomery Street properties. There are also likely cyclical cash flow issues that exist in a rural business such as Westlake.
Glennis gave, at times, quite emotional evidence about her struggles, including financial struggles. One can well understand her position, dealing with these proceedings, raising two children and working in a busy business. The difficulty however, is that the Court has not been presented with any clear evidence as to her financial position against which to test the needs she identified: see, for example, Bruce v Greentree [2015] NSWSC 1611 at [168]-[171] per Hallen J, and the cases there cited.
Glennis included in her affidavit evidence details of her monthly income but accepted in cross-examination that this was not correct in that it did not include at least rent from the Montgomery Street property.
In terms of monthly expenses – as at December 2021 they were estimated to be $6,271.28 per month but had almost doubled to an estimated $11,582.51 per month as at May 2024, including $2,768.72 of “Miscellaneous expenses”.
Glennis identified three broad categories of financial need.
First, provision to reduce the mortgage on the Graham Road property. Reducing the mortgage by $100,000 would reduce monthly expenses by $391. This is only a three percent reduction in total monthly expenditure.
Second, money for completing renovations on Graham Road. The total cost is estimated at $30,000, of which $15,000 has already been paid. $15,000 was thus sought by way of further provision. Glennis admitted, however, that if further provision was not made by the Court, she could pay for it out of amounts she had saved up.
Also, Glennis, like her sisters, “received” $72,000 from Warren’s estate. Of this money, $10,000 was spent on braces for Glennis’ eldest child, leaving $62,000 which has been put towards legal fees in these proceedings. Glennis was also offered $55,000 to compromise these proceedings which she did not accept because, no doubt among several reasons, it would have prevented Glennis from making a family provision claim on Dawn’s estate when she passes away.
Third, provision was sought to send Glennis’ youngest child to a private school to join their eldest child, including to board a couple of days a week. The total cost is $10,780 per year, $898 per month, or about $225 per week. It is difficult to see this as a true need as opposed to something it would be nice to have and it is difficult to be satisfied that Glennis’ financial position is such that it cannot be afforded. As set out in the previous paragraph, there is also the diversion of good money (from Warren’s estate) to pay for legal fees in the present case.
On the evidence presented, with its shortcomings, I am not satisfied that Glennis has demonstrated any need for further provision.

Dawn Irvine

Dawn Irvine was born on 8 January 1956. Although she never married the Deceased, she took his surname by deed poll.
She gave evidence of being in an abusive relationship with Warren. She left the marriage, with her three young children and little more than a car, and moved to a refuge in Bathurst in about 1983. She had no money and no bank account. She subsequently moved to a rented property at Maryville. She was placed on a supporting parents pension and received rent assistance.
According to Dawn, she and the Deceased commenced a relationship in late 1986. Others suggest it may have been earlier but it is not necessary to reach a conclusion about this. The Deceased either moved in with Dawn and her daughters at Maryville or spent a lot of time there. They all moved into the Toogong Property in about 1988. From this time onwards the Deceased supported Dawn and her three daughters. The Deceased was operating a transport business, MCJ Irvine Transport at this time as well as helping his parents run Lowery. Dawn assisted Max and his parents (principally his mother after his father fell ill) at Lowery.
After Verdun died in 1992, there were family provision proceedings which resulted in Lowery being subdivided. The Deceased and his mother continued to farm the southern portion of Lowery with Dawn’s assistance.
From the time that Dawn moved to the Toogong Property, in addition to assisting at Lowery, Dawn assisted the Deceased in the conduct of the trucking business, taking phone calls, organising loads and helping with paperwork.
The Deceased was badly hurt in 2012 after an accident in the cattle yards. He suffered broken ribs and some vertebrae. Dawn cared for him during this period.
By all accounts, Dawn had a loving relationship with the Deceased for approximately 35 years. She stuck by him through the sexual assault allegations and the subsequent criminal trial, losing all contact with her daughters in the process. She denies, and continued these denials in cross-examination, that there was any abuse.
Under the Deceased’s Will, Dawn has, in substance, a life interest to reside in the Toogong Property. After the flood she lived with Peter and his family for a period and now lives in a temporary pod on the property whilst a new residence is constructed. Dawn lost virtually everything in the flood.
She gave evidence of her desire to remain living at the Toogong Property in the newly constructed residence (when this occurs) for as long as she can. The property has sentimental meaning to her, and she has built a social network around Toogong.
Dawn received a flood relief payment of $25,000 from the NSW Government on 15 September 2023. She also received, or has access to, the insurance proceeds on the contents of the Toogong Property.
She also currently receives $500 per week from Michael in his personal capacity, as rental for the storage of his machinery in the shed on the property and to compensate for her time to monitor and maintain the security of the shed.
She expected to receive Max’s superannuation as the nominated beneficiary with a value of approximately $93,000. However, apparently because there was no binding nomination in effect at the date of death, these monies have been paid to the estate.
Given her age, Dawn obviously has limited to no future employment prospects. It is likely, however, that she is now eligible for the aged pension. Dawn has not yet applied whilst these proceedings were ongoing and she is receiving $500 a week from Michael.
Her current assets are:

2011 Holden Cruz with a value of $4,000;

Orange Credit Union account - $28,000 (including NSW Government flood support payment);

First Choice Credit Union account - $59,000 (includes proceeds of GIO insurance settlement for temporary accommodation).

Dawn also gave unchallenged evidence of the Deceased’s testamentary intentions. She and the Deceased had many discussions over the years to the effect that “the girls are not to get anything from us ever again” once the 2001 Cowra Court case against the Deceased concluded.

Michael and Peter

Michael and Peter also gave evidence and were cross-examined. Their credit was not seriously challenged.
Prior to the hearing, Michael made it clear that he no longer put his personal financial circumstances forward as relevant to any of the claims for further provision out of the Deceased’s estate. During the course of the hearing, and prior to giving evidence, Peter took the same position. Accordingly, the evidence which each had served as to their financial circumstances was not read.
Each of Michael and Peter gave evidence of having a close and loving relationship with their father, the Deceased. After their parents’ separation, they lived mostly with their mother but would spend time with their father on weekends and school holidays.
In Michael’s case, he completed his schooling in 1997 and began working full time for the Deceased without wages. He lived with the Deceased and Dawn at the Toogong Property from 1997 and has continued living there on and off all of his life. By about 1998, he had stepped up and started organising and managing the truck business as well as helping manage the farm.
Michael stuck by the Deceased during the criminal court case and gave evidence of the toll that it took on the Deceased and Dawn. He gave evidence that during the court case his father said to him words to the effect:

Your step-sisters do not deserve anything because of their lies and deceit. They deserve nothing because of the allegations they claimed and forward [sic] what they put Dawn, me and you boys through. Any gift I intended to leave the girls in my Will has gone into this Court case.

Michael denied any wrongdoing by his father and also gave detailed evidence responding to the allegations made by each of Cynthia, Karen and Glennis insofar as he was involved. He was not seriously challenged on this evidence in cross-examination. He had direct involvement in one of the allegations made by Glennis – when they were changing the wheel bearings on the boat trailer – and denied there was any abuse.
Michael was a partner with his father and Dawn in both the trucking and farming businesses – which were merged in 2015 – and since March/April 2021 has been the sole operator of those businesses.
Michael is currently arranging for a new house to be constructed on the Toogong Property using the insurance proceeds. Development consent has recently been granted by Cabonne Council. Michael gave evidence, over objection, at a very high level, that he expects that all of the insurance proceeds will be spent on rebuilding. Time will tell whether that proves to be the case.
Peter gave evidence that whilst he resided with his mother until he was 16, he regularly stayed with the Deceased and Dawn on weekends and school holidays. When he was 16, he and Michael moved in permanently with Dawn and the Deceased at the Toogong Property.
After leaving school in 1997, Peter worked fulltime on Lowery with the Deceased, Dawn, Michael and for a time the Deceased’s mother, Ruth. When he was 18 he started driving the Deceased’s trucks and became a partner in the trucking and farming businesses. He and Michael worked, on average 12-14 hour days, including most weekends.
He continued to reside at the Toogong Property until 2007 and worked as a partner in the business until 2011 when he left the business to earn regular wages at Cadia Mine. During the time that he worked in the family businesses he was not paid a regular wage for either his truck driving or work on the farm. Only his expenses were covered by the business.
Peter gave evidence that the Deceased often said to him, Michael and Dawn words to the effect:

Once I get the farm sorted, either if I get the farm, or if I get money for my share of the farm, it will be left to you lot.

On several occasions after Peter left the family businesses, the Deceased said to him words to the effect:

I will give you your share once the farm is sorted.

In 2021, after the Deceased was diagnosed with cancer, he said to Peter words to the effect:

I am writing my Will where I will give you $500,000 for your share of the partnership for your unpaid wages and super.

Peter also supported the Deceased through the criminal proceedings including assisting with the payment of legal fees. He gave evidence of the toll that he observed the proceedings took on the Deceased and Dawn and the extra effort that he and Michael had to put in during this period to keep the businesses running.
Peter also gave evidence denying the sexual abuse allegations insofar as he was alleged to be involved.

The evidence of Mr Albassit

Each of Cynthia, Karen and Glennis sought to rely on reports of Mr Sam Albassit, a psychologist. Mr Albassit provided separate reports dated 15 May 2024 in respect of each of Cynthia, Karen and Glennis. Mr Albassit initially made earlier reports which were replaced by the 15 May 2024 reports, after objection was taken by counsel for Michael to the entirety of the earlier reports on a variety of bases. I admitted these later reports of Mr Albassit over objection on the basis that they purported to support the condition alleged by each of Cynthia, Karen and Glennis: see [35.6] of Practice Note SC Eq 7. Mr Albassit was cross-examined briefly.
Mr Albassit’s opinions are of little utility in circumstances where Mr Albassit admitted that he was asked to assume that what he was told was correct, namely that the alleged abuse in fact occurred. He agreed that if the abuse allegations were not true, he would change his views. None of Cynthia, Karen or Glennis seek findings as to the truth of the abuse allegations. Mr Albassit was not asked to consider the basis on which the case was in fact conducted, namely, that each of Cynthia, Karen and Glennis believed that they had been abused.

Estimated Legal fees

Whilst perhaps not relevant at this stage, it should be noted that the actual and estimated (up to the conclusion of the hearing) legal fees incurred by the parties are very considerable. They may be summarised as follows:

Party to proceedings

Estimated costs

Bradley Proceedings (three plaintiffs)

$303,325.18

Bradley Proceedings (defendant)

$263,969.10

Irvine Proceedings (plaintiff)

$104,500.00

Irvine Proceedings (defendant)

$41,224.70

On an indemnity basis, the total costs are estimated at $713,018.98.

Relevant legal principles

I recently summarised, at a general level, the relevant legal principles in Dighton v Norwood [2024] NSWSC 318 (Dighton) at [87]-[107]. I do not repeat what I there said.
I add the following, having regard to the issues alive in the present case.
First, Dighton involved a claim by a spouse. In the case of Dawn, she was a de facto spouse of considerable duration – some 35 years. She was, in substance, the surviving spouse of the Deceased and the principles – accepting that they are not rules of law or statutes – set out in the case law, have relevance to Dawn’s claim.
Second, in the cases of Cynthia, Karen and Glennis, where they were not the natural children of the Deceased, they need to establish:

They are eligible persons by reason of s 57(e) of the Act – being a person who was, at any particular time, wholly or partly dependent on the Deceased; and

There are factors warranting the making of an application for provision – s 59(1)(b) of the Act.

There was no dispute that such of Cynthia, Karen and Glennis satisfied the first requirement. The “factors warranting” requirement is ordinarily taken to mean that there are circumstances which, when added to the facts that make a plaintiff an eligible person, make that plaintiff a natural object of testamentary recognition: Re Fulop Deceased (1987) 8 NSWLR 679; Spata v Tumino (2018) 95 NSWLR 706 (Spata) at [95] per Payne JA (with whom Macfarlan JA agreed).
In the context of step children, Payne JA in Spata stated (at [97]):

[97] Consistently with the decision in Re Fulop, the starting point for applying s 59(1)(b) of the Succession Act is that an eligible person such as an adult stepchild of the deceased is not normally regarded as a natural object of testamentary recognition by the deceased. In order to satisfy s 59(1)(b), John must therefore establish that there are circumstances that justify regarding him as a natural object of testamentary recognition by Gina. Those circumstances must go beyond the bare fact of the familial relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant: Lodin at [114] (per Sackville AJA); Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [13]- [15] (per Basten JA).

In Yee v Yee [2017] NSWCA 305 (Yee), McColl JA (with whom Gleeson JA and Simpson JA relevantly agreed) stated at [175] and [177] (emphasis added):

[175] The matters which rendered William an eligible applicant by virtue of s 57(1)(e) (dependency while a youth and membership of Norman’s household) had ceased, in my view, to have any real significance over the period of their relationship as a whole. The question had to be determined as a matter of substance and not, in my view, as William sought to do by invoking labels such as that he should have been regarded as Norman’s foster child. In any event, in my view, seeking to invoke that descriptor in the circumstances is inapt. A foster child is a child raised by someone who is not his or her natural or adoptive parent. While I have no doubt that loving relations exist in foster families, such a relationship carries no necessary connotation such as William seeks to establish that the foster child is one who might be expected to be a natural testamentary object of the foster parents.
…
[177] Whether or not William may once have regarded Norman as a father figure, (and even that is not, in my view, clearly established) that emotion had clearly dissipated to the extent that he made no attempt to see Norman while he was dying. This was telling evidence which sounded loud against the proposition that William was a person who Norman should regard as a natural object of testamentary recognition. The fact that William lied about trying to contact Norman during that period indicated a consciousness on his part that the truth in that respect would not have assisted his case. As the primary judge found, William’s behaviour during this period was hardly consistent with a person who had a close relationship with Norman.

I also bear in mind that the question of whether there are factors warranting the making of an application under s 59(1)(b) is distinct from the question of whether adequate provision has been made, although both involve a broad discretion and that in any given case there will be facts that are relevant to both stages of the analysis. The first question under s 59(1)(b) is a “jurisdictional” question: see Page v Page (2017) 16 ASTLR 331 (Page) at [38] per Leeming JA.

Relevance of sexual assault allegations

In Page v Page [2016] NSWSC 1218, Hallen J made a number of observations in relation to the relevance of sexual assault allegations in family provision claims. At [57]–[60] his Honour stated:

[57] In his affidavits read in these proceedings, Warren painted a far more graphic, and extensive, picture of the sexual assaults said to have been perpetrated by the deceased, which is not necessary to repeat in these reasons. In my view, this Court, in these proceedings, should not determine whether the allegations of sexual assaults that have been made have been established. This type of allegation should not, normally, be determined after the death of the alleged perpetrator, in civil proceedings for a family provision order, on the balance of probabilities. Those allegations are being made against a person who is unable to defend himself. Others involved in the life of the deceased have little, or no knowledge, of the truth of such allegations.
[58] These proceedings should not be the vehicle by which allegations of sexual abuse should be determined. Yet the current proceedings appear to have been conducted by or on behalf of Warren, almost completely, upon the basis that the deceased had a duty in his Will to make good to him the loss and damage said to have been suffered as a result of the alleged sexual assaults.

[59] In Williamson v Williamson [2011] NSWSC 228 at [124] – [127] (albeit in respect of parental behaviour) I wrote:
“A claim under the Act does not encompass reparations, or compensation, to an applicant for the deceased as his, or her, parent having failed in his, or her, legal, or moral, duty to be a good and responsible parent of the child: Re Bull; Bentley v Brennan [2006] VSC 113 at [30]. As I said in Savic Kim [2010] NSWSC 1401 at [82]:
It is not the purpose of the Act to punish, or redress, past bad, or unfeeling parental behaviour, where that behaviour does not still impinge on the applicant’s present financial situation.
Also, it is not the function of the court to provide a legacy, by way of damages, for abuse. Immoral conduct of the deceased, whilst it may provide a necessary explanation for the conduct of an applicant towards him, or her, and may even provide an explanation for the applicant’s mental state (if established), giving rise to additional needs, such conduct does not provide the yardstick by which provision for the plaintiff should be measured: Cameron v Cameron [2009] SASC 27.
Equally, the Act is not legislation which permits provision to reward past services: Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, at 137.
This does not mean that the deceased’s conduct will be irrelevant to his, or her, duty to make provision for an applicant. Where that conduct has the effect of depriving an applicant for provision of opportunities in life, or otherwise, and there is some causal connection between it and the applicant’s need for provision, the court may take that into account in determining whether proper provision has been made: Litchfield v Smith & Tingate [2010] VSC 466 at [57].”

[60] In Curran v Harvey [2012] NSWSC 276, at [124], I added:
“The Act was "not passed to enable a Court, perhaps many years after the event, to make retrospective reparation to a person in respect of whom a deceased had failed years earlier, to comply with a legal, or familial, or moral obligation, where any effect of that failure had not continued up to the deceased's death": Re Jennings Dec'd [1993] EWCA Civ 10; [1994] Ch 286, per Sir John May. The authority of the court to intervene does not depend simply upon a mere demonstration of morally inadequate behaviour on the part of the deceased: Baird v National Mutual Trustees Ltd & Attorney General for State of Victoria (Supreme Court of Victoria, 22 November 1995, unreported, per Harper J).”

An appeal from Hallen J’s decision was dismissed: see Page.
There are, however, cases where it has been suggested that if the Court determines that the allegations of sexual assault are false, that may totally disentitle a claimant: see Rowley v Bouwmeester [2005] TASSC 34 (Rowley) at [40]; Williamson v Williamson [2011] NSWSC 228 (Williamson) at [132] per Hallen AsJ.
Other cases appear to have been determined on the basis that a belief on the part of the plaintiff that the conduct occurred is sufficient to explain the conduct of the plaintiff towards the deceased and the Court does not need to determine whether or not the allegations are true. Williamson was one such case. Fallow v Mullins [2012] NSWSC 406 is another.
Michael’s counsel contended that most of these cases – where a belief has been held to be relevant – proceeded on the basis of a concession or acknowledgment by the estate as opposed to the Court determining what is relevant when the issue was contested. A belief does not satisfactorily explain an estrangement and is therefore irrelevant.
Counsel for the plaintiffs in the Bradley Proceedings made it clear in opening that he did not contend that the Court was required to find that the alleged sexual assaults occurred. Rather, he contended that it was sufficient for the Court to conclude that each of Cynthia, Karen and Glennis believed that they occurred.
Michael contended that the Court should conclude that the alleged sexual assaults did not occur and that, like the position adverted to by Blow J in Rowley, the making of the allegations disentitled each of Cynthia, Karen and Glennis from succeeding.
The fallback position propounded by Michael was that the Court is not able to decide one way or the other as to whether the alleged assault occurred and as such it was a neutral factor. Michael also contended that the cases where a belief has been held to be relevant were based on a concession or acknowledgment and did not amount to any principle of law. A belief of sexual assault, and nothing more, does not explain the estrangement.
I deal with this issue below.

Findings in relation to the alleged abuse

As set out above, each of Cynthia, Karen and Glennis gave evidence of being abused by the Deceased, including sexually. As I understood the case propounded by each of Cynthia, Karen and Glennis this evidence was put forward to explain why it is that they left the family home and have had nothing to do with the Deceased or Dawn since that time – 1997 in the case of Cynthia and Karen and early 1998 in the case of Glennis. It was Cynthia, Karen and Glennis that introduced these allegations in their first affidavits filed in the Bradley Proceedings. Michael then responded. It cannot seriously be doubted that their introduction substantially added to the factual issues in the case and thus the length of the hearing
Counsel for Cynthia, Karen and Glennis contended that I was not required to find whether or not the alleged sexual abuse happened – it being sufficient for me to find that each of Cynthia, Karen and Glennis believed that it occurred. Counsel for Michael contended that I should positively find that the alleged abuse did not occur, that the allegations were made up, and that this amounted to disentitling conduct, relying on the decision of Blow J in Rowley referred to above.
There are many cases which make it clear that the Court on an application such as the present should not determine whether the allegations of sexual assault that have been made have been established. This no doubt explains the position taken by counsel for Cynthia, Karen and Glennis and the fallback position taken by counsel for Michael.
There is, however, some authority in support of the primary position advanced by counsel for Michael and as such I must consider whether I am satisfied on the evidence presented that the allegations are not true and that Cynthia, Karen and Glennis made them up.
The starting point is that counsel for Michael accepted that the finding that he asked the Court to make – that the allegations were fabricated for financial gain – was an extremely serious allegation and that having regard to s 140 of the Evidence Act 1995 (NSW) (Evidence Act), I must have regard to the gravity of the allegation in deciding whether I am satisfied on the balance of probabilities.
As Kiefel CJ, Gageler and Jagot JJ recently observed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (at 874-875 [57]), s 140 of the Evidence Act:

… reflects the position of the common law that the gravity of the fact sought to be proved is relevant to “the degree of persuasion of the mind according to the balance of probabilities”. By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that “the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”.
(Citations omitted)

The contentions advanced by counsel for Michael focus on the conduct of Glennis. I set out the relevant chronology and contentions below.
The starting point is that, according to Glennis, on or about 14 April 1997, due to the abuse “we suffered by our stepfather”, she left home with her sister Karen. It is not entirely clear when Glennis first made allegations of sexual abuse to the staff at her school – James Sheahan High – or the Department of Community Services. It appears to have been prior to 14 April 1997 because there was in evidence a note prepared by a Department of Community Services Assistant Manager of an interview with Glennis on 14 April 1997 at James Sheahan High School. The case note relevantly states:

ORANGE C.S.C.
14.4.97 Interview with Glennis at James Sheehan High 10am
Glennis said things over the weekend were bad, with Max picking on her for no reason & her mother failing to intervene. She said Karen wants to stay at home now because Max has promised her a motorbike. Glennis expressed a reluctance to leave Karen at home on her own with Max but accepted that Karen is her own person & she should think about if she feels safe. Glennis then said she wanted to leave
Will stay overnight with Pauline McAdam
“Thornleigh” Borenore
tel: (redacted s.14, cl3(4))
Pauline will tell Karen that Glennis isn’t going home & will be somewhere safe (wont [sic] tell her where)
Karen to tell her mother to contact me tomorrow if she is able to speak to her mother alone
Follow up with Dawn Ervine [sic] tomorrow as she is no available today. (away until ~10pm).
D Anderson
A/Assistant Manager 14.4.97

By 12 May 1997, Glennis had gone home to live at the Toogong Property with Dawn and the Deceased. Glennis was interviewed by DOCs on that day. The note of that discussion is as follows (emphasis added):

REPORT
12/5/97
INTERVIEW WITH GLENNIS BRADLEY b. 9.8.1981
I spoke to Glennis on her own in the interveiw [sic] room at Orange CSC.
Glennis appeared relaxed and to the best of my recollection the conversation went as follows.

I said:

Glennis, did you want to tell me whats [sic] happening for you at present.

She said:

I’ve gone back home, because I wanted to go back. We made it up. It was all Karen’s idea.

I said:

What do you mean by that.

She said:

Its [sic] not true.

I said:

So the allegation about asking for intercourse, is that true.

she said:

No,

I said:

What about the allegations of taking photos in the shower

she said:

They wouldn’t come out anyway. (Glennis would not elaborate on this).

I said:

Sometimes when children make allegations, they are often put under pressure to change their mind. Did that happen to you.

she said:

No, shaking her head.

I said:

Do you feel safe at home

she said:

Yes, its [sic] back to normal.

I said:

What do you mean by normal.

She said:

Its [sic] just like it was before I left.

I said:

So that is okey [sic]

She said:

Yes

I said:

What about Cynthia

she said:

She’s back at home too, but she might only be staying for a couple of weeks because she might be going with her boyfriend.

I said:

So Cynthia you’re telling me that you’ve gone back home because you want to and that what you said before you are now saying isn’t true.

She said:

That’s right.

I said:

What about school now.

She said:

I’ll probably being going to Canowindra High School.

I said

Why will you be going to Canowindra.

She said:

It’ll just be better for me to do that.

I said:

What about Karen

she said:

I don’t know.

At this stage I said I would like to bring her mother into the interview room. Glennis went to get her mother however Glennis did not come back.
(See separate page for interview with natural mother, Dawn Irvine.)
D.Martin T/DO
12/5/97

Dawn was subsequently interviewed on 12 May 1997. The note of that interview was as follows (emphasis added):

12/5/1997
GLENNIS BRADLEY b.9.8.1981
INTERVIEW WITH DAWN IRVINE (natural mother).
Dawn Irvine was interviewed at Orange CSC on 12/5/97 after interview with Glennis Irvine on the same day.
Dawn stated that Glennis had returned home and that she had asked to go home and that she was happy to be there. Dawn stated she didn’t know anything about it, that they were in town and had Max’s mother up at Helen’s house. That Glennis had arrived up at the house, crying and stated that she wanted to go home. This was on the Friday 9/5/97.
I stated that Glennis had now stated that the allegations of Max asking her for intercourse was not true. I said that Glennis did not take back the allegation of trying to take photos, or the walking in and out of the bathroom. Dawn stated that the only camera she knows anything about had been broken for years.
[redacted – s.14, cl.3(a)]
Dawn stated Glennis had said that they had to put on the form that they had been abused just so that they could get the money.
[redacted – s.14, cl.3(a)]
I stated that it was a concern to us and that Glennis did still need to feel safe. Dawn stated that the lock would go on the bathroom door if that was what was needed.
At this point I stated I would invite Max into the interview room.
(see separate report for joint interview)
D.Martin T/DO
12/5/97

Max was then interviewed. The note of this interview was as follows:

12/5/97
GLENNIS BRADLEY b. 9/8/97
INTERVIEW WITH DAWN IRVINE AND MAX IRVINE
Max Irvine joined Dawn Irvine after completion of her interview. Max re-iterated that Glennis had returned home of her own accord, and that she was very happy to be there.
[redacted – s.14, cl 3(a)]
Max stated that he couldn’t understand why we hadn’t spoken to him. I explained as it was a criminal matter, it was referred off to the Police for them to complete the investigation.
There was quite a long discussion centred on the past misdemeanours of family members.
Eventually I stated that even if the allegations were not true, what was happening that all three girls felt they had to leave home. Max did not acknowledge this statement.
Max and Dawn both stated that Glennis would go to Canowindra High School for now but if that did not work out, then she may go to Redbend.
Both stated it was agreeable for the Dept to contact the counsellor at Canowindra if that was needed.
I stated that possibly the whole family may need counselling to try and resolve what ever [sic] was happening in the family.
Max stated that they do not hate Karen, and in fact they hoped Karen would speak to her mother. They stated that maybe Karen having some time out of the home was the best thing at present, but that in the future if she wanted to come home, she was welcome to.
I stated that I would be seeing Karen and I would pass on this message.
Interview concluded after approximately 30 minutes.
Glennis was not sighted after talking to Dawn and Max.

The next day, Cynthia was interviewed. The report of that interview was as follows:

GLENNIS BRADLEY b.9/8/81
INTERVIEW WITH CYNTHIA BRADLEY
At 9.30am I called at McDonalds. Cynthia took a break and we spoke outside. Cynthia stated she knew why I was there. Cynthia stated that Glennis had gone home because she missed her mother. Cynthia stated that she had spent a couple of nights at home where they had talked things out.
I stated that Glennis is now saying that nothing had happened to her. I asked Cynthia what about her. Cynthia stated that she was not going to lie and that she was not going to change her story as it had happended [sic] to her just as she had stated in the beginning.
Cynthia stated she would not allown [sic] Glennis to return home if she felt she was in any danger. Cynthia stated they had spoken about it all and she was sure Glennis would be okey.
Cynthia stated she would be going home too in a couple of days, but she didn’t know if she would stay as her boyfriend was moving to Forbes and she may be going with him. I asked what about Glennis if she moved out. Cynthia stated she could go with her if she wanted to.
I asked about Karen at this time. Cynthia acknowledged that she was probably suffering but that she didn’t want to go home and they did.
I encouraged Cynthia to think about Karen and that if she was able to get in contact with her as I knew she was suffering at this time.
Interview concluded after approximately 15 minutes.
D.Martin t/DO
13/5/97

On 2 July 1997 Glennis made a statement to NSW Police, withdrawing the allegations. The statement is recorded in an NSW Police notebook signed by Glennis. The entry relevantly provides:

I now wish to withdraw this complaint. My older sister Karen…told me to say these things about Max so that I could live with her in Orange.

In about May 1998 Glennis left the Toogong Property and went to live with Cynthia after Cynthia gave birth to her daughter. On 1 June 1998 Glennis made a further statement to NSW Police again making the allegations of sexual abuse.
Glennis was extensively cross-examined on these events. She admitted that she said to DOCS and NSW Police that Karen had made her make up the allegations. She repeatedly denied, however, that this was a true statement and contended that she had been bullied or brainwashed into saying this in circumstances where all she wanted to do, as a 15 year old girl, was to go home to her mother. Precisely who she was bullied or brainwashed by was not stated by Glennis in cross-examination or the subject of any re-examination. Further, Dawn was not cross-examined to suggest that she was part of any bullying or brainwashing of Glennis.
Each of Cynthia, Karen and Glennis repeatedly maintained in evidence before me that they had been abused in the matter set out in their affidavits.
The case theory advanced by counsel for Michael was that it was when Glennis was under the influence of Karen when she first made the allegations but when she had returned home, out of reach of the influence of Karen, she withdrew the allegations and correctly identified Karen as the source of them. So the argument went, there was no reason for Glennis to name Karen as the source of making up the allegations unless it was the truth.
Similarly, if Cynthia had thought that there was any truth to the allegations she would not have permitted Glennis to return home in May 1997. Yet, there is nothing in the note of the discussion with Cynthia on 13 May 1997 to suggest she had the slightest concern with Glennis returning home.
The theory then proceeded on the basis that it was only when Glennis had again left the Toogong Property and went to live with Cynthia after the birth of Cynthia’s first child in May 1988, that Glennis came under the influence of Cynthia who persuaded her to reinstate the allegations and make a fresh statement to NSW Police.
The final links in the case theory were that each of Cynthia, Karen and Glennis was motivated by a desire to make money through victims compensation and also a hatred of the Deceased because of how he treated them and the impact he had had on their lives including their relationship with Warren. Further, it was contended that each had cut and pasted the false allegations from their police statements into their affidavits in these proceedings so that the evidence would be the same.
Having regard to the gravity of the allegations made by counsel for Michael, I am not actually persuaded that they have been made out. I do not feel an actual persuasion on the evidence before me that the sexual abuse allegations are false.
Each of Cynthia, Karen and Glennis maintained the allegations before me. They were cross-examined at a relatively high level. There was no close examination or scrutiny of each of the allegations so as to permit a proper assessment of each.
The core elements of the case theory advanced by counsel for Michael do not lead me to be comfortably satisfied that the allegations are false.
First, there are the DOCs notes of 14 April 1997 and 12-13 May 1997. Whilst it is clear that Glennis said that the allegation about asking for sexual intercourse were not true and that it was all Karen’s idea, Glennis gave evidence before me as to why she said those things – namely because she wanted to go back home to be with her mother. For a 15 year old girl this is not so far fetched as to be rejected. The inclusion of the reason for making it up – namely that it was Karen’s idea – is also not so farfetched as to be rejected.
Further, Glennis did not withdraw all of the allegations, only perhaps the most serious of the allegations of asking for sex.

The second issue in relation to the tailpiece, it not being in dispute that any replacement residence should be in Michael’s name, concerns whether the value of the property to be acquired as a replacement residence is only up to the value of the remaining insurance monies (as contended for by Michael) or should be up to the value of any residence the subject of the Crisp order (as contended for by Dawn). Dawn’s position is to be preferred. If the value of the replacement residence is limited to whatever insurance monies are left, then it is at least likely that this will yield a property of a very low value and thus be of no real benefit to Dawn. On the position advanced by Dawn, she will be able to move into a replacement residence of the same value covered by the Crisp order in circumstances where Michael will be able to reap the benefit of the completed value of the residence on the Toogong Property.
Order 8 is agreed.
Order 9(a) concerns the source of the funds used by Michael to pay the rates and outgoings in relation to the Toogong Property. The form of orders contended for by Michael provides for these monies to be paid out of the trust funds, whereas Dawn contends that there should be no such limitation. Dawn’s position should be accepted. The Will provides that Michael should pay these amounts, which is understandable given that he is to ultimately be the owner of the property. He will also continue to have the use of the property, other than the residence, during Dawn’s occupation.
Order 9(b) is agreed. There are several issues in relation to the chapeau to proposed order 9. First, whether the order should be conditioned by reference to some requirement of a reasonable need to move arising. Dawn opposes any such limitation being introduced. Such a qualification is unnecessary and at least has the potential to result in further disputation in due course as to whether Dawn has satisfied the condition. Dawn’s position should thus be accepted. Second, there is a dispute as to the dollar value limit to be imposed on the Crisp order. Michael contends that a limit of $450,000 is appropriate whereas Dawn contends that a figure of $600,000 is appropriate in circumstances where there is at least the possibility that the replacement residence will be sought in 10 years’ time, as opposed to the next few years. I propose to impose a limit of $550,000.
Order 9(c)(i) is agreed.
Order 9(c)(ii) is agreed, save for whether the words ‘with or without health care, hospitalisation and nursing or one or more of such services or like services’ should be included in the proposed order (as contended for by Dawn) or whether they should be deleted (as contended for by Michael). The dispute on the submissions appears to be a grammatical one, in the sense that Michael contends that the words are unnecessary particularly given that they begin with ‘with or without’. I see no downside in the words being included and as such they should remain in the proposed order.
Order 9(c)(iii) is not agreed. It relates to whether any unspent portion of the insurance proceeds received are to be held on trust for Dawn and able to be used by her for her own purposes. The debate appears to reduce to whether adequate provision is otherwise made for Dawn such that there is no need for an order for provision to extend to unspent insurance monies. On the evidence presented before me by Michael, it appears that most, if not all, of the insurance monies will be used in relation to the rebuild. In circumstances where those monies will only exist because of the flood and that Michael will not have used them as part of the rebuild, it seems to me that they should be provided to Dawn for her own use.
Orders 9(c)(iv) and (v), and order 10 are agreed.
I turn now to deal with the alternate form of orders submitted by Cynthia, Karen and Glennis on 11 June 2024.
Cynthia, Karen and Glennis contended that the orders proposed by Dawn are burdensome and unnecessarily complicated. In place of those orders, orders were proposed whereby Dawn would receive from the estate:

$142,045.64 (being the insurance payout on the contents of the residence);

The right to reside for her lifetime at the Toogong Property, upon terms that Michael construct a replacement dwelling at a cost from the estate not to exceed $550,000, with any additional cost to be paid by Michael from his own funds; and

A Crisp order up to $450,000 from the Toogong Property.

The essence of the contention that a construction cap should be imposed of $550,000, was a suggestion that the land was being overcapitalised and/or that there was no evidence of the cost of the associated works estimate by Michael. It was contended that Michael would receive a windfall in that he would ultimately receive a new dwelling.
I do not accept these contentions and do not propose to adopt the orders put forward by Cynthia, Karen and Glennis. Michael has provided an estimate of the additional costs that he believes will be incurred in addition to the building contract entered into. The appropriate order is for any surplus of the insurance proceeds not spent on the rebuild to be available to Dawn for her own use.
I will provide parties with a short period to seek to agree orders to give effect to what I have set out above. If there are any remaining disputes in relation to the form of the orders, they can be dealt with on the papers.
As requested by the parties, I will separately hear from them on the question of the costs of the proceedings.

Rejection of application to amend

At the commencement of the hearing, Mr Morrissey, counsel for the plaintiffs in the Bradley Proceedings, applied for leave to file a further amended summons. The effect of the proposed amendments was to add Irvine Farming and Transport Pty Ltd as a second defendant.
Irvine Farming and Transport Pty Ltd is a company controlled by Michael and his wife which now conducts the business, or at least part of the business previously conducted by the Toogong Partnership. The Deceased purported to resign from the partnership shortly prior to his death. As I understood the effect of the proposed amendment, it was to contend that the Deceased’s interest in the partnership forms part of his notional estate.
The application was opposed and after hearing from the parties I refused to allow the amendment. These are my reasons for so ruling.
The amendment was only formally foreshadowed the evening before the commencement of the hearing when a draft of the proposed further amended summons was served. The matter was last before me on 3 May 2024 when it was re-listed for pre-trial directions. On that occasion Mr Morrissey did not press for an order that Irvine Farming and Transport Pty Ltd be joined because Mr Morrissey stated that it appeared that there would be enough actual estate for all claims to be accommodated. Mr Goodyear indicated on that occasion that any application to add an extra party would be opposed but he did not need to deal with the issue as Mr Morrissey was not pressing for an order.
Mr Morrissey said that having received the opening submissions from Dawn on the evening of 17 May 2024 it appeared that there was now a prospect that the Deceased’s actual estate would not be sufficient.
Mr Goodyear raised several points in opposition. First, the application was made extremely late for no good reason. Allowing the amendment would likely have necessitated an adjournment of the hearing in circumstances where the company would likely have needed to consider whether it should be separately represented, it only being owned as to 50% by Michael, who is also the residuary beneficiary under the Deceased’s estate. There was the real possibility of a conflict between the interests of the company and Michael. Second, Mr Goodyear contended, in effect, that the application was futile because, having regard to the circumstances of the case, there was no real prospect of any notional estate order being made.
Dawn also opposed the application to amend in circumstances where it had the potential to impact the hearing of her claim.
I summarised the well-known principles applicable to an application for leave to amend pleadings in Yuan v Huang [2024] NSWSC 313 at [18]-[21]. As I there said, a party does not have a right to be permitted to raise any arguable case at any stage of the proceedings, subject to an order requiring it to pay the other party’s costs thrown away.
In my view, the plaintiffs in the Bradley Proceedings have had ample opportunity to bring a claim against the company. Whilst Dawn has previously made statements as to the nature and quantum of her claim, nothing put on her behalf was in any way binding so as to excuse the application to amend being made the evening before the hearing.
Had the amendment been permitted, an adjournment would have been likely. It would not be in the interests of justice for this to occur. I was already concerned as to the costs incurred and likely to be incurred, and the hearing time allocated to the two proceedings in relation to what is not, in relative terms, a large estate.
There was also much to be said for Mr Goodyear’s submissions as to the low likelihood of a notional estate order being made in the present case.

Conclusion and orders

The claims of Cynthia, Karen and Glennis should be dismissed. Dawn’s claim succeeds and orders need to be agreed to give effect to these reasons. As requested by the parties I will hear from them on costs if agreement cannot be reached between them. Any remaining dispute will be determined on the papers.
The orders of the Court in both the Bradley Proceedings and the Irvine Proceedings are as follows:

Direct the parties to confer and to seek to agree orders to give effect to these reasons.

Direct the parties to provide any agreed orders, or competing orders, to my chambers by no later than 5pm on 1 July 2024.

In the event there is no agreement as to costs, direct the parties to provide to my chambers by no later than 5pm on 1 July 2024 any submissions and supporting material on costs, such submissions not to exceed 3 pages.

Direct the parties to provide to my chambers by no later than 8 July 2024 any submissions and supporting material in reply on costs, such submissions not to exceed 3 pages.

**********

SCHEDULE

Assets and Liabilities of the Estate at the Date of death

Bank account assets

Estate asset	Value at date of death Plaintiffs’ Estimates	Value at date of death Defendant’s Estimates indicates agreement with the Plaintiffs’ estimate * indicates the Defendant’s estimate that differs from the Plaintiffs’
Commonwealth Bank Pensioner account number XXX XXX XXXX 6314	$1,001.32	$1,001.32*
Commonwealth Bank Business Transaction account number XXX XXX XXXX 4361	$4,981.88	$4,981.88*
Commonwealth Bank Business Transaction account number XXX XXX XXXX 7352	$5,090.08	$5,090.08*
Total	$11,073.28	$11,073.28*

Real Estate and Other assets

Estate asset	Value at date of death Plaintiffs’	Value at date of death Defendant’s Estimate
XX Barrack Street, Toogong (and connected lots)	$700,000.00 (E)	$400,000.00**
Interest in the Estate of the late Verdun John Irvine	$864,828.81	$864,828.81*
Interest in the Estate of the late Edith Irvine	$81,622.70	$81,622.70*
OnePath Member Superannuation Death Benefit (member number XXXX 1012885)	$93,951.14	$93,951.14*
Essential Superannuation Fund Account number XXX XXX 00477676766	$25,116.83	$25,116.83*
AMP shares	$252.48 (E)	$252.48 (E)*
Personal effects	$1,000.00 (E)	$1,000.00 (E)*
Total	$1,766,771.96	$1,466,771.96**

Any asset that might be considered to be notional estate

Asset	Value as at date of death Plaintiffs’ Estimates	Value as at date of death Defendant’s Estimates
Motor Vehicles (Deceased’s share 50%)	$174,250.00	NIL** (included in plant and equipment in Export Report of Ian Paul of Polemic Forensic)
Toogong Partnership (Deceased’s share 50%)* *Pursuant to the expert report of Ian Paul of Polemic Forensic Note: The plaintiffs reserve their right to make further submissions and submit additional evidence in respect to of the Toogong Partnership.	$601,434.00	$601,434.00**
Total	$775,684.00	$601,434.00*
Plaintiffs’ Estimate	Defendants’ Estimate
Gross Value of the Actual Estate as at the date of deceased’s death – Plaintiffs’ estimate	$1,766,771.96	$1,466,771.96**
Plaintiffs’ Estimate	Defendant’s Estimate
Gross Value of the Notional Estate as at the date of the deceased’s death – Plaintiffs’ estimate	$775,684.00	$601,434.00*

Liabilities of the deceased as at the date of death

Asset	Amount owing as at date of death – Plaintiffs’ Estimate	Amount owing as at date of death – Defendant’s Estimate
Funeral expenses	$11,035.55	$11,035.55*
Wake catering	$1,200.00	$1,200.00*
Total	$12,235.55	$12,235.55*
Plaintiffs’ Estimate	Defendant’s Estimate
Net Value of the Actual Estate as at the date of the deceased’s death – Plaintiffs’ estimate	$1,754,536.41	$1,454,536.41**
Plaintiffs’ Estimate	Defendant’s Estimate
Net Value of the Actual Estate and Notional Estate as at the date of the deceased’s death – Plaintiffs’ estimate	$2,530,220.41	$2,055,970.41**

Assets and liabilities of the estate as at the date of trial

Bank account assets

Bank and account number	Balance date for account	Account balance – Plaintiffs’ Estimate	Balance date for account – Defendant’s Estimate
McIntosh McPhillamy Trust Account	9 May 2024	$668,441.48	$668,441.48*
First Choice Credit Union Acc No XXXXX XXX House Account	30 April 2024	$1,007,315.84	$1,007,315.84*
First Choice Credit Union Acc No XXXXX XXX House Account	31 March 2024	$141,492.03	NIL** (property owned by Dawn Irvine)
Total		$1,817,249.35	$1,675,757.32**

Real Estate and other assets

Estate Asset	Estimate Value – Plaintiffs’ estimate	Estimate Value – Defendant’s estimate
XX Barrack Street, Toogong (and connected lots)	$360,000.00 (E)	$58,000.00**
Estimate of final distribution calculated by Yates Baker McClean Accountants in spreadsheet headed “Estate of the late VJ Irvine”	$185,057.05 (E)	$185,057.05 (E)*
Estimated Personal effects	$1,000.00 (E)	$1,000.00 (E)*
Total	$546,057.05	$244,057.05**

Any asset that might be considered to be notional estate

Asset	Value as at date of death – Plaintiffs’ estimate	Value as at date of death – Defendant’s estimate
Motor Vehicles (Deceased’s share 50%)	$174,250.00	NIL** (included in plant and equipment in Expert Report of Ian Paul of Polemic Forensic)
Toogong Partnership (Deceased’s share 50%)	$601,434.00	$601,434*
Total	$775,684.00	$601,434.00**
Plaintiffs’ Estimate	Defendant’s Estimate
Gross Value of the Actual Estate as at the date of trial – Plaintiffs’ estimate	$2,363,306.40	$1,919,814.37**
Plaintiffs’ Estimate	Defendant’s Estimate
Gross Value of the Actual Estate as at the date of trial – Plaintiffs’ estimate	$2,363,306.40	$1,919,814.37**

Liabilities of the estate as at the date of trial

Liability	Amount	Plaintiffs’ Estimate	Defendant’s Estimate
Current Liabilities of the Estate
Central West Granite Pty Ltd – Single granite monument plus lettering – estimate		$12,000.00	$12,000.00*
Future Liabilities of the Estate
Executors Commission		$60,000.00* (E) *The plaintiffs oppose any application for an award of commission.	$60,000.00* (E)
Executor’s costs on application for commission and passing of accounts		$22,000.00* (E) *The plaintiffs oppose any application for any award of commission.	$22,000.00*
Legal fees in respect to Motion – Objection to the Executory for the late VJ Irvine’s Application to Pass Accounts & claim commission		$5,000.00 (E)	$5,000.00 (E)*
Total		$99,000.00	$99,000.00

Plaintiffs’ Estimate	Defendant’s Estimate
Net Value of the Actual Estate as at the date of trial – Plaintiffs’ estimate	$2,264,306.40	$1,820,814.37**
Plaintiffs’ Estimate	Defendant’s Estimate
Net Value of the Actual and Notional Estate as at the date of trial – Plaintiffs’ estimate	$3,039,990.40	$2,422,248.37**

Estimated costs of each party calculated on the ordinary and the indemnity basis (inclusive of GST)

Plaintiff

Plaintiffs’ estimated past costs to date

Estimated Ordinary costs	$132,300.00*
Indemnity costs	$189,000.00*

Plaintiffs’ estimated future costs to the end of trial

Estimated Ordinary costs	$70,000.00*
Estimated Indemnity costs	$100,000.00*

Plaintiffs’ total costs to the end of trial

Estimated Ordinary costs	$216,300.00*
Estimated Indemnity costs	$309,000.00*

Defendant

Defendant’s past costs to date

Indemnity costs

$188,372.00*

Defendant’s future estimate future costs to the end of trial date

Estimated Indemnity costs

$75,597.00*

Defendant’s total costs to the end of trial

Estimated Indemnity costs

$263,969.00*

Plaintiff and Defendant’s estimated total legal costs of the proceedings to the end of trial

Estimated Ordinary costs of Plaintiff & Indemnity Costs of Defendant	$480,269.00*
Estimated Indemnity costs of Plaintiffs & Defendant	$572,969.00*

Plaintiff (in associated proceedings 2022/0036803) total costs to the end of trial

Estimated Ordinary costs	$80,080.00*
Estimated Indemnity costs	$114,400.00*

Defendant (in associated proceedings 2022/0036803) total costs to the end of trial

Estimated Indemnity costs

$41,224.00*

Any costs of any party that have been paid, in relation to any party, whether those costs have been paid out of the estate of the deceased

Plaintiffs

The plaintiffs have paid the amount of approximately $188,641.85 inclusive of GST from their own resources. (Agreed)

Defendant

The defendant has paid the amount of approximately $188,372.00 inclusive of GST from the Estate resources. (Agreed)

Estimated Net Value of the Estate as at the date of trial

(excluding notional estate)

Plaintiffs’ Estimate	Defendant’s Estimate
Estimated net value of the actual estate excluding the legal costs of the proceedings as at the date of trial (but including the defendant’s costs already paid by the Estate)	$2,264,306.40	$1,820,814.37**
Estimated net value of the estate after the defendant’s indemnity costs are deducted (including the costs already paid by the estate) (to the end of the trial)	$2,188,709.40	$1,745,217.37**
Estimated net value of the estate after the plaintiffs’ ordinary costs are deducted (including the costs already paid by the estate) (to the end of the trial)	$2,048,006.40	$1,604,514.37**
Estimated net value of the estate after the plaintiffs’ indemnity costs are deducted (including the costs already paid by the estate) (to the end of the trial)	$1,955,306.40	$1,511,814.37**
Estimated net value of the estate after the plaintiffs and defendant’s indemnity legal costs are deducted (including the costs already paid by the Estate) (to the end of the trial)	$1,879,709.40 (does not account for the legal fees of the plaintiff and defendant in the associated proceedings)	$1,436,217.37**
Estimated net value of the estate to the end of the trial (including the plaintiffs’ costs in both proceedings on an ordinary basis and the defendant’s costs on an indemnity basis)	$1,851,105.40	$1,407,613.37**
Estimated net value of the estate after the plaintiffs and defendant’s legal costs are deducted to the end of the trial (including all parties costs on an indemnity basis)	$1,724,085.40	$1,280,593.37**

Estimated Net Value of the Estate as at the date of trial

(including notional estate)

Plaintiffs’ Estimate	Defendant’s Estimate
Estimated net value of the estate excluding the legal costs of the proceedings as at the date of trial (but including the defendant’s costs already paid by the Estate)	$3,039,990.40	$2,422,248.37**
Estimated net value of the estate after the defendant’s indemnity costs are deducted (including the costs already paid by the Estate) (to the end of the trial)	$2,964,393.40	$2,346,651.37**
Estimated net value of the estate after the plaintiffs’ ordinary costs are deducted (including the costs already paid by the estate) (to the end of the trial)	$2,823,690.40	$2,205,948.37**
Estimated net value of the estate after the plaintiffs’ indemnity costs are deducted (including the costs already paid by the estate) (to the end of the trial)	$2,730,990.40	$2,113,248.27**
Estimated net value of the estate after the plaintiffs and defendant’s indemnity legal costs are deducted (including the costs already paid by the Estate) (to the end of the trial)	$2,655,393.40 (does not account for the legal fees of the plaintiff and defendant in the associated proceedings)	$2,009,047.37**
Estimated net value of the estate after the plaintiffs and defendant’s ordinary legal costs are deducted to the end of the trial (including the plaintiffs’ costs in both proceedings on an ordinary basis and the defendant’s costs on an indemnity basis)	$2,626,789.40	$2,009,047.37**
Estimated net value of the estate after the plaintiffs and defendant’s legal costs are deducted to the end of the trial (including all parties costs on an indemnity basis)	$2,499,769.40	$1,882,027.37**

Amendments

31 July 2024 - Correction to party names on coversheet

Decision last updated: 31 July 2024

Medium Neutral Citation:	Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727
Hearing dates:	21 – 24, 27– 28 May 2024, last submissions 11 June 2024
Date of orders:	17 June 2024
Decision date:	17 June 2024
Jurisdiction:	Equity
Before:	Pike J
Decision:	(1) Direct the parties to confer and to seek to agree orders to give effect to these reasons. (2) Direct the parties to provide any agreed orders, or competing orders, to my chambers by no later than 5pm on 1 July 2024. (3) In the event there is no agreement as to costs, direct the parties to provide to my chambers by no later than 5pm on 1 July 2024 any submissions and supporting material on costs, such submissions not to exceed 3 pages. (4) Direct the parties to provide to my chambers by no later than 8 July 2024 any submissions and supporting material in reply on costs, such submissions not to exceed 3 pages.
Catchwords:	SUCCESSION – family provision – claim by adult stepchildren as alleged members of household and dependents of the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – where plaintiffs ceased contact with deceased after allegations of sexual abuse – deceased found not guilty of sexual abuse at trial – whether eligible persons – whether “factors warranting” the making of orders for provision out of the estate – whether deceased had moral duty to make provision for plaintiffs despite no contact SUCCESSION – family provision – claim by de facto spouse under Succession Act 2006 (NSW), Ch 3 –where de facto spouse has been dependent on the deceased – where provision for de facto spouse inadequate
Legislation Cited:	Evidence Act 1995 (NSW) Succession Act 2006
Cases Cited:	Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Bruce v Greentree [2015] NSWSC 1611 Dighton v Norwood [2024] NSWSC 318 Estate of Awad [2023] NSWSC 765 Fallow v Mullins [2012] NSWSC 406 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 Page v Page [2016] NSWSC 1218 Page v Page (2017) 16 ASTLR 331 Rada v Smith [2024] NSWSC 273 Re Fulop Deceased (1987) 8 NSWLR 679 Rowley v Bouwmeester [2005] TASSC 34 Spata v Tumino (2018) 95 NSWLR 706 Williamson v Williamson [2011] NSWSC 228 Wilson v Wright [2024] NSWSC 519 Yee v Yee [2017] NSWCA 305 Yuan v Huang [2024] NSWSC 313
Texts Cited:	Nil
Category:	Principal judgment
Parties:	In proceedings 2021/314246: Cynthia May Bradley (First Plaintiff) Karen Ann Bradley (Second Plaintiff) Glennis Evelyn Bradley (Third Plaintiff) Michael James Irvine (Defendant) In proceedings 2022/36803: Dawn Evelyn Irvine (Plaintiff) Michael James Irvine (Defendant)
Representation:	Counsel: K. Morrissey (Plaintiffs in proceedings 2021/314246) L. Clarke (Plaintiff in proceedings 2022/36803) B. Goodyear (Defendant in both proceedings) Solicitors: Martin Street Lawyers (Plaintiffs in proceedings 2021/314246) Blackwell Short (Plaintiff in proceedings 2022/36803) McIntosh McPhillamy & Co Legal Services (Defendant in both proceedings)
File Number(s):	2021/314246 2022/36803
Publication restriction:	Nil

Party to proceedings	Estimated costs
Bradley Proceedings (three plaintiffs)	$303,325.18
Bradley Proceedings (defendant)	$263,969.10
Irvine Proceedings (plaintiff)	$104,500.00
Irvine Proceedings (defendant)	$41,224.70

I said:	Glennis, did you want to tell me whats [sic] happening for you at present.
She said:	I’ve gone back home, because I wanted to go back. We made it up. It was all Karen’s idea.
I said:	What do you mean by that.
She said:	Its [sic] not true.
I said:	So the allegation about asking for intercourse, is that true.
she said:	No,
I said:	What about the allegations of taking photos in the shower
she said:	They wouldn’t come out anyway. (Glennis would not elaborate on this).
I said:	Sometimes when children make allegations, they are often put under pressure to change their mind. Did that happen to you.
she said:	No, shaking her head.
I said:	Do you feel safe at home
she said:	Yes, its [sic] back to normal.
I said:	What do you mean by normal.
She said:	Its [sic] just like it was before I left.
I said:	So that is okey [sic]
She said:	Yes
I said:	What about Cynthia
she said:	She’s back at home too, but she might only be staying for a couple of weeks because she might be going with her boyfriend.
I said:	So Cynthia you’re telling me that you’ve gone back home because you want to and that what you said before you are now saying isn’t true.
She said:	That’s right.
I said:	What about school now.
She said:	I’ll probably being going to Canowindra High School.
I said	Why will you be going to Canowindra.
She said:	It’ll just be better for me to do that.
I said:	What about Karen
she said:	I don’t know.