Hulme v Graham

[2010] NSWSC 1281

CITATION:	Hulme v Graham [2010] NSWSC 1281
HEARING DATE(S):	1 November 2010 2 November 2010
JUDGMENT DATE :	15 November 2010
JUDGMENT OF:	Hallen AsJ
DECISION:	1 Adequate provision for the proper maintenance and advancement in life was not made for the Plaintiff in the Will of the deceased. However, in the circumstances, I consider that a family provision order should not be made. 2 As requested by counsel for the parties during final submissions, I shall not make any orders, but shall allow the parties an opportunity to come to a precise arrangement as to what orders are to be made in accordance with these reasons. If agreement cannot be reached, I shall hear submissions on costs. 3 I stand the matter over for the making of the orders that the parties seek.
CATCHWORDS:	SUCCESSION - family provision order under Succession Act 2006 sought - claim by de facto partner of deceased - duration of de facto relationship is disputed by Defendant – no provision made for Plaintiff in Will - Following the deceased's death, Plaintiff receives benefits from trustee of fund of which deceased was a member - relevance of death benefit payment - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance and advancement - competing claim of beneficiaries - adequate provision not made by Will or on intestacy or both - whether order under Act should be made - as a matter of discretion no order should be made
LEGISLATION CITED:	Conveyancing Act 1919 Family Provision Act 1982 Interpretation Act 1987 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Property (Relationships) Act 1984
CATEGORY:	Principal judgment
CASES CITED:	Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Devereaux -Warnes v Hall [No 3] [2007] WASCA 235 Dion v Rieser [2010] NSWSC 50 Diver v Neal [2009] NSWCA 54 Foley v Ellis [2008] NSWCA 288 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Graham v Hulme; Hulme v Graham [2009] NSWSC 1167 Graham v Hulme; Hulme v Graham [2009] NSWSC 1264 Luciano v Rosenblum (1985) 2 NSWLR 65 McCosker v McCosker (1957) 97 CLR 566 Marshall v Carruthers [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19 Re Estate of Sigg (dec'd) [2009] VSC 47 Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308 Samsley v Barnes [1990] NSWCA 161 Sellers v Scrivenger & Anor [2010] VSC 320 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
PARTIES:	Janet Ann Hulme (Plaintiff) Courtney Michelle Graham as executor of the Estate of Jeffery James Graham (Defendant)
FILE NUMBER(S):	SC 2009/290399
COUNSEL:	Mr J O'Connor (Plaintiff) Mr A Rogers (Defendant)
SOLICITORS:	Guardian Lawyers (Plaintiff) Dribbus Kovacevic (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALLEN AsJ

15 NOVEMBER 2010

2009/290399 HULME v GRAHAM

JUDGMENT

: So far as I am aware, this is the first matter decided under Chapter 3 of the NSW Succession Act 2006 (“the Act”), which applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (“the former Act”), which has been repealed, effective from 1 March 2009.

2 The Plaintiff, who it was agreed was the de facto wife of Jeffrey James Graham (“the deceased”) at the time of his death, seeks a family provision order, which is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education or advancement in life of an eligible person. She commenced the proceedings by Summons filed on 31 August 2009, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased person). She filed an Amended Summons on 23 October 2009, in which she sought other relief, including seeking a declaration that she had a beneficial interest in certain land at Port Macquarie and that part of the deceased’s interest in that land was held in trust for her, as well as relief under the Property (Relationships) Act 1984.

3 At the hearing, the Plaintiff’s claim was limited to one for relief under the Act and costs. The Plaintiff abandoned any other relief sought in the amended Summons.

4 There is no question, in the present case, of any provision being sought out of notional estate of the deceased.

Background Facts

5 The deceased died on 25 March 2009. He was aged almost 57 years at the date of his death.

6 The deceased left a Will that he made on 21 February 2003, probate of which was granted, on 27 July 2009, by the Supreme court of New South Wales, to his daughter, Courtney Michelle Graham (“the Defendant”), the executrix appointed under the Will.

7 By the deceased’s Will, the whole of his estate was left, upon trust, to be divided, as to 40 per cent to the Defendant, and 40 per cent to the deceased’s daughter, Teegan Alicia Graham, in each case, for her own use absolutely, and 20 per cent for such of the deceased’s natural grandchildren, and if more than one, in equal shares, as joint tenants, who survived the deceased and who attained the age of 21 years.

8 There are two grandchildren of the deceased who survived him, namely Tahlia Jade Roe, who was born in April 2000, and Baylen CJ Roe, who was born in December 2006. Each is a child of the Defendant.

9 No provision at all was made for the Plaintiff in the Will of the deceased and there was no explanation in the Will, or otherwise, for the fact that no provision had been made for her. (Of course, the Will was made at a time when the deceased and the Plaintiff were not in a de facto relationship.)

10 In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased’s estate, at the date of death, was disclosed as having an estimated, or known, value of $410,863.87.

11 In an affidavit sworn by the Defendant’s solicitor on 1 November 2010, the gross value of the estate was said to be $401,387.48. Liabilities, including the Defendant’s costs, were estimated to be $55,000, leaving a net distributable estate of about $346,000. There was a dispute about the nature and value of the deceased’s estate.

12 Subject to one matter that arose following the conclusion of the hearing to which I shall refer, the parties agreed that the value of the net distributable estate, for the purposes of the proceedings, should be treated as being $387,287. That amount does not take into account the estimated costs of the proceedings. There was no suggestion that any property should be designated as notional estate.

13 In broad terms, the deceased’s estate consisted of a one half interest in a property at Port Macquarie, shares, a car, a dog trailer, furnishings and electrical equipment, an amount received by way of tax refund and cash.

14 The Port Macquarie property is described as a battle-axe block of land on which is built a 4 bedroom, 2 storey home, with a double garage, rumpus room, study, kitchen, living room, with a front, side, and rear deck. The home appears to be in satisfactory condition, although some maintenance and repair has been suggested as being required. It was purchased for $625,000 in July 2007. Its market value has not changed since then.

15 There is some dispute about a loan of $20,000 having been made by the Plaintiff’s daughter, Bronwyn, to the deceased and whether that amount is a liability of the estate. The amount has not been referred to in the estimate of the value of the net distributable estate.

16 In calculating the value of the estate finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs be paid out of the estate.

17 The Plaintiff’s costs of the proceedings, calculated on the indemnity basis, have been estimated to be in the order of $80,093 (inclusive of GST and upon the basis of a two day hearing). The costs and disbursements of the Plaintiff, including counsel’s fees, calculated on the ordinary basis, are estimated to be $60,000.

18 The Defendant’s costs and disbursements of the present proceedings, including counsel’s fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a two day hearing), have been estimated to be about $41,800. However, the costs of the Defendant, of other proceedings (3887 of 2009) were estimated to be $21,200, of which about $10,600 was the estimate of likely costs that the Plaintiff would have to pay to the estate pursuant to an order made in those proceedings.

19 The persons described as eligible persons, within the meaning of the Act, are the Plaintiff, the Defendant and Teegan, the daughters of the deceased, and their mother, Maxyne Graham, who is the former spouse of the deceased. Each of the children, and the former spouse, of the deceased, has sworn an affidavit in the proceedings.

20 There is evidence that each of the eligible persons has been given the prescribed notice of the proceedings. None has made a claim under the Act. In addition, notice has been given to the Defendant, as the parent and guardian of the two grandchildren of the deceased. It is not suggested that either of the grandchildren is an eligible person.

21 The parties agreed that should an order be made for provision out of the estate, it should be paid out of the residuary estate prior to the calculation of the amount to which each of the residuary beneficiaries is entitled.

22 A notice of intended distribution of the estate was published in the Sydney Morning Herald on 3 August 2009. However, there is no suggestion that any part of the deceased’s estate has, in fact, been distributed.

Other Proceedings involving this Estate

23 As has been stated, there have been other proceedings between the Plaintiff and the Defendant in this court. The earlier proceedings were heard by Slattery J and are reported as Graham v Hulme; Hulme v Graham [2009] NSWSC 1167 and Graham v Hulme; Hulme v Graham [2009] NSWSC 1264.

24 In the first of those proceedings, the Defendant sought the recovery of $59,510.37, which amount had been withdrawn from certain of the deceased’s bank accounts. The court found that the Plaintiff caused the transfer of that sum from those bank accounts, within two days of his death and that she had been personally active in transferring those funds. She readily conceded in those proceedings that the funds were deposited into accounts either in the name of her daughter, Bronwyn, or jointly in an account held by herself and Bronwyn.

25 In those proceedings, counsel for the Plaintiff and her daughter (who was also a party), did not dispute that judgment should be entered for the whole of the amount claimed. The real question was whether that judgment should be stayed pending the pursuit of these proceedings. It was submitted that there should be a stay in respect of the whole of the sum of $59,510.37. However, his Honour only granted a stay in respect of $16,608.08. His Honour was not prepared to order a stay in respect of the balance of $42,907.29.

26 Relevantly, on 8 October 2009, the following orders were made in those proceedings (describing the parties as they were described in the case):

“1) Judgment for the plaintiff against the defendants in the sum of $61,861.94.

2) That the defendants pay 50% of the plaintiff's costs of the proceedings.

3) Order that if a sum of no less than $42,907.29 is paid by the defendants to the plaintiff on or before 29 October 2009 pursuant to order 1, then until further order of the court:

(i) Order 1 is stayed;

(ii) The plaintiff shall not register as a judgment any assessment of costs made pursuant to order 2.”

27 It appears that the Plaintiff paid, or caused to be paid, the sum of $42,907.29 to the Defendant’s solicitors, on 20 October 2009. She has used the balance of the amount withdrawn to pay the deceased’s funeral expenses ($7,537.65), to repay debts of the deceased ($3,231.37) and for part payment of her own legal costs ($5,334.06).

28 The Defendant has relied upon the prior conduct of the Plaintiff in withdrawing the amounts from the deceased’s bank account following his death, in these proceedings.

29 At the hearing, it was accepted by the parties that I should treat the amount that the Plaintiff would have to pay for costs in respect of the proceedings as a liability of the Plaintiff and as an asset of the estate. (It has been included as part of the agreed estimated value of the net distributable estate.)

30 Subsequent to the hearing, I was advised by the parties that an agreement had been reached between the Plaintiff, the Plaintiff’s daughter, and the Defendant as follows:

“The Estate of the Late Jeffery James Graham agrees to permanently stay enforcement of judgment inclusive of any order as to costs and interest entered in proceedings 3887 of 2009 (Earlier Proceedings) against Janet Ann Hulme and Bronwyn Ann Hulme-Craig and in consideration thereof Bronwyn Ann Hulme-Craig agrees to release the estate from all claims she has against the Estate of the Late Jeffery James Graham and the executor, Courtney Michelle Graham.”

31 I shall assume, following this agreement of the parties, that the net distributable estate has a value of about $376,600, from which costs may be payable.

The Statutory Scheme – The Act

32 I shall discuss the statutory scheme that is relevant to the facts of the present case.

33 The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:

“Purposive construction of the Act

There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.

There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by “the widow, husband or children of such persons”. There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional.”

34 Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour’s warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires.

35 The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the testator’s power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter a testator's disposition to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

36 The key provision is s 59 of the Act. The court must consider, first, whether the applicant is an eligible person within the meaning of s 57 (s 59(1)(a)). There are six categories of persons by, or on whose behalf, an application may be made. In the case of a s 57(1)(d), (e) or (f), applicant, the court must next consider whether the court is satisfied that there are factors which warrant the making of the application (s 59(1)(b)). Then, if those considerations are satisfied, the court must determine whether adequate provision for the proper maintenance, education and advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if it is satisfied of the inadequacy of provision, that the court considers whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process.

37 Relevantly, s 57(1)(b) of the Act provides for a person living in a de facto relationship at the time of the deceased’s death as a separate category of eligible person rather than as a sub-category, as was the case under s 6(1)(a) of the former Act (“a person with whom the deceased person was living in a domestic relationship at the time of the deceased person's death”).

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

39 It was said in the court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction “depends upon a multi-faceted evaluative judgment”.

40 Importantly, there no longer appears to be any sanction to consider, in s 59(1)(c) of the Act, the provision made by the deceased during his, or her, lifetime (see, s 9(2) of the former Act).

41 Under both s 59(1)(c) and s 59(2) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application.

42 “Provision” is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person’s lifetime”.

43 Neither are the words ‘maintenance’ and ‘advancement in life’ defined. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], said, of the words 'maintenance', 'support' and 'advancement':

“'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education.”

44 In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said:

“The words ‘advancement in life’ have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128.”

45 In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J noted:

“In the context of the Act the expression “advancement in life” is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. ( McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase “advancement in life” has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the “maintenance and support” of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support.”

46 The word 'adequate’ connotes something different from the word ‘proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance education and advancement in life: Devereaux -Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77] per Buss JA.

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

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

48 Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that:

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

49 In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502:

"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."

50 In Vigolo v Bostin at [114], Callinan and Heydon JJ said:

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

51 The first stage of the process provided for by s 59(1)(c) has been described as “the jurisdictional question”: Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant.

52 Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).

53 Tobias JA said:

“42. There can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.
…

47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred.”

54 In Devereaux-Warnes v Hall [No 3] at [81]–[85], Buss JA said, in respect of the first stage of the process:

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

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

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

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

55 In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the Plaintiff is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.

56 The second stage of the process arises under s 59(2) and s 60(1)(b). Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

57 Section 60 of the Act, at least in part, is new. It provides:

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

(a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person , and
(b) whether to make a family provision order and the nature of any such order.

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

(a) any family or other relationship between the applicant and the deceased person , including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant , to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person ’s estate,
(c) the nature and extent of the deceased person ’s estate (including any property that is, or could be, designated as notional estate of the deceased person ) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant , of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person ’s estate,
(e) if the applicant is cohabiting with another person-the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant , any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person ’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person ’s family, whether made before or after the deceased person ’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant ,
(i) any provision made for the applicant by the deceased person , either during the deceased person ’s lifetime or made from the deceased person ’s estate,
(j) any evidence of the testamentary intentions of the deceased person , including evidence of statements made by the deceased person ,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person ’s death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant ,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person ,
(n) the conduct of any other person before and after the date of the death of the deceased person ,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person ’s death or at the time the application is being considered.”

58 It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with “any other matter the court considers relevant”, for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender.

59 Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under sub-s (1)(a), many of the matters in ss (2) will be largely, if not wholly, irrelevant.

60 Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries named in the deceased’s will, whilst others do not. Importantly, also, many of the matters in ss (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

61 Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on “the discretionary question”, namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

62 This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (at 209-210):

“… The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.”

63 And by the comments of Callinan and Heydon JJ in Vigolo v Bostin (at 230-231):

"We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."

64 Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person’s estate), but who has not made an application. However, the court may disregard any such interests only if:

(a) notice of the application, and of the court’s power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or

(b) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.

65 Section 65(1) of the Act requires the family provision order to specify:

(a) the person or persons for whom provision is to be made, and

(b) the amount and nature of the provision, and

(c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and

(d) any conditions, restrictions or limitations imposed by the court.

66 The order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or “in any other manner which the court thinks fit” (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).

67 The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act).

68 Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act).

69 The court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act).

Applicable Legal Principles

70 As Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, in relation to the former Act, it is not appropriate, to endeavour to achieve a ‘fair’ disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role goes no further than the making of ‘adequate’ provision in all the circumstances for the ‘proper’ maintenance, education and advancement in life of an applicant.

71 In addition, in Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the testator’s will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant".

72 The court’s discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation (Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90 at [63].

73 Whilst the distinction between married relationships and de facto relationships has narrowed considerably over time, there remains binding authority which gives greater weight to the claims of parties who have entered “a formal and binding commitment to mutual support”: Marshall v Carruthers [2002] NSWCA 47; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger & Anor [2010] VSC 320 at [68].

74 In Marshall v Carruthers, Hodgson JA said:

“63 The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respect, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the length of a relationship and contributions to the relationship can affect the strength of a claim. One factor which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased.”

75 I find that each of the parties, the family members, and other, witnesses endeavoured to give truthful evidence. Of course, some disputes of fact are revealed in affidavits, particularly between the evidence of the Plaintiff and the daughters of the deceased. Such inconsistencies, in my view, are explained by unreliable memory due to lapse of time, or the perspective of the relevant witness. I find that no one deliberately coloured her, or his, oral evidence. Rather, as a fact of human nature, the recollection of past events reflected the perspective, and the sympathies, each of the witnesses had.

76 In relation to some aspects of the dispute, I have applied commonsense to the evidence of the witnesses in order to discern the facts that I find. Ultimately, this is not really a case where there is a substantial contest on the primary factual matters. Rather, the task of the court has been to determine, having regard to the facts, the competing claims of the parties and the relevant provisions of the Act, whether the deceased made adequate provision for the Plaintiff’s maintenance and advancement in life by his Will, and if not, whether an order should be made and the nature of that order.

77 Neither counsel submitted, generally, to the contrary, although Mr A G Rogers, who appeared for the Defendant, did submit that the Plaintiff had tailored her evidence in respect of the length of the relationship and the events that occurred when she decided to move to Port Macquarie rather than to Wollongong. I do not accept the Defendant’s submission on either matter. I shall deal, specifically, with the evidence (which I accept) on these topics later.

78 I set out the additional facts I am satisfied are either not in dispute, or that have been established by the evidence by reference to s 60 of the Act.

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

79 There was no family relationship between the Plaintiff and the deceased at the date of his death. The words ‘other relationship’ in the sub-section, however, expand consideration of the relationship between an applicant and the deceased, so that those words do not derive their colour from the earlier reference to a ‘family relationship’. The Act makes it clear that the applicant need not be a member of the deceased’s family to make an application.

80 In this case, the Plaintiff asserts, and the Defendant does not dispute, that she is a person with whom the deceased was living in a de facto relationship.

81 I am, otherwise, satisfied that the relationship of the Plaintiff and the deceased was a de facto relationship at the date of the deceased’s death. I rely upon the following additional facts:

(i) The deceased lived with the Plaintiff in Port Macquarie between January 2008 and his death.

(ii) A letter, dated 13 June 2008, from Consultant Neurologist, David Sharpe, to Dr P Nahkhle, in respect of the Plaintiff, refers to her having a “partner whom she lives with as well as her daughter and her husband”.


(iii) A document that is undated, but which is said to have been written on 25 March 2009, and which is acknowledged as containing the deceased’s signature, discloses that the deceased’s address is at Port Macquarie, that his marital status of the deceased was “de facto” and that his next of kin was the Plaintiff (whose address was also at Port Macquarie).
(iv) Robyn Cox, a witness called by the Defendant, who was not cross-examined, asserts that she was in a relationship with the deceased between July 2003 and October 2004; however, she states that her relationship with the deceased ended the day after the deceased sent an SMS message to the Plaintiff, and when she (Ms Cox) discovered that he was with the Plaintiff.
(v) It was conceded by the Defendant that the deceased was not in a relationship with any other woman following the end of his relationship with Ms Cox in October 2004.
(vi) The Plaintiff and the deceased shared living and other expenses and household duties from about January 2008.
(vii) The Plaintiff and the deceased purchased a car and a dog trailer together in the period after 2007;

(viii) The Plaintiff’s daughter and her husband moved from the Port Macquarie property in about October 2008, leaving the Plaintiff and the deceased living there together.

82 The real issue between the parties, at the hearing, was the duration of the de facto relationship. In this regard, I am satisfied that the de facto relationship between the Plaintiff and the deceased commenced in early to mid 2005.

83 The Act does not provide a precise test for the existence of the de facto relationship. Section 21C(2) of the Interpretation Act 1987 provides that:

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

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

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

84 None of the matters listed in s 21C(3), which sets out various factors to be considered in determining whether two persons have a relationship as a couple for the purposes of subsection (2), is of decisive significance. Some involve public aspects of the relationship and some private aspects. They all suggest a continuing course of conduct and behaviour, not an event at a fixed point of time. All the circumstances of the relationship are to be taken into account.

85 No matter how close the involvement in each other’s emotional lives, a conclusion that people are living together as a couple involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element: Dion v Rieser [2010] NSWSC 50 per Bryson AJ at [14].

86 As was pointed out in Re Estate of Sigg (dec'd) [2009] VSC 47 at [7]:

“In the case of Dow v Hoskins ([2003] VSC 206) Cummins J said that the determination of whether a person was living with the deceased should not be construed on narrow, formal, pedantic or merely geographical criteria, but should be considered taking into account the human reality of the personal, emotional and cultural complex. In that case his Honour took the view that he should approach the matter in that broader context. I agree with those observations and would add that it would be wrong to assume that the test of whether people are living in a genuine domestic relationship is to be judged against a model of a couple living together full-time, sharing fully domestic, financial and other responsibilities. That would place people claiming under these provisions at the very disadvantage which the provision is designed to remove. That would be so because people who are legally married live in married relationships in circumstances which vary dramatically from one couple to another, and it would be quite wrong to require that a couple seeking to invoke the provisions of s 51 should be judged by reference to a static model which may not bear a sufficient relationship to the reality of life and the diversity of arrangements existing between legally married couples.”

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

88 The Plaintiff and the deceased met in the early 1980’s through attending dog shows. Thereafter, they often met at dog shows. Although they had an “affair” (to use the Plaintiff’s description at T 40.12 – T40.13; T 40.46 – T40.50) for a short period of time in 1995, and although they each saw the other reasonably regularly between June 2000 and June 2001, I am of the view that the level of commitment to each other, was not sufficient to describe them, at each of those times, as being in a de facto relationship. As the Plaintiff, herself, acknowledged, in evidence (T62.07 – T62.24) which I accept:

“Q. During that period of time, that one year period of time, was that relationship different from the relationship that occurred after 2004?
A. Yes.

Q. How was it different?
A. After 2004 it was far more intense and it was what I would say forever, it was commitment [a] commitment.

Q. Before 2004 you hoped that something would develop but it hadn't developed fully to the type of relationship that existed after 2004, is that right?
A. The 2001 one are you talking about?

Q. Yes, before 2004, whatever relationship you had with the deceased it wasn't the same as the relationship that you had with him after 2004, correct?
A. Correct.

Q. Have I understood your evidence correctly?
A. Yes, yes.”

89 The Defendant made the submission that the Plaintiff had refused to go to live with the deceased in Wollongong, and that she had said to him that she was moving to Port Macquarie. It was then submitted that this demonstrated that she was not committed to him. I do not accept this submission and, in this regard, the Plaintiff’s evidence (T62.26 – T62. 42), which I accept, is instructive:

“Q. Then you told the court that before the purchase of the Port Macquarie property the deceased had asked you to go to live with him in Wollongong?
A. Correct.

Q. But you decided you didn't want to do that?
A. Correct.

Q. Could you tell me why you didn't want to do that?
A. With no disrespect to Wollongong, I did not like Wollongong, I had no friends down in Wollongong, all my family live in Port Macquarie, my mother, my father, my sister, my new granddaughter was up there, and because, yeah, I just felt insecure and I was going to be, Jeff would really come if our relationship was going to work. I didn't want to be a burden to him can you understand, like after the operation I felt was he only staying with me because of the brain operation and he felt it won't heal if he left me so I was kind of giving him an out too.”

90 I also accept the Plaintiff’s evidence that:

(i) From early 2005, she cooked meals for the deceased, cleaned and ironed his clothes, and provided such things as chips and lollies, when he went to work;

(ii) The deceased assisted the Plaintiff with the maintenance of her property, which was then at Quakers Hill; when he moved to the property at Port Macquarie, he would attend to household duties;

(iii) On 10 May 2005, the Plaintiff and the deceased registered a Breeders Prefix in their joint names (“Blackjade”). The address to which notification was sent, was addressed to them both, at the Plaintiff’s Quakers Hill address;

(iv) The deceased attended at the Plaintiff’s property at Quakers Hill following her surgery in June 2006 and February 2007; he had visited her in hospital on each occasion, and had driven her home when she was discharged;

(v) In mid-2007, the deceased purchased an equal share in the Port Macquarie property with the Plaintiff’s daughter; the purchase price was $625,000, of which the deceased contributed $301,138.50;

(vi) The Plaintiff and the deceased were engaged to be married in October or November 2008; he purchased an engagement ring for her; they planned to marry on 7 November 2009. Bearing in mind the earlier relationship between the parties, and the fact that the Plaintiff had been “hurt” by the deceased, their engagement would not have occurred immediately the relationship between them began.

91 The Defendant submitted that the deceased had referred to the Plaintiff as his “girlfriend”. I do not conclude that the word aptly describes her relationship with him, particularly as I infer that the deceased probably used the description when he was not living in Port Macquarie.

92 Furthermore, there are aspects of the Defendant’s, and Teegan’s, evidence that also lead me to my conclusion as to the duration of the relationship. For example:

(i) Each acknowledged that following the end of his relationship with Ms Cox, in October 2004, the deceased did not have a relationship with any other woman except the Plaintiff;

(ii) From early 2005, the deceased moved some of his personal belongings and clothes into the Plaintiff’s home; he did not take a suitcase with him when he would go to stay;

(iii) By early to mid-2005, an occasion occurred when the family of the Plaintiff and the family of the deceased met together for breakfast, for the first time. The Defendant described the occasion as “awkward”. She admitted that it had occurred with the specific intention that the two families would meet.

(iv) From about 2005, the deceased would regularly go to the deceased’s home and stay with her for, what was described in the evidence as, “his weekends”. The deceased’s daughter, Teegan, who then lived with him, stated that whilst the deceased would not go there on all occasions when he was rostered off work, he would go there regularly, and often would stay there for the whole of his rostered time off; sometimes, the rostered time off was two days, but, at other times, the period spent with the Plaintiff, on the deceased’s rostered days off, were longer; this evidence accorded with the evidence given by Mr Ward;

(v) In early 2007, following the deceased’s admission to hospital for heart surgery, it was to the Plaintiff’s home that the deceased was taken upon discharge by Teegan. He stayed there for about one week to recuperate.

93 I find, therefore, that the deceased and the Plaintiff were in a de facto relationship for about four years commencing in early to mid-2005. They had an exclusive sexual relationship, and the Plaintiff was recognised as his fiancée and partner at the date of his death by members of each family. Their de facto relationship lasted for about 4 years prior to his death and they planned to marry. They were accurately characterised as a couple, with a close and committed relationship. Even before the date they actually moved in together at Port Macquarie, they had made a commitment to living together in the future. Prior to the commencement of the de facto relationship, they were friends, and at different times, sexual partners.

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

94 Leaving aside any moral obligation arising as a result of their relationship as de facto partners, the deceased did not have any legal, or financial, obligation to the Plaintiff. At the time of his death, he did assume some financial responsibilities, towards the Plaintiff due to her medical condition. From 2007, she was in receipt of the disability support pension. The deceased received a redundancy payment in January 2008, and he used some of money he received to assist in the payment of his, and their, living expenses. The sharing of these expenses appears to have been more in the nature of an ad hoc financial arrangement.

95 There is no suggestion that the deceased paid to the Plaintiff, or that she expected him to provide to her, any regular, or consistent, amount. Yet, it would be uncontroversial that, according to current community standards, a de facto partner may have an obligation or responsibility to make provision for the maintenance of the other partner if able to do so.

96 When the property in Port Macquarie was purchased, the Plaintiff contributed her share of the proceeds of sale of the Quakers Hill property, which she then co-owned with her daughter, to the purchase price of the Port Macquarie property, but did not obtain any legal interest in it. She was prepared for her daughter to take the whole of the legal interest, it then being thought that the Plaintiff did not have long to live. The deceased became the co-owner, with the Plaintiff’s daughter, of the Port Macquarie property. Indirectly, at least, the deceased (and her daughter) thereby assumed some responsibility to provide for the Plaintiff’s accommodation.

97 The deceased did not assume any obligations, or responsibilities, towards his two daughters, each of whom was an adult and able bodied. Each of them was employed and neither was financially dependent upon him. Any obligation to his children was the responsibility naturally arising from his parental relationship to them.

98 Similarly, the deceased had no obligation, or responsibility, to provide for his grandchildren, particularly in circumstances where their parents were alive.

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

99 I have dealt with this earlier in this judgment. One any view, the deceased’s estate is a very small one.

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

(i) The Plaintiff presently works about 6 hours per week; she has limited employment prospects as she suffers a serious medical condition (focal epilepsy); she does not believe that she could obtain alternative employment.
(ii) The Plaintiff relies on a disability support pension ($519 per fortnight) to supplement the relatively modest income that she receives ($326 per fortnight) from working at the café owned by her daughter and son-in-law in the Port Macquarie Airport. Her total gross income is therefore $845 per fortnight.
(iii) The Plaintiff estimated her fortnightly expenditure at about $680.
(iv) The nature and value of her assets, as at 2 November 2010, are:
Hyundai Accent 2002 AM18AT $ 4,000

Jewellery $ 7,000

Furniture $12,000

White goods $ 5,000

Superannuation $20,000

NAB Bank Account 560251 237 091 8083 $ 2,300

NHF (NIB Holdings) 700 shares $ 875

Greater Building Society account

(proceeds of Australian Super Policy) $134,000

(v) The “Australian Super Policy” refers to the balance of the amount received (about $258,000) in August/September 2010 from Australian Super. The Plaintiff has used a part of these funds for legal costs ($104,000), for payment to the Plaintiff’s daughter ($20,000). She hopes to recover the latter amount if the estate repays the debt said to be owed to her daughter. In light of the agreement reached by the parties, this amount may now not be recovered from her daughter.
(vi) Because of her age and her medical condition, the Plaintiff’s employment prospects are diminished.
(vii) The Plaintiff, originally said in her affidavit, that if the Port Macquarie property is sold, she will need about $550 to $600 per week to rent accommodation similar to the accommodation in which she and the deceased lived from January 2008; alternatively, she asserts that she requires about $328,000 to purchase a two bedroom plus study demountable home at Newport Village, Port Macquarie. She says, also, that she requires funds to attend to medical treatment and for medical expenses.
(viii) The Defendant’s financial and material circumstances are as follows:
She was born in October 1980 and is 30 years of age;
She is in a de facto relationship with Brett Roe (14 years); they have two children;

She and her de facto partner own a property at Dapto NSW, valued at $300,000, which was purchased from the deceased in about 2007;

Her gross weekly income is about $520 and Mr Roe’s gross weekly income is about $1,364. Thus, their combined gross income is nearly $100,000 per annum;

She receives a carers allowance ($2,756 per annum) for her son Baylen Roe, who has Down Syndrome;

She owns a motor vehicle valued at about $20,000 and they have household furniture valued at about $20,000;

Neither she nor Mr Roe has any personal medical condition or physical impediment that would prohibit either from gaining employment;

They have $500 in a bank account;

Of course, the Defendant is entitled to 40 per cent of the net residuary estate;

The Defendant and Mr Roe have a joint liability of $247,003, secured on the Dapto property and other debts of $2,000.

(ix) No specific evidence has been given about the Defendant’s needs.


(x) Teegan’s financial and material circumstances are as follows:

She was born in May 1982 and is 28 years of age

She is in a de facto relationship (20 months) with Trent Fleming;

She is the sole registered proprietor of a property at Corrimal NSW, which she purchased from the deceased in about July 2007 ($410,000);

She is in long term employment (10 years) with QBE, where she is employed as a Services Manager currently earning a gross weekly income of about $1,405; Mr Fleming’s gross weekly income is $1,500, resulting in a combined gross income of about $150,000 per annum;

She owns a motor vehicle ($6,000);

Neither Teegan nor Mr Fleming has any personal medical condition or physical impediment that would prohibit either from gaining employment;

She and Mr Fleming intend to start a family in the near future;

Of course, Teegan is entitled to 40% of the net residuary estate;

Teegan has a liability, secured on the Corrimal property, of $228,114 and other personal debts of $1,100.

(xi) No specific evidence has been given about Teegan’s needs.

(xii) I know nothing about the financial and material circumstances of each of the deceased’s grandchildren. I assume, however, because of the age of each, that neither has any assets or liabilities, and that the Defendant and her partner maintains each of them.

(xiii) The Defendant’s son, Baylen, however, does suffer from Down Syndrome. He has been involved with a disabilities program since he was born and he has a case-worker. He is scheduled to start an early intervention program to assist him with his behavioural and socialisation skills next year.

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

100 The Plaintiff is not co-habiting with any other person.

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

101 A report, dated 28 June 2010, from Dr David Sharpe, a consultant neurologist, reveals, in relation to the Plaintiff.

“1. History obtained.

. . . In about 2006 she had a CT of the brain, which revealed a large right-sided aneurysm. She subsequently had angiography and this revealed a 2cm p.com aneurysm that was subsequently coiled and stented at the Prince of Wales Hospital. This was in about June 2006. In February 2007 as a result of a check angiogram it was found that there was some further recurrence of the aneurysm and she had subsequent coiling and stenting. A review by her surgeon Professor Stoodley in May 2008 and this followed a review angiogram reported no recurrence of the earlier aneurysm.

…

a. The nature and extent of [the Plaintiff’s] medical condition.
[Her] condition is of complex partial seizures and it is arising from the right temporal lobe no doubt due to some irritation or perhaps bleeding in association with her stenting and coiling of the P.com artery. For the underlying aneurysm. Her epilepsy gives rise to the attacks which are described above which initially were very well controlled on a moderate does of Tegretol. However following the onset of anxiety and depression these attacks have noticeably increased requiring a doubling in the dose of her Tegretol. Although the bigger dose has had a significant effect it has also had a significant side effect in that she is now more tired. I think it is this tiredness which in part prevents her working more than 3 hours a day. The anti-convulsant drugs are sedative in nature and their effect would be worse towards the end of the day particularly if combined with working.
b. The nature and extent of ongoing treatment including the cost of such treatment.
Her current treatment is Tegretol CR 400mg bd, the cost of which is approximately $33.30 amount for 200 tablets.

…

5. Present condition of [the Plaintiff].

… In brief she is currently having bout 2 complex partial seizures a month. She is currently on Tegretol, tired, anxious and depressed.

6. Prognosis

I would anticipate that once the present aggravation has settled and it’s behind her then [the Plaintiff] should regain very good control of her complex partial seizures. I would hope that the dose could gradually be reduced after that point in time and that the current tiredness would clear. At the present time and because of these episodes [the Plaintiff] is not permitted to drive, but should they subsequently settle then that prohibition would be reviewed.

7. The effect [the Plaintiff’s] medical condition on her ability to work both now and in the future.

This has already been covered to some extent above. [The Plaintiff] is very fearful of having an epileptic attack in public or indeed even in front of her family. The current anxiety and depression makes this more likely. The combination of more frequent attacks and the increased doses of Tegretol add to her tiredness and that in itself can make it more difficult to cope both with normal day to day events as well as more complex matters. [The Plaintiff] is currently living at home alone for the last month with her daughter having moved out and does seem to be managing. In less stressful times and taking a lesser dose of Tegretol [the Plaintiff] would be more capable working longer hours if that was her wish.


8. The effect of [the Plaintiff’s] medical condition on her ability to maintain an independent lifestyle.

For the most part [the Plaintiff] is living an independent life though she has only currently being [sic] living alone for the last month. She is not permitted to drive until the current episodes have stabilised.

…

10. Any further information [that] is relevant.

There is no doubt that [the Plaintiff’s] emotional condition has undergone significant change since my earlier reviews of her and my recent reviews late last year and today. During this same period of time her complex partial seizures have increased and it needed an increasing dose of Tegretol which has given rise to excessive tiredness. I am hoping that with resolution of the current disputes the emotional changes will resolve and her epilepsy will then come under good control with a similar does of anti-convulsants.”

102 Interestingly, there is nothing in this medical report that touches upon the Plaintiff’s life expectancy, or whether it is reduced as a result of the condition from which she suffers. Mr O’Connor, counsel for the Plaintiff, submitted that I should infer that if there was a reduction of her life expectancy, the expert would have included it in Paragraph 10. He submitted that her life expectancy was 28 years.

103 I am unable to say whether the Plaintiff’s life expectancy has, in fact, been reduced. Upon this topic I cannot reach any firm conclusion.

104 The Plaintiff also gave evidence that she has difficulties with memory and concentration.

105 Neither the Defendant, nor her sister Teegan, suffer any physical, intellectual, or mental, disability. I have already referred to the condition of Baylen, a grandson of the deceased, and a beneficiary named in his Will.

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

106 The Plaintiff was born in September 1952 and is presently aged 58 years.

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

107 There is no evidence that the Plaintiff contributed to the building up of the deceased’s estate, other than by contributing $10,000 towards the costs of renovations done to the Port Macquarie property and by the payment of about $1,985 for the replacement of the cook-top and under-bench oven there. However, over the four years of their de facto relationship, she contributed to the deceased’s welfare by providing care, companionship to, and domestic services for, him.

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

108 The deceased made no specific provision, during his lifetime, or out of his estate, for the Plaintiff. However, she did receive $5,034 out of his estate, following his death, which amount she used to pay part of her legal costs.

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

109 There is some evidence about the testamentary intentions of the deceased. The Plaintiff gave evidence that the deceased had said to her that she was his number one priority and that he had to look after, and provide for her. He said he was going to change his Will.

110 The Plaintiff’s affidavit evidence included a statement that she and the deceased had a conversation, in about February 2009, which was the final conversation about what was to happen on their deaths, which conversation was to the effect that they should alter their wills, so that each left his, or her, assets to the other and, in relation to the Port Macquarie property, that “we should give each other exclusive use and benefit and a life estate over the house”.

111 Bearing in mind the Plaintiff did not, then, have any legal interest in the Port Macquarie property, how that could be achieved was not made clear, although it was suggested that the Plaintiff’s daughter would abide the arrangement made. However, there might have been a difficulty enforcing any such arrangement unless it was in writing and the Plaintiff’s daughter was a party to that written agreement.

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

112 Other than the provision of accommodation that was co-owned by the deceased, and otherwise as described previously, the deceased did not maintain either wholly, or partly, the Plaintiff, at any time, before his death. The Plaintiff’s daughter and the deceased shared the outgoings on that property.

113 The Plaintiff was a signatory on the deceased’s bank accounts that he opened in Port Macquarie. Prior to that time, the living expenses each had was paid individually by her or him.

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

114 Apart from the Commonwealth government’s responsibility to continue to provide the Plaintiff with a pension, there is no other person with a liability to support the Plaintiff.

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

115 There was not very much evidence on this topic other than in respect of matters dealt with in the other proceedings. Certainly, there was no evidence of any misconduct on the Plaintiff’s part towards the deceased, which caused, or contributed, in any way, to the lack of provision made for her by the deceased. There is no real dispute that she had a close and loving relationship with the deceased from late 2004 until his death.

116 Mr Ward, a close friend and workmate of the deceased gave evidence that the deceased spoke to him about the Plaintiff “very well” and “very affectionately”.

117 There was a suggestion that the Plaintiff had not paid an amount of $10,000, on behalf of the deceased, to one Janine Glenn, following his death. Counsel for the Defendant accepted that any misconduct on the part of the Plaintiff in relation to this matter had not been established.

118 There was the criticism of the Plaintiff in relation to the events involving the withdrawal of funds, following the deceased’s death. However, that was dealt with by orders made by Slattery J, with which orders the Plaintiff complied. In addition, an agreement has been reached in regard to the Defendant’s costs that were ordered to be paid.

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

119 The only hint of any criticism, by the Plaintiff, of the conduct of the Defendant, is that it is asserted that she should have admitted, at a time much earlier than she did (in July 2010), that a de facto relationship between the Plaintiff and the deceased existed at the date of the deceased’s death.

120 The Defendant explained her failure to make the admission by stating that she believed that there was a period for which one must have been in a de facto relationship before one was regarded as being in that relationship.

121 Whilst it would have been better to have made the concession earlier than she did in the proceedings, the Defendant may have misunderstood what she had been told. In any event, that issue really goes to costs.

122 There is no dispute, otherwise, that the Defendant and Teegan each had a close and loving relationship with the deceased. It was not suggested that the deceased’s relationship with either of his children had, in any way, broken down, or that it was otherwise affected after the deceased commenced his de facto relationship with the Plaintiff or after he moved to Port Macquarie.

123 This is not relevant in the present case.

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

124 It is a matter for the court to consider whether there is any other matter that is relevant to the questions for consideration and determination under s 60(1).

125 In my view, there are three very important matters that I consider relevant to the determinations that I must make. First, in about August/September 2010, the Plaintiff received the sum of approximately $258,000 from Australian Super, that amount being the death benefit payable in respect of the deceased. The deceased had named his daughters as his preferred nominees, but the trustee of the fund did not act in accordance with the nomination.

126 Second, it was established, during cross-examination of the Plaintiff, that she had inherited the whole of her husband’s estate, when he died in 1999, which estate then had a value of about $348,000. The Plaintiff used the inheritance to purchase in her, and her daughter’s, name, a property at Quakers Hill. When that property was sold, the whole of the proceeds was used to purchase the one half interest, in the Port Macquarie property, which interest was registered in the daughter’s name alone. The Plaintiff’s contribution to the Port Macquarie property (being one half of the proceeds of sale of the Quakers Hill property) was $166,561.36, the benefit of which passed to the Plaintiff’s daughter.

127 The Plaintiff states that her financial contribution to the acquisition of her daughter’s share of the Port Macquarie property was a gift to her daughter, and that she does not expect her daughter to repay that money to her upon the sale of the Port Macquarie property.

128 It follows that the Plaintiff has caused her financial position to be detrimentally affected by her own conduct.

129 The third matter is that the deceased provided some benefits to each of the Defendant and Teegan during his lifetime. Each purchased real estate that he owned at a reduced value.

Submissions

130 Mr J D O’Connor of counsel, who appeared for the Plaintiff, submitted that because of her financial and material circumstances and her state of health, the Plaintiff should receive the whole of the deceased’s interest in the Port Macquarie property ($312,500). Alternatively, he submitted that she should receive an amount which equates to no less than 50 per cent of the net distributable estate after the payment of costs. Based upon the amounts stated earlier, that equates to about $140,000.

131 Mr Rogers, counsel for the Defendant, submitted that no provision for the Plaintiff should be made. He submitted that she had received over $250,000 by way of death benefit, and that bearing in mind the duration of her relationship with the deceased and the fact that it was a de facto relationship and not a marriage, that was more than adequate for her proper maintenance and advancement in life. He submitted that the Plaintiff’s present financial and material circumstances were “self-inflicted”, in that she had divested herself of her interest in a property that she had inherited and then in another that she had co-owned, with her daughter. It was as a result of these steps that she now found herself without a legal interest in any real estate.

132 If I did not accept these submissions, Mr Rogers submitted that a small legacy, of no more than about $30,000 should be provided. This amount, when added to the amount the Plaintiff had already received by way of the death benefit, would give the Plaintiff, about $288,000, which was a significant amount and more than what would be shared by the chosen objects of testamentary bounty.

133 In reply, Mr O’Connor submitted that a lump sum of $30,000 would not reflect the moral obligation that the deceased owed to the Plaintiff.

Determination

134 There is no dispute that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(b) of the Act. It is, thus, unnecessary to consider whether there are any factors warranting the making of her application.

135 As the Plaintiff’s proceedings have been commenced within the time prescribed by the Act, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made, has not been made, by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both.

136 There was no provision whatsoever in the deceased’s Will made for the Plaintiff. Having regard to her relationship with the deceased, her present financial circumstances, her age, her employment difficulties, and her ill health, as well as considering the totality of the relationship between the deceased and his children and grandchildren, I find that adequate provision for the proper maintenance or advancement in life of the Plaintiff was not made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

137 However, I am of the view that the amount which the Plaintiff received, as a result of the death of the deceased, of $258,000, with the amount of $5,034.06, paid from the deceased’s bank account, which amount she used for legal costs, considered in light of the length of the de facto relationship, that it was one into which the Plaintiff and the deceased each came relatively late in life, that it did not involve taking care of children, that the Plaintiff’s financial contribution to the estate was nominal and that the bulk of the assets of the deceased at the time of his death were accumulated through his own efforts prior to being involved with the deceased, that the deceased’s estate is very small and that the competing claims of the beneficiaries are strong, means that I should not make a family provision order in favour of the Plaintiff.

138 It is unnecessary, therefore, to consider the nature of provision.

139 I also remember that had the Plaintiff not put assets into the name of her daughter she could have been a registered proprietor, with the deceased, of the Port Macquarie property, or at least one quarter of it.

140 I test my conclusion by way of an hypothetical example. Had the amount of the death benefit been paid into the deceased’s estate, and had the $5,034 not been taken by the Plaintiff, the value of the deceased’s estate would have been about $640,000 ($376,600 plus $258,000 plus $5,034). If, in those circumstances, the Plaintiff had received, by the deceased’s Will, a lump sum of $263,000, that being slightly more than 40 per cent of the value of the deceased’s estate, it would have been hard to conclude other than that adequate provision for her proper maintenance and advancement in life had been made.

141 In all the circumstances of this case, I consider that I should not make any family provision order in favour of the Plaintiff.

142 As requested by counsel for the parties during final submissions, I shall not make any orders, but shall allow the parties an opportunity to come to a precise arrangement as to what orders are to be made in accordance with these reasons. If agreement cannot be reached, I shall hear submissions on costs.

143 There was discussion during the hearing regarding the sale of the Port Macquarie property. There was a suggestion that the daughter of the Plaintiff would consent to be joined as a party to avoid other proceedings under s 66G of the Conveyancing Act 1919 having to be commenced, if agreement could not otherwise be reached between the Defendant and her.

144 I shall stand the matter over for the making of the orders that the parties require. I shall then hear any argument as to costs.

145 Finally, I should say that it is most unfortunate that this matter required judicial determination. The estate, as I reminded the parties several times during the hearing, was very small, and one would have thought that common sense, if not, economic reality, would have seen the resolution of the Plaintiff’s claim well before it reached this court.

**********