Jennifer Patricia Murray as executor of the estate of Alec Kumar Sodhy v Hill
[2025] WASCA 77
•27 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JENNIFER PATRICIA MURRAY as executor of the estate of ALEC KUMAR SODHY -v- HILL [2025] WASCA 77
CORAM: BUSS P
MITCHELL JA
VAUGHAN JA
HEARD: 12 NOVEMBER 2024
DELIVERED : 27 MAY 2025
FILE NO/S: CACV 5 of 2024
BETWEEN: JENNIFER PATRICIA MURRAY as executor of the estate of ALEC KUMAR SODHY
First Appellant
JENNIFER PATRICIA MURRAY as beneficiary of the estate of ALEC KUMAR SODHY
Second Appellant
AND
CLAIRE ELIZABETH HILL
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SEAWARD J
Citation: HILL -v- JENNIFER PATRICIA MURRAY as beneficiary of the estate of ALEC KUMAR SODHY [2023] WASC 482
File Number : CIV 2255 of 2017
Catchwords:
Appeal - Order for provision pursuant to s 6 Family Provision Act 1972 (WA) - Deceased's will containing no provision for estranged child - Whether primary judge gave legally adequate reasons - Whether primary judge had regard to, or failed to have regard to, material considerations - Whether provision of $1.1 million was unreasonable or plainly unjust
Legislation:
Family Provision Act 1972 (WA), s 6
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| First Appellant | : | A P Hershowitz |
| Second Appellant | : | A P Hershowitz |
| Respondent | : | M J Sims SC & C V Eastwood |
Solicitors:
| First Appellant | : | Lawton Gillon |
| Second Appellant | : | Lawton Gillon |
| Respondent | : | Eastwood Law |
Case(s) referred to in decision(s):
Browne v Browne [2019] WASCA 1
DL v The Queen [2018] HCA 26; (2018) 266 CLR 1
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
Hill v Jennifer Patricia Murray as beneficiary of the estate of Alec Kumar Sodhy [2023] WASC 482
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Player v Avery [2022] WASCA 147
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Stone v Braun [2015] WASCA 103
Tabloid Pty Ltd v Pringle [2024] WASCA 152
Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
JUDGMENT OF THE COURT:
Overview
This is an appeal from an order made pursuant to s 6(1) of the Family Provision Act 1972 (WA).
The deceased, Alec Sodhy, died on 22 November 2016 aged 64. In a will dated 14 December 2007 the deceased left the whole of his estate to Jennifer Murray. Ms Murray, who we will refer to as 'the appellant', is a party to the appeal in her capacities as executor of the deceased's estate and as the sole beneficiary under the deceased's will. The appellant was some four years younger than the deceased. The appellant and the deceased were in a de facto relationship from at least December 1983 to the date of the deceased's death. The appellant and the deceased did not have any children together. Nor did the appellant have a child outside of her relationship with the deceased.
The respondent, Claire Hill, was born in September 1983. The deceased was the respondent's father. It is common ground that the respondent is the only child of the deceased. However, in circumstances that are discussed further below, the respondent did not have a relationship with the deceased and had not spoken to the deceased during his lifetime.
The deceased's will made no provision for the respondent. On 27 July 2017 the respondent commenced proceedings against the appellant pursuant to s 6(1) of the Family Provision Act. The respondent sought an order that adequate provision be made out of the deceased's estate for her proper maintenance, support, education or advancement in life. The proceedings were tried before Seaward J over three days in June 2023. Later that year her Honour delivered written reasons upholding the respondent's claim: Hill v Murray.[1] On 21 December 2023 the primary judge ordered that, by way of a codicil, a new clause be inserted in the deceased's will that bequeathed an amount of $1.1 million to the respondent.
[1] Hill v Jennifer Patricia Murray as beneficiary of the estate of Alec Kumar Sodhy [2023] WASC 482 (primary reasons).
The appeal is from that order.
The appellant does not challenge the primary judge's finding that the disposition of the deceased's estate by his will did not make adequate provision for the respondent for her proper maintenance, support, education or advancement in life. The appeal is confined to the primary judge's determination in respect of the second stage of the inquiry under s 6(1) of the Family Provision Act. The appellant contends that the primary judge failed to provide legally adequate reasons, or alternatively the primary judge's exercise of discretion miscarried, so far as her Honour determined that provision should be made out of the deceased's estate for the respondent in the amount of $1.1 million.
For the reasons that follow the appeal must be dismissed.
Background facts
There is no challenge to the primary facts as found by Seaward J. Accordingly, what follows is drawn from her Honour's reasons. It is not necessary to recount the whole of the facts as found by the primary judge. It suffices to refer to the matters that are relevant to the issues raised on the appeal.
The deceased was a medical practitioner. He died leaving a relatively substantial estate. The primary judge found that the net value of the deceased's estate as at the date of his death was approximately $2.584 million. The most significant of the deceased's assets was a property in Shenton Park. Before the deceased's death it was intended that the deceased and the appellant would build a residence at this location for their retirement. By trial the value of the deceased's estate had increased. The primary judge found that the net value of the deceased's estate as at the date of the trial was approximately $3.191 million. This did not take into account the benefit of a costs order in relation to proceedings in the High Court of Australia (as to which see [26] below).
The appellant worked as a paediatric speech pathologist from 1980. She ceased working in 2015 when the deceased was diagnosed with the illness that resulted in his death. The appellant lives in another Shenton Park property (ie not the property that formed part of the deceased's estate). The home occupied by the appellant on that property was built by the deceased and the appellant during the deceased's lifetime. The appellant's financial position was not addressed in evidence in the primary proceedings. Counsel for the appellant said that this did not mean that the court could disregard the appellant's interests. Rather, according to counsel, it meant that the court was entitled to infer that the appellant had no need for provision from the deceased's estate. The primary judge drew that inference.
The respondent's mother and the deceased were casual platonic acquaintances between 1979 and 1982. However, in December 1982 the respondent's mother and the deceased had sexual intercourse. The respondent was conceived. When the respondent's mother informed the deceased of the pregnancy, in January 1983, the deceased was upset and did not want the pregnancy to continue. There was, for practical purposes, no further personal contact between the respondent's mother and the deceased before the respondent's birth. Nor was there any ongoing relationship between the deceased, the respondent's mother and the respondent since the respondent's birth.
The respondent's mother commenced a maintenance application against the deceased in the Family Court of Western Australia in June 1984. The deceased denied paternity. A trial of the proceedings was adjourned to a date to be fixed. The matter stood in abeyance until 2001 when, at the age of 18, the respondent requested that her mother continue with the maintenance application to fund the respondent to attend overseas studies. The maintenance proceedings were reactivated in 2002. The deceased continued to contest paternity and was ordered to undertake a paternity test. After an unsuccessful appeal the deceased refused to take the paternity test. A formal declaration of paternity was made and the deceased was ordered to pay $21,000 by way of maintenance plus costs. The deceased made payment on 31 May 2003. Approximately $20,000 was used to support the respondent in her overseas studies. This was the only support money paid by the deceased for the respondent.
The primary judge made findings that:
1.Any person reading the court documents in the maintenance proceedings in the Family Court of Western Australia would conclude that the deceased did not desire to have a relationship with the respondent [39].
2.There was no actual contact between the deceased and the respondent's mother and the respondent [42].
3.The responsibility for the estrangement between the deceased and the respondent lay with the deceased alone [53]. That attribution of responsibility was unaffected by the circumstance that the respondent had become an adult [55]. The deceased made a choice not to have any involvement in the respondent's life [53].
The respondent grew up with her mother and attended local high schools in Perth. She participated in two specialist programs - an academically talented maths and science program and a dance program. The respondent completed tertiary entrance examinations in 2000. She was a talented dancer and wished to embark on a career as a ballet dancer. This involved overseas studies and brought about the reactivation of the maintenance proceedings. The respondent worked as a professional ballet dancer until 2015. She worked in Europe until 2010 before returning to Perth and working as a dancer with the Western Australian Ballet Company. The respondent retired as a ballet dancer in 2015, aged 31, due to injuries. Since that time the respondent has worked as a ballet teacher.
The respondent married in July 2013. Her husband is also a retired professional dancer who teaches ballet. The respondent and her husband have two children - a boy born in February 2016 and a girl born in April 2018. At the time of trial the respondent's children were 7 years old and 5 years old.
There was considerable evidence as to the respondent and her husband's employment and financial circumstances both as at the date of the deceased's death and as at the time of the trial. That evidence, and the primary judge's findings, tended to aggregate the financial circumstances of the respondent and her husband. No point was taken about that either at trial or on appeal. Insofar as the appeal is confined to the second stage of the inquiry under s 6(1) of the Family Provision Act, it is appropriate to give more emphasis to the primary judge's findings as at the time of trial. However, for reasons that will become apparent, mention must also be made of the position as at the date of the deceased's death and various steps taken after the deceased's death that affected the respondent's financial circumstances.
At the date of the deceased's death, the respondent worked in a number of casual teaching positions. She also operated a floristry and events business with a colleague and performed paid bookkeeping work for her mother's law firm. By the date of the trial the respondent was employed full‑time as a ballet teacher at the Graduate College of Dance (on a gross salary of $76,000 per annum) and also provided additional private classes on a casual contract basis to supplement her income. The respondent continued to do the bookkeeping work. However, the floristry and events business had ceased operations due to the effects of the COVID‑19 pandemic.
The respondent's husband was teaching ballet at two institutions at the date of the deceased's death. By the trial he was teaching full‑time at the Graduate College of Dance (also on a salary of $76,000 per annum). The respondent's husband also undertook cleaning at the College on a casual basis two evenings a week to supplement the couple's income.
There was evidence that the respondent's husband had an underlying health condition. The respondent contended that her future needs were dependent on whether her husband's health condition worsened. However, the primary judge found that, in the absence of any expert evidence regarding the likely effect that the condition would have on the husband's future ability to work, it was not possible to quantify the impact of the husband's health condition on the respondent's future needs [34], [88].
The primary judge made findings that:
1.As at the date of the deceased's death, the respondent and her husband had a combined monthly income of approximately $6,940 and a monthly surplus after expenses of approximately $850 [56] ‑ [63]. The most significant expense was mortgage repayments in relation to an Inglewood property owned by the respondent and her husband in which they lived [61].
2.As at the date of the trial, the respondent and her husband had a combined monthly income of approximately $13,000 and a monthly surplus after expenses of approximately $640 [80] ‑ [83]. The key expenses were the mortgage repayments in relation to the Inglewood property and a property subsequently purchased in Bassendean [82].
The respondent gave evidence that there were other unforeseen expenses that her family incurred over and above recurring budgeted monthly expenses and there was little income left over to meet such expenses [84]. So too there were other necessary items, recurrent and non‑recurrent, which the family could not afford [85]. The primary judge said that some of these were desirable (eg private school fees, gym and Pilates fees and family holidays) rather than essential (eg car repairs, school shoes, increased cost of groceries, dental work and glasses). However, her Honour accepted that the additional expenses were not extravagant or reckless [87].
The respondent and her husband purchased the Bassendean property in July 2022. The respondent and her husband, together with their children, were living in the Bassendean property as at the time of the trial. The respondent gave evidence that the Inglewood property was too small for her family. The Bassendean property had a large outdoor area but otherwise was relatively small. It required renovations to make the home suitable for their family. The respondent's evidence was that she and her husband originally intended to sell the Inglewood property and use the profits to fund the renovations. However, the respondent and her husband were unable to obtain the purchase price they were seeking. The respondent and her husband decided to rent the Inglewood property instead. At the time of the trial the Inglewood property was being rented to the respondent's mother for $500 per week.
It will be necessary to return to the subject of the proposed renovations to the Bassendean property.
The primary judge provided a table setting out findings as to the respondent and her husband's assets and liabilities as at the date of the deceased's death [65]. We will not repeat that table. The most substantial asset was the Inglewood property with an estimated value of $535,000 ‑ $565,000. The Inglewood property was encumbered by a mortgage securing a debt of $513,352.42. Otherwise, of total assets of approximately $672,000 ‑ $703,000, the couple's net assets were some $159,000 ‑ $190,000. This included $36,224.68 in a superannuation account for the respondent and an estimated $70,000 in superannuation for the respondent's husband.
The couple's financial circumstances had altered by the trial. In part this was due to the purchase of the Bassendean property - something that the primary judge described as being 'the most significant change' [71]. Also, the respondent's husband received an inheritance of $112,500 [68] and the respondent was liable in respect of an adverse costs order arising from proceedings in the High Court of Australia [94].
The respondent's outstanding costs liability in respect of the High Court proceedings was estimated in an amount of $164,903.61 [69], [94]. The primary judge explained that, following the deceased's death, the respondent commenced other proceedings in relation to the deceased's estate. In particular, there were legal proceedings concerning the Holly Superannuation Fund which was a self‑managed superannuation fund of which the deceased and the appellant were the only members [90] ‑ [93]. The respondent had been ordered to pay costs in relation to those proceedings in amounts that were specified by the primary judge [94]. Costs orders paid to date, totalling $49,163.44, had been met from the respondent's savings and her husband's inheritance [96]. The respondent had also met disbursements for the proceedings in an estimated amount of $15,000 [95].
The primary judge summarised the respondent and her husband's combined financial position as at the time of trial in a table [69]. In summary the couple's financial position as at the time of trial was as follows:
Estimated Value
Inglewood property ($650,000 less mortgage debt of $419,201.67)
$230,798.33
Bassendean property ($625,000 less mortgage debt of $649,171.13)
($24,171.13)
House contents
$10,000.00
Bank accounts
$32,387.96
Motor vehicles (three vehicles)
$41,000.00
Respondent's superannuation
$74,336.09
Respondent's husband's superannuation
$148,578.32
Credit card
($28.73)
High Court costs order
($164,903.61)
Total surplus / Net assets over liabilities
$347,997.23
Accordingly, the couple's net assets had improved between the deceased's date of death and the time of the trial. However, as the primary judge observed, the surplus of assets over liabilities included the respondent and her husband's superannuation accounts. If those amounts were put to one side, the surplus of assets over liabilities as at the trial date was reduced to approximately $125,000 [70].
The primary judge's decision
The primary judge summarised the two key issues for determination as being:
1.Whether the disposition of the deceased's estate by his will did not make adequate provision for the respondent for her proper maintenance, support, education or advancement in life?
2.If so, what would be adequate provision for the proper maintenance, support, education or advancement in life of the respondent; and should the court exercise its discretion to make an order for provision in her favour?
The primary judge's articulation of the key issues for determination was consistent with the two‑stage process under s 6(1) of the Family Provision Act as described by Buss P in Lemon v Mead.[2]
[2] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [50], [51], [53].
The primary judge considered the applicable legal principles for a claim under s 6(1) of the Family Provision Act. Her Honour described the applicable principles in orthodox terms that are not challenged by any ground of appeal. In the circumstances it is not necessary to recount the primary judge's comprehensive statement of the applicable principles. Nor will we develop those principles in these reasons. It suffices to state that, for the purpose of this appeal, the applicable legal principles are well established and are summarised in Lemon v Mead [47] ‑ [83].
Mention should, however, be made of two matters that the primary judge expressly referred to in describing the second stage of the inquiry under s 6(1). First, her Honour acknowledged that, while the exercise of the court's discretion at the second stage is 'very broad', it is qualified by the text and purpose of s 6(1) - the primary judge stated that the court is 'not empowered to award more than what is "adequate" provision for the claimant's "proper" maintenance, support, education and advancement in life' [121]. Second, her Honour reminded herself, correctly, that the discretion is not to be exercised for the purpose of what may appear to the court to be a fair distribution of the deceased's estate [147]. As authority for those propositions the primary judge cited relevant passages from this court's decision in Lemon v Mead [58], [244] (see also [267] ‑ [268]).
The primary judge also reminded herself that freedom of testamentary disposition is a relevant and important consideration in the exercise of the discretion [147].
Before considering the two key issues for determination, the primary judge considered a submission on behalf of the appellant to the effect that the respondent had conducted herself and managed her financial affairs in an unreasonable manner which had increased her indebtedness and liabilities in a significant way. The respondent, and her husband, were accused of acting imprudently, naively or by design. Their current financial position was said to be self‑orchestrated and not an instance of the couple falling on hard times. The court was asked to infer that the couple's actions were taken to 'gild the lily' and improve the respondent's claim for provision in the litigation [99] ‑ [100].
The primary judge accepted that the respondent and her husband had not fallen on hard times [101].
However, her Honour rejected the submission that the respondent and her husband had 'gild[ed] the lily' to improve the respondent's prospects in the litigation [102]. Relevantly, the primary judge accepted that the respondent's explanation for the purchase of the Bassendean property was 'not an unreasonable' one [104] and found that the circumstance that the High Court of Australia granted special leave to appeal supported an inference that there may have been some merit or importance in that litigation [105]. The primary judge also stated:
I accept that the decision to retain the Inglewood property, and the decision to pursue the superannuation litigation, has increased [the respondent's] overall level of debt. I also accept that [the respondent] could sell the Inglewood property to help pay down her debts and increase the amount of her monthly surplus. [The respondent] has indicated this is what she will need to do to pay the estimated High Court costs order. That [the respondent] has not sold the Inglewood property to date is a relevant matter for me to weigh in the exercise of my discretion at the second stage of the test for an application under s 6(1) of the Act, if I consider the jurisdictional threshold to be met. However, I do not accept that [the respondent's] failure to sell the Inglewood property to date is itself evidence of a deliberate attempt to obtain a higher level of provision in this litigation [107].
The primary judge then considered the jurisdictional question comprised in the first stage of the inquiry under s 6(1). Her Honour was satisfied, in all the circumstances, that the deceased's will did not make adequate provision for the respondent for her proper maintenance, support, education or advancement in life [130], [144].
In reaching that conclusion the primary judge had regard to seven matters. First, the respondent's financial circumstances and needs - while the respondent's position was not 'dire' (the respondent and her husband having a monthly surplus of income over expenses and owning the Inglewood property subject to a significant mortgage) the couple were exposed to the vicissitudes and financial exigencies of life with a modest income and only a small contingency [131] ‑ [137]. Secondly, the respondent had a moral claim based on a filial relationship. Her Honour considered it to be consistent with modern accepted community standards that, where funds permitted, a parent will ordinarily provide a child with a start in life and it may be expected that a parent will provide a child with a buffer against the financial exigencies of life [138]. Thirdly, the estrangement and lack of relationship between the deceased and the respondent - it being relevant, among other things, that the respondent did not provide the deceased with love and support during his lifetime [139]. Fourthly, the appellant's moral claim on the estate - this was found to be greater than the respondent's moral claim [140]. Fifthly, the appellant did not advance a claim for financial need [141]. Sixthly, the deceased's will did not make any provision for the respondent at all in circumstances where the deceased had made only one $21,000 contribution to the respondent's maintenance during her life [142]. Seventhly, the deceased's estate was substantial and was able to bear dispositions to both the respondent and the appellant.
In turning to the second key issue for determination - the exercise of the discretion under s 6(1) - the primary judge stated that she was guided by the considerations that would inform a wise and just testator and the findings that had already been made (including those enumerated at [38] above) [146] (see also [148] where the primary judge incorporated the findings as to the respondent's financial position). The primary judge then outlined the parties' competing submissions as to what was required for adequate provision from the deceased's estate for the respondent's proper maintenance, support, education or advancement in life [149] ‑ [150].
The respondent sought $1.583 million. This comprised:
1.The amount required to discharge the two mortgages in respect of the Inglewood and Bassendean properties (ie $1,068,372.80).
2.Renovation costs in the amount of $350,000.
3.The respondent's adverse costs liability in relation the proceedings in the High Court ($164,903.61).
The respondent argued that she should be provided with a capital sum to ensure her financial stability and a sum for contingencies. It was said that the capital sum should be an amount that permitted the respondent and her husband to discharge their liabilities and allow them to renovate their family home.
The appellant contended that an amount in the vicinity of $250,000 was appropriate. It was submitted that it was inappropriate for the respondent to have increased her debts and come to court seeking to have those debts paid. The appellant submitted that an appropriate provision would be to allow: (1) an amount to contribute to a reduction in the mortgage in relation to the Inglewood property; and (2) an amount to make modest changes to the Bassendean property (in the amount of $50,000 ‑ $100,000).
The primary judge's dispositive reasoning in allowing for provision in the amount of $1.1 million was as follows:
In my view, an order that [the respondent] receive $1.5 million is more than what is required to provide adequate provision for her proper maintenance, etc, and does not reflect [the respondent's] age; current financial position and future earning capacity; the extent of [the respondent's] moral claim to the estate; [the appellant's] superior moral claim to the estate; [the respondent's] financial needs, and [the deceased's] freedom to dispose of his estate as he saw fit.
…
I consider that in all the circumstances adequate provision for [the respondent's] proper maintenance, etc, requires that provision be made for [the respondent] which is sufficient to provide for a suitable family home and to provide a further lump sum to assist [the respondent] in navigating the vicissitudes of life. I do not consider in all the circumstances that adequate provision for [the respondent's] proper maintenance, etc, requires that [the respondent] also receive a lump sum which pays all of [the respondent's] debts in circumstances where they were voluntarily incurred by her as an adult (and were not incurred as a result of falling on hard times), where [the respondent] could take some steps to partly pay down those debts immediately.
I consider that adequate provision for [the respondent's] proper maintenance, etc, requires that provision be made for [the respondent] from the estate in the amount of $1.1 million. This amount will be sufficient to enable [the respondent] to discharge the mortgage on the Bassendean property (which is their home), to renovate it to bring it up to a standard suitable for a young family, and to provide [the respondent] with a sum as a buffer to assist [the respondent] to dealing with the vicissitudes of life [151], [153] ‑ [154].
We have reproduced the substance of the primary judge's reasoning on the second stage because, as will be seen, the appellant complains that the primary judge's reasons are legally inadequate.
The appeal
The appellant's appeal notice was filed out of time by about five days. Accordingly, the appellant requires an extension of time to appeal. The appellant's solicitor swore an affidavit explaining the reasons for the delay in filing the appeal notice. Those reasons are not attributable to the appellant. In summary, the delay is explained by a combination of inadvertent error in calculating the time to lodge the appeal (having regard to O 3 r 3 of the Rules of the Supreme Court 1971 (WA)) and difficulties experienced in lodging the appeal notice through the eCourts portal. It was not suggested that the delay had caused any prejudice to the respondent. In the circumstances there should be an extension of time to appeal.
There are three grounds of appeal:
1.The primary judge is alleged to have erred in law or in fact in determining that adequate provision for the respondent's proper maintenance, education support and advancement in life was $1.1 million in that such amount exceeded an amount sufficient to discharge the proper exercise of the primary judge's discretion (ground 1).
2.The appellant alleges that the primary judge's discretion in relation to the second stage of the inquiry under s 6(1) of the Family Provision Act miscarried by reason that her Honour:
(a)failed to take into account material circumstances; and
(b)allowed extraneous matters as to the respondent's financial needs to guide the exercise of discretion.
(ground 2).
3.The primary judge is alleged to have erred in law in failing to give reasons, or legally adequate reasons, to explain why the exercise of the court's discretion required an award in the amount of $1.1 million (ground 4).
Ground 3 was abandoned at the appeal hearing.[3]
[3] Appeal ts 4.
The appellant relies on seven discrete matters in relation to ground 2. Somewhat unhelpfully, the ground does not identify which matters concern the primary judge allegedly allowing an extraneous matter to guide the exercise of the discretion and which matters concern an alleged failure to take into account a material consideration. Also, as we will come to, part of the appellant's complaint by ground 2 is in terms no more than an alleged weighting error.
It is convenient to commence with ground 4 since it alleges legal error as to the adequacy of the primary judge's reasons for the conclusion that there should be provision in the amount of $1.1 million.
Before addressing ground 4, some general observations should be made about the nature of the appeal. There is no challenge to the primary judge's finding that the deceased's will did not make adequate provision for the respondent's proper maintenance, support, education or advancement in life. The appeal is solely concerned with the second stage of the process required under s 6(1) of the Family Provision Act. Here, as the text of s 6(1) makes plain, the court is exercising a discretionary power. The court exercises a discretion - making a discretionary decision - to order adequate provision for the proper maintenance, support, education or advancement in life of the claimant: Singer v Berghouse (No 2);[4] Lemon v Mead [53], [56] ‑ [57] (see also [271] ‑ [272]).
[4] Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201, 211.
Appellate interference with a discretionary decision requires a litigant to establish error in the exercise of the discretion. Minds may differ as to the appropriate result where a discretion is to be exercised. It is not enough that an appellate court would have exercised the discretion differently if in the position of the primary court. Instead it must be shown that the primary court acted on a wrong principle, allowed extraneous or irrelevant matters to affect the decision, mistook the facts, did not take into account a material consideration or reached a result that is on the facts plainly unjust or unreasonable. See House v The King.[5]
[5] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505.
As explained in the appellant's oral and written submissions, grounds 1 and 2 are appropriately couched in terms of a recognisable alleged discretionary error.
Disposition ground 4 - the appellant's complaint about the adequacy of the primary judge's reasons for provision in the amount of $1.1 million
Ground 4 raises whether the primary judge failed to give reasons, or legally adequate reasons, to explain why the exercise of the court's discretion required an award in the amount of $1.1 million. There is no doubt that her Honour gave reasons for the order for provision in the amount of $1.1 million. See in particular [32] and [39] ‑ [43] above. Accordingly, there is no merit in ground 4's suggestion that the primary judge failed to give any reasons for the order for provision in the amount of $1.1 million. The real issue raised by ground 4 is whether the reasons given are legally adequate.
The appellant submits that the primary judge's reasons fail to provide adequate justification for the specific amount of $1.1 million. The appellant says that:
1.No clear rationale or breakdown is provided to support how the $1.1 million was calculated or why it was deemed sufficient for the respondent's needs.
2.No findings are made about the renovation costs to bring the Bassendean property up to a suitable standard for a young family.
3.It is impossible to know how much the primary judge has allocated to renovation costs and how much the primary judge has allocated to the vicissitudes of life.
4.Insufficient consideration is given to the respondent's current financial circumstances in assessing what is proper provision - the appellant says that without a comprehensive assessment of the respondent's financial position it is unclear whether the order for provision in the amount of $1.1 million aligns with the respondent's actual needs.
The appellant characterises the decision to order provision in the amount of $1.1 million as arbitrary.
The generally applicable principles dealing with the adequacy of reasons are well established. In that respect what follows substantially reproduces what was stated by this court in Tabloid Pty Ltd v Pringle.[6]
[6] Tabloid Pty Ltd v Pringle [2024] WASCA 152 [66] ‑ [69] (see also [70] ‑ [72]).
In evaluating the adequacy of reasons for decision the critical question is whether the essential path of reasoning to the impugned conclusion is disclosed in sufficient detail and with sufficient certainty to meet the twin objects that: (1) the litigant knows why he or she was unsuccessful; and (2) an appeal court may determine whether the decision involved appellable error.
As was stated in Browne v Browne:
The principles relevant to an evaluation of the adequacy of reasons are well established and include the following:
(1)Reasons for decision need not be lengthy or elaborate.
(2)Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.
(3)It is certainly not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails. Considering that party's submissions is an aspect of what procedural fairness requires.
(4)In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's consideration.[7] (citations omitted)
[7] Browne v Browne [2019] WASCA 1 [80].
As to the last point, the authorities accept that the content and detail of reasons will vary according to the nature of the jurisdiction that the court is exercising and the particular matter the subject of the decision: Wainohu v New South Wales;[8] DL v The Queen.[9] So, for example, where reasons for decision concern an assessment of damages for non‑pecuniary loss, it is to be expected that a trial judge's reasoning process will be less developed and more imprecise than in other areas in which judicial reasons are required and provided: Player v Avery.[10]
[8] Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 [56].
[9] DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 [32].
[10] Player v Avery [2022] WASCA 147 [103] ‑ [105].
That is also the case in determining the specific amount for an order for provision under s 6(1) of the Family Provision Act. In Singer v Berghouse (No 2) the plurality (Mason CJ, Deane & McHugh JJ) described the first stage of the inquiry as involving a value judgment (211). That is all the more so with the second stage of the inquiry. While, of course, the discretion must be exercised by reference to the evidence before the court or facts of which the court may take judicial notice, the discretion is 'very broad': Lemon v Mead [83], [229]. The task is one of instinctive synthesis or intuitive assessment in respect of which reasons for the appropriate provision need not be fully articulated: Stone v Braun.[11]
[11] Stone v Braun [2015] WASCA 103 [92].
Whether reasons are legally adequate will depend upon the circumstances of the case and the matters that arose for consideration and determination. In that respect the primary judge identified the parties' competing positions. The primary judge did not accept either party's position in full but instead arrived at her own conclusion as to what was required for adequate provision from the deceased's estate for the respondent's proper maintenance, support, education or advancement in life. Before doing so the primary judge stated the applicable legal principles in an orthodox manner that is unchallenged on appeal.
The primary judge's conclusion that an order for provision should be made in the amount of $1.1 million involved the following steps:
1.Her Honour made comprehensive findings as to the size of the deceased's estate; the totality of the relationship between the deceased and the respondent; the respondent's moral claim in the context of accepted modern community standards; the respondent's personal and financial circumstances and needs including the respondent's exposure to the vicissitudes and financial exigencies of life (in this respect there is no merit in the submission that the primary judge gave insufficient consideration to these matters); the appellant's moral claim; and the circumstance that the appellant did not advance a claim for financial need.
2.Her Honour rejected the appellant's contention that the respondent and her husband had acted in a way so as to improve the respondent's prospects in the litigation.
3.Her Honour reminded herself that freedom of testamentary disposition was a relevant and important consideration in the exercise of the discretion.
4.Her Honour rejected the respondent's contention that the order for provision should include an allowance for the debt due by the respondent on account of the adverse costs order in the High Court proceedings.
5.Her Honour determined that the order for provision should meet three objects. In her Honour's opinion, having identified the parties' competing positions, adequate provision for the respondent's proper maintenance, support, education or advancement in life required a sum that: (1) allowed the respondent to discharge the mortgage debt in relation to the Bassendean property; (2) enabled the respondent to renovate the Bassendean property to provide for a suitable family home; and (3) provided a further lump sum as a buffer to assist the respondent in dealing with the vicissitudes of life.
6.These three matters, in her Honour's opinion, required that provision be made for the respondent from the deceased's estate in the amount of $1.1 million.
Counsel for the appellant accepted, in this respect, that there was a 'limited pathway of reasoning', but said that it was not a sufficient pathway of reasoning.[12] We disagree. There is a clear and comprehensive exposition of the pathway of reasoning that led to the primary judge's conclusion that there should be an order for provision in the amount of $1.1 million. The primary judge revealed her essential pathway of reasoning in the terms summarised above. The fact that it is possible to outline the steps in the primary judge's reasoning demonstrates that her Honour more than adequately disclosed the essential path of reasoning that was adopted in determining the order for provision. The appellant ought to have been able to identify why the order for provision was in the amount of $1.1 million. Similarly, this court is well able to determine from the reasons whether there was appellable error.
[12] Appeal ts 29.
Much of the appellant's criticism of the legal adequacy of the reasons was directed at the absence of a breakdown of the $1.1 million as between the three objects identified by the primary judge.
The mortgage debt in relation to the Bassendean property was approximately $650,000. Allowing for that $650,00, and deducting it from the $1.1 million order for provision, it may be inferred that the primary judge allowed $450,000 for renovation costs and the vicissitudes of life. It is true that the primary judge did not make a discrete finding as to the renovation costs to improve the Bassendean property to a suitable standard. Nor did her Honour break down the $450,000 so as to identify a particular amount for the renovation costs and a particular amount for the vicissitudes of life. There was, in our opinion, no necessity to do so. Neither of these matters means that the primary judge's reasons were legally inadequate.
There was evidence before the primary judge about the renovation costs. A ground floor extension was estimated at $200,000 to $250,000; an upper floor construction was estimated at between $300,000 to $350,000.[13] The primary judge made reference to that evidence, and cross‑examination of the respondent in relation to it, at primary reasons [77] ‑ [78] (see also [73] ‑ [74], [76]). Her Honour noted that the first option was cheaper, but resulted in a loss of some of the backyard to the Bassendean property, whereas the second option was more expensive but preserved a larger backyard [77].
[13] GAB 259. See also affidavit of C E Hill sworn 16 May 2023 pars 43 ‑ 45 GAB 256.
When the primary reasons are read fairly and as a whole, in the context of the evidence including the cross‑examination of the respondent on the renovation costs,[14] it is plain that the primary judge accepted the renovation costs estimates as genuine estimates. Her Honour did not consider it necessary or appropriate to determine which option should be pursued by the respondent or her husband in improving the Bassendean property so that it was suitable for their family's future needs. To the contrary, the primary judge, understandably, gave effect to the couple's right of autonomy and left that choice to the respondent and her husband. But in so doing the primary judge ensured that this choice did not adversely affect the appellant's interest in relation to the deceased's estate. The respondent and her husband could pursue the cheaper renovation option; in that case a greater amount would be available by way of buffer for the vicissitudes of life. Or the respondent and her husband could pursue the more expensive renovation option; in that case a lesser amount would be available by way of buffer for the vicissitudes of life. The $450,000 allowance was adequate provision for the respondent's proper maintenance, support and advancement in life in both respects.
[14] ts 174 - 175.
No material error is revealed by that approach. It is entirely consistent with the instinctive or intuitive nature of the assessment that an order for provision may involve trade‑offs or balancing as between two or more objects that impact on what is required for adequate provision for a claimant's proper maintenance, education, support and advancement in life. All the more so it cannot be said that the primary reasons are legally inadequate.
Ground 4 fails.
Disposition ground 2 - the appellant's complaints about matters that the primary judge had regard to or failed to have regard to
Ground 2 rolls up two different types of alleged discretionary error. The appellant says, in respect of some matters, that the primary judge took into account certain irrelevant considerations. These are expressed as being extraneous matters 'regarding the respondent's financial needs' (although one of these matters does not concern financial needs). Alternatively, the appellant says that, in other respects, the primary judge failed to take into account material considerations.
These two kinds of discretionary error must be distinguished from a weighting error. A weighting error is not, ordinarily, an independent ground which may justify appellate intervention in relation to a discretionary decision.
The attribution of weight to one or more factors in a combination of factors is the essence of a discretionary judgment. Accordingly, a disagreement only on matters of weight does not, ordinarily, justify appellate interference: Gronow v Gronow.[15] The extent to which matters of weight may justify appellate intervention in respect of a discretionary judgment was discussed by Latham CJ in Lovell v Lovell:
If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion … unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.[16] (emphasis added)
[15] Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 519.
[16] Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519. See also Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614.
Accordingly, in exercising a discretion, an alleged failure to give any or sufficient weight to a relevant consideration, or a complaint that the primary court gave excessive weight to a relevant consideration, will only constitute a discretionary error if it amounts to a failure to exercise the discretion conferred on the primary court.
The alleged extraneous matters which the appellant says that the primary judge allowed to guide or affect her Honour's exercise of discretion comprise of:
2.3rewarding the respondent for her financial decision making and conduct after the date of death which had the effect of significantly increasing her claim;
…
2.5in finding that responsibility for the estrangement lay with the deceased alone [53], the trial Judge erroneously allowed this [146] to unduly influence the exercise of her discretion;
2.6allowing an amount which would discharge the mortgage on the Bassendean property and pay to renovate the Bassendean property [154] in circumstances where the respondent had a family home at the date of death of the deceased with a modest mortgage and in circumstances where the respondent leading up to trial made a deliberate decision to purchase the Bassendean property, which required renovations to make it suitable for her family, thereby significantly increasing her debt and monthly commitments; (emphasis added)
The relevant circumstances for the exercise of the discretion at the second stage of the process pursuant to s 6(1) are revealed by the text and purpose of s 6(1). The relevant circumstances include: the size of the estate; the nature of the relationship between the claimant and the deceased; the age of the claimant; the claimant's financial and other personal circumstances as at the date of the hearing (including the claimant's level of education and employment history); contingencies (including remote contingencies) which may arise in the future having regard to the position and circumstances of the claimant and the vicissitudes of life generally; the position and circumstances of other claimants with legitimate claims on the deceased's estate and the nature of those claimants' relationships with the deceased; and what the deceased regarded as superior claims or preferable dispositions in relation to his or her estate. See Lemon v Mead [225], [245].
Sub‑ground 2.6 is a more specific complaint of an aspect of sub‑ground 2.3. Accordingly, these two matters may be dealt with together.
The primary judge did not allow herself to be guided or affected by rewarding the respondent for her financial decision‑making and conduct after the date of the deceased's death. To the contrary, the primary judge observed that the authorities did not provide that a wise and just testator is expected to extinguish the whole of an adult child's debts [152]. The primary judge also had proper regard to the authorities dealing with the extent to which s 6(1) authorised an order for provision (see [32] above). More generally, the primary judge considered what was required, in positive terms, to adequately provide for the respondent's proper maintenance, support, education or advancement in life. The primary judge expressly rejected the proposition that this required that the respondent receive a lump sum to pay off all of her debts in circumstances where they were voluntarily incurred by her as an adult [153]. The primary judge also referred to the respondent's ability to partly pay down some of the debts [153]. The primary judge provided no allowance for the mortgage debt in relation to the Inglewood property [149], [154]. Nor was there any allowance on account of the adverse costs in the High Court proceedings [149], [154].
It was appropriate for the primary judge to have regard to the mortgage debt in relation to the Bassendean property and the possible costs in renovating the Bassendean property so far as these matters concerned the respondent's financial and personal circumstances as at the date of the trial.
In the circumstances sub‑ground 2.3 fails because the primary judge did not allow the alleged extraneous or irrelevant matter to guide or affect her Honour in the exercise of the discretion. Sub‑ground 2.6 fails because the matters concerning the Bassendean property and the mortgage associated with that property were not extraneous or irrelevant.
Moreover, so far as the Bassendean property and its associated commitments were concerned, the primary judge properly took into account, and rejected, the appellant's contention that the respondent and her husband had acted in a deliberate way so as to improve the respondent's prospects in the litigation [102], [107]. There is no substance in the appellant's submission that the primary judge erred in awarding provision from the deceased's estate without adequately considering the respondent's responsibility for the claim amount.[17] In this respect the use of the word 'adequately' shows that, at bottom, the appellant complains about the lack of weight that the primary judge attributed to this matter. Further demonstrating that the primary judge took account of the material considerations, her Honour accepted as 'not unreasonable' the explanation provided by the respondent for the purchase of the Bassendean property [103]. The primary judge also expressly took into account the circumstance that the respondent and her husband had chosen not to sell the Inglewood property [107]. There was no discretionary error in the primary judge's considerations concerning the Bassendean property and its associated commitments.
[17] Appellant's submissions par 57.4.
The reference to 'unduly influence' in sub‑ground 2.5 signifies that, by this sub‑ground, the appellant complains about the weight that the primary judge attributed to this matter. There is, in terms of the chapeau to ground 2, no merit in any complaint that the primary judge's finding that the deceased was solely responsible for the estrangement between the deceased and the respondent was an extraneous or irrelevant matter. It is well established that the nature of the relationship between the claimant and the deceased is a relevant matter. In that respect the court conducts an examination of the totality of the relationship between the claimant and the deceased including the conduct of the claimant towards the deceased and the deceased towards the claimant: Lemon v Mead [62] ‑ [63]. Necessarily the nature of any estrangement and the underlying reason for any estrangement is a relevant consideration.
In the present case, the conclusion that the deceased was solely responsible for the estrangement was a relevant consideration in any event. It answered a suggestion of disentitling conduct - something raised by the appellant's suggestion that once the respondent was an adult she chose not to try and repair the situation (see primary reasons [54] ‑ [55]) - and affected the weight to be given to the circumstance that the respondent did not provide the deceased with love and support during his lifetime (compare primary reasons [139], [146]).
In stating that the primary judge erroneously allowed this matter to 'unduly influence' the exercise of discretion, sub‑ground 2.5 advances no more than a weighting error. It asserts that the primary judge gave excessive weight to the consideration. That, for reasons already given, can only amount to discretionary error where it constitutes a failure to exercise the discretion conferred on the primary court. There was no such failure. To the contrary, the primary judge did no more than have regard to the fact of and circumstances surrounding the estrangement between the deceased and the respondent in considering the totality of their relationship [146]. There was no discretionary error in doing so. Nor, reading the primary reasons fairly and as a whole, did the primary judge allow this matter to unduly influence the exercise of her Honour's discretion. In that respect the appellant argued that the primary judge's order for provision in the amount of $1.1 million was intended to compensate the respondent for the deceased's conduct - the appellant contended that, although not expressly stated, the primary judge's approach evinced an aim to correct 'to some extent the [respondent's] hurt feelings or the sense of having been wronged'.[18] There is no foundation for that contention in the primary judge's reasons. That is all the more so given the statements of principle that the primary judge referred to as mentioned at [32] above.
[18] Appellant's submissions par 35 (see also pars 36, 37, 63). See also appeal ts 18 ‑ 23.
Sub‑ground 2.5 fails.
The alleged failures to take into account material considerations comprise:
2.1disregarding or placing inadequate weight on the fact that the respondent and her husband had embarked upon a strategy which, by the time of trial, had increased the respondent's overall level of debt [107] and in circumstances where the respondent and her husband had not fallen on hard times [101];
2.2failing to determine what the actual needs of the respondent were;
…
2.4failing to place adequate weight on the total absence of a relationship between the respondent and the deceased, even if it was solely the fault of the deceased;
…
2.7failing to take into account the superannuation of the respondent and [her husband] at the date of trial. (emphasis added)
There are two difficulties with this second aspect of ground 2. First, in their terms sub‑ground 2.1 (in part) and sub‑ground 2.4 (in whole) are expressed as no more than weighting errors. This, for reasons already explained, cannot sustain an allegation of discretionary error. Second, we do not accept that the primary judge failed to take the matters in sub‑grounds 2.1, 2.2, 2.4 and 2.7 into account in the exercise of her Honour's discretion under s 6(1) of the Family Provision Act. To the contrary, reading the primary reasons fairly and as a whole, the primary judge dealt with each of these matters and took each of the matters into account in awarding the $1.1 million. In this respect it should be recognised that in the section of her Honour's reasons dealing with the exercise of the discretion the primary judge expressly referred to the various findings her Honour had made elsewhere including: (1) the respondent's financial position; and (2) the totality of the respondent and the deceased's relationship including their estrangement [146], [148].
As to sub‑ground 2.1, the sub‑ground itself records that the primary judge found that the respondent and her husband had not fallen on hard times [101]. So too the primary judge referred to and took into account the increase in the respondent's debts [69], [71], [89] ‑ [96], [99] ‑ [107], [148], [150], [152]. Among other things the primary judge rejected the appellant's submission that the respondent and her husband had deliberately increased their debt levels (or 'gild[ed] the lily' as the appellant's counsel submitted before the primary judge) to improve the respondent's prospects in the litigation [102] ‑ [107]. Moreover, the primary judge found that adequate provision did not require that the respondent receive a lump sum to pay off all her debts in circumstances where they were voluntarily incurred and were not incurred as a result of falling on hard times [153]. Sub‑ground 2.1 fails.
Sub‑ground 2.2 is completely without merit. The primary judge found that the respondent's needs were the provision of a suitable family home (by discharging the mortgage on the Bassendean property and renovating it) and a further lump sum to assist the respondent in navigating the vicissitudes of life [153], [154]. There was no failure to determine the respondent's actual needs.
So too, as to sub‑ground 2.4, the primary judge took into account the absence of any relationship between the respondent and the deceased [12], [35], [39] ‑ [40], [53] ‑ [55], [139], [146]; and, in relation to sub‑ground 2.7, made reference to - thereby taking into account - the superannuation held by the respondent and her husband [65] ‑ [67], [69] ‑ [70], [133], [146]. The latter was not a weighty consideration so far as the respondent and her husband were not in a position to access their superannuation for a significant period of time [133], [146]. Sub‑ground 2.4 and 2.7 are without merit.
Ground 2 fails.
Disposition ground 1 - the appellant's complaint that provision in the amount of $1.1 million was unreasonable or plainly unjust
At the appeal hearing, counsel for the appellant confirmed that ground 1 raised, in substance, whether the order for provision in the amount of $1.1 million was unreasonable or plainly unjust in a House v The King sense.[19]
[19] Appeal ts 3, 11 - 12.
The ground contends that the $1.1 million order for provision exceeds an amount sufficient to discharge the proper exercise of the discretion under s 6(1) in the following circumstances:
1.1The respondent is an adult child.
1.2There was never any relationship between the respondent and the deceased at all.
1.3The respondent's personal and financial circumstances, the qualifications of the respondent, her earning capacity and her monthly surplus of income.
1.4During the period of the Family Provision claim, the respondent arranged her financial affairs in a way which increased her debt and monthly expenditure significantly.
1.5A significant component of the liabilities of the respondent were incurred by her after the family provision proceedings had been commenced by the making of imprudent financial decisions.
1.6After the date of commencement of the family provision proceedings, the respondent embarked on litigation against the appellant and a trust concerning the deceased's superannuation and incurred adverse costs orders, including High Court costs orders in the sum of more than $229,066 which, in effect is to be repaid from part of the further provision awarded by the trial Judge.
1.7Contemporary accepted community standards.
In submissions to this court at the appeal hearing, the appellant advanced ground 1 solely by reference to the post‑death financial actions of the respondent.[20] That, in substance, raised the matters referred to in sub‑pars 1.4 ‑ 1.6 as reproduced at [92] above. Counsel for the appellant pointed to:
1.The respondent's purchase of the Bassendean property with her husband - this was said to substantially increase the couple's liabilities in circumstances where the couple continued to also hold the Inglewood property.
2.The respondent pursuing the superannuation litigation concerning the Holly Superannuation Fund - something that had increased the respondent's overall liabilities.
[20] Appeal ts 18.
Counsel for the appellant first argued that the respondent should not be 'rewarded' for her voluntary decisions to acquire further property, increase her financial liabilities and make her monthly financial commitments more onerous.[21] Counsel next characterised the respondent's actions as being taken to 'improve [the] potential claim' and putting herself 'in a far more advantageous position to make a claim or … an increased claim'.[22] Finally, counsel submitted that the effect of the award was to compensate the respondent for the failed proceedings in the High Court and that awarding provision from the deceased's estate to cover this debt would condone the respondent's conduct whether it was imprudent or not.[23]
[21] Appeal ts 7, 15, 17 - 18. See also appellant's submissions par 46 WAB 15.
[22] Appeal ts 16 - 17. See also appellant's submissions pars 39 - 43, 50 - 51 WAB 14 - 15.
[23] Appeal ts 7. See also appellant's submissions pars 44 - 46 WAB 15.
There are three initial difficulties with the appellant's contentions in support of ground 1.
First, contrary to the final contention, the primary judge expressly rejected the respondent's claim that the order for provision should include an allowance for the debt on account of the High Court adverse costs order. The basis for the $1.1 million amount was the mortgage debt in relation to the Bassendean property, renovation costs in relation to the Bassendean property and a lump sum buffer for the vicissitudes of life. Nothing in the order for provision had the effect of compensating the respondent for the failed proceedings in the High Court.
Second, the primary judge expressly rejected the appellant's submission at trial to the effect that the respondent and her husband had taken actions to 'gild the lily' after the deceased's death so as to improve the respondent's claim for provision in the litigation (see [34] ‑ [36] above). That factual finding in not challenged by any ground of appeal. There is, in the circumstances, no proper foundation in the facts as found for the submission that the respondent's post‑death actions were taken to improve the claim.
Third, the primary facts as found do not support the appellant's contention on appeal that the respondent's post‑death financial actions were disadvantageous in the manner pressed in support of ground 1. It is true that the respondent and her husband had a lesser monthly surplus (some $640 per month rather than $850 per month). That might have been expected in any event in circumstances where the couple had an additional child and their children were no longer toddlers. However, the couple's net surplus of assets over liabilities had increased. The respondent and her husband had improved their financial position from one where their net assets were some $159,000 ‑ $190,000 to one where their net assets were nearly $350,000.
Accordingly, the contentions relied on by the appellant in support of ground 1 are unsustainable. For that reason alone ground 1 must fail.
There is a further difficulty. Insofar as the gravamen of ground 1 is that the order for provision in the amount of $1.1 million is unreasonable or plainly unjust the ground asserts that the court should infer or imply error from the outcome. This requires a 'substantial wrong' whereby this court is driven to conclude that there must have been some misapplication of principle: House v The King (505); Wong v The Queen.[24] Accordingly, it is not possible for this court to confine its consideration to those matters whereby, after the deceased's death, the respondent acted to increase her liabilities. There must, instead, be consideration of the whole of the relevant circumstances which bore on the exercise of the discretion.
[24] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [58].
In this respect the key question for this court's consideration is whether, having regard to all of the relevant circumstances as at the date of the order, it was open to the primary judge to conclude that an order for provision in the amount of $1.1 million was adequate provision from the deceased's estate for the proper maintenance, support, education or advancement in life of the respondent.
In Lemon v Mead Mitchell and Beech JJA observed that it was impossible to describe, in terms of universal application, what adequate provision for the proper maintenance, support, education or advancement in life will entail for a parent in respect of an adult child [273]. For present purposes, however, the evaluation is concerned with a particular parent (the deceased) and a particular adult child (the respondent) in the context of a particular estate (the deceased's estate) where the issue is confined to whether the primary judge's order for provision in the amount of $1.1 million was unreasonable or plainly unjust.
The relevant circumstances include the following:
1.The size of the deceased's estate - in this regard the order for provision in the amount of $1.1 million is less than 35% of the value of the deceased's estate (not making any allowance for the costs of the litigation). The estate was sizeable and able to bear disposition to both the appellant and the respondent.
2.The nature of the relationship between the deceased and the respondent - this included the limited maintenance provided by the deceased in favour of the respondent during his lifetime.
3.The respondent's personal and financial circumstances. As at the time of the order for provision the respondent was a 40‑year‑old married woman with two relatively young children. The respondent and her husband had stable employment. However, individually their salaries were relatively modest. The couple's monthly income exceeded their expenses but only marginally so. The respondent and her husband were exposed to the vicissitudes and financial exigencies of life. In that respect, even when their superannuation is taken into account, the couple's available financial resources were limited. The couple had not fallen on hard times. But nor could it be said that their financial security was ensured or well established.
4.Contingencies (including remote contingencies) which may arise in the future having regard to the respondent's circumstances and the vicissitudes of life generally.
5.The nature of the relationship between the deceased and the appellant (the appellant being the only other person with an interest in the deceased's estate).
6.The appellant's superior moral claim in relation to the deceased's estate.
7.The circumstance that the appellant did not advance any claim for financial need.
8.The deceased's testamentary wishes.
It will be appreciated that, to the extent that this list does not expand on each of these relevant circumstances, we have dealt with each matter more fully in earlier parts of these reasons. In particular, we rely on and will not repeat what has been said in recounting the background facts and the primary judge's decision. So too we rely on and will not repeat what has been said in addressing grounds 2 and 4.
In our opinion, having regard to the relevant circumstances and applicable principles in determining adequate provision for the proper maintenance, support, education or advancement in life of a claimant pursuant to s 6(1) of the Family Provision Act, the order for provision in the amount of $1.1 million is not unreasonable or unjust so as to signify that a substantial wrong has occurred or that there has been some misapplication of principle. To the contrary, the order for provision is well within the range of a sound exercise of the discretion under s 6(1) having regard to the size of the deceased's estate and after taking into account all relevant facts and circumstances and the applicable principles for the instinctive and intuitive assessment comprised in the second stage of the inquiry under s 6(1). We would not imply or infer error from the outcome of the primary judge's order for provision.
Ground 1 fails.
Conclusion and orders
While there should be an extension of time to file the appeal notice, the appeal itself must be dismissed.
Prima facie costs should follow the event. The parties will be heard on the question of the costs of the appeal to the extent that a party seeks some other order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SD
Associate to the Hon Justice Vaughan
27 MAY 2025
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