Lester v Lester - [2020] NSWSC 958

Supreme Court

New South Wales

Medium Neutral Citation: Lester & Ors v Lester & Ors; In the Estate of Dulcie Brown [2020] NSWSC 958
Hearing dates: 19 and 20 February 2020
Decision date: 27 July 2020
Jurisdiction: Equity - Family Provision List
Before: Kunc J
Decision:
Provision ordered from estate in respect of second and third plaintiffs; application otherwise dismissed.

Catchwords:
SUCCESSION — Family provision — Claim by alleged member of household for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether a member of household — Whether dependent at any time on the deceased — Whether factors warranting — Adult son-in-law of deceased
SUCCESSION — Family provision — Claim by grandchild for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether
factors warranting — Adult grandchildren

Legislation Cited:
Succession Act 2006 (NSW)

Cases Cited:
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Barnes v Barnes (2003) 214 CLR 169; [2003] HCA 9
Benney v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep)
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23
Dalati v Brown [2020] NSWSC 783
Doshen v Pedisich [2013] NSWSC 1507
Grover v NSW Trustee & Guardian [2015] NSWSC 1048
Kingsland v McIndoe [1989] VR 273
Purnell v Tindale [2020] NSWSC 746
Re Fulop Deceased (1987) 8 NSWLR 679
Russell v NSW Trustee and Guardian [2013] NSWSC 370
Sassoon v Rose [2013] NSWCA 220
Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17
Strang v Steiner [2019] NSWCA 143
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Wawanesa Mutual Insurance Co v Bell (1957) 8 DLR (2d) 577
Wolff v Deavin [2012] NSWSC 1315

Category: Principal judgment
Parties:
Clark Lester (Senior) (First Plaintiff)
Denise Lester (Second Plaintiff)
Megan Michelle Lester (Third Plaintiff)
Clark Lester (Junior) (Fourth Plaintiff)
Sandra Elizabeth Lester (First Defendant)
Terrence Myles Brown (Second Defendant)
Paul Charles Brown (Third Defendant)
Representation:
Counsel:

P Wallis (Plaintiffs)
H Bennett (First Defendant)
L Ellison SC (Second and Third Defendants)

Solicitors:
Pryor Tzannes & Wallis (Plaintiffs)
Glass Goodwin Solicitors (First Defendant)
Macedone Legal (Second and Third Defendants)

File Number(s): 2018/00068995
Publication restriction: No

Judgment

Summary

This is an application under the Succession Act 2006 (NSW) (the “Act”), being four separate claims for family provision from the estate of the late Dulcie Brown (the “Estate”). For convenience and without any disrespect, in these reasons the Court will refer to the parties and others by their given names.
Dulcie died on 2 April 2017, aged 76. She was survived by three adult children - Sandra Elizabeth Lester, Terence (“Terry”) Miles Brown and Paul Charles Brown – along with grandchildren and other family members.
Sandra, Terry and Paul were the sole beneficiaries of the Estate. As the co-executors of the Estate, they were each joined to these proceedings as the First, Second and Third Defendant respectively.
The family provision claims are made by Dulcie’s son-in-law, Clark Lester (“Clark Senior”) and three of her adult grandchildren, Denise Ruth Lester, Megan Michelle Lester and Clark Edward Lester (“Clark Junior”) (together, the “Plaintiffs”).
Clark Senior is married to Sandra. Denise, Megan and Clark Junior are their children. I will refer to the family collectively as the “Lester Family”.
The Plaintiffs each claim to be an eligible person to apply for provision pursuant to s 57(1)(e) of the Act, each having been wholly or partly dependent on Dulcie at certain times during her life, and either as her grandchildren or, in the case of Clark Senior, someone who was a member of Dulcie’s household.
Paul and Terry dispute that the Plaintiffs are eligible persons. Alternatively, they contend there are no factors which warrant the making of their respective claims. Save for making submissions in respect of the burden of any provision (if so ordered), Sandra did not otherwise participate in the proceedings.
Accordingly, there were two broad issues for determination in this matter:

The Plaintiffs’ respective family provision claims pursuant to Chapter 3 of the Act (with eligibility and factors warranting contested in each claim); and

In the event the Court found that provision should be made in favour of any or all of the Plaintiffs, a determination as to how the burden of that provision should be borne by the current beneficiaries of the Estate (the “Burden Issue”).

The Court’s conclusions on these issues may be summarised as:

Each of Megan, Denise and Clark Junior are eligible persons within s 57(1)(e) of the Act, as Dulcie’s grandchildren and having been, during their lives, at least partly dependent on Dulcie.

Clark Senior is not an eligible person, having failed to persuade the Court, on the balance of probabilities, that he was a member of the same household as Dulcie under s 57(1)(e)(ii) of the Act.

Having regard to all the circumstances of the case (whether past or present), the Court is satisfied pursuant to s 59(1)(b) of the Act that there are factors warranting the making of the application for a family provision order in respect of Megan and Denise only.

Turning to s 59(1)(c) of the Act, the Court is satisfied that adequate provision for the proper maintenance, education or advancement in life of Megan and Denise has not been made by the will of Dulcie.

Having regard to the facts known to the Court at the time of the hearing, the Court finds that an order for provision out of the Estate of $65,000 for Denise and $55,000 for Megan should be made.

The provision out of the Estate for each of Megan and Denise is to be borne by the legacies payable to Paul (80 percent) and Terry (20 percent).

The Court’s reasons for these conclusions may be summarised as:

I accept the submissions that Denise and Megan have legitimate claims upon Dulcie’s testamentary bounty. In fulfilling at various times the role of Dulcie’s primary care-giver, particularly towards the end of her life, Denise and Megan went beyond community expectations of what would ordinarily be understood as the relationship between a grandparent and grandchild.

While there may have been some occasions when Clark Senior shared in the domestic life of Dulcie, and whilst there may have been a stronger than usual bond between a son-in-law and his mother-in-law, I am not satisfied on the evidence that Clark Senior played any part in the co-operative task of running, or being a part of, a domestic unit shared with Dulcie. To this end, I do not accept that Clark Senior was ever a member of the same household as Dulcie, as required under s 57(1)(e)(ii) of the Act.

In any event, both Clark Senior and Clark Junior’s claims fail to establish factors warranting the making of an order for family provision. Again, although I readily accept there was a genuine bond or affinity between each of them and Dulcie, the Court is not satisfied the circumstances (past or present) give either of them the status of a person who would generally be regarded as a natural object of testamentary recognition by Dulcie: Re Fulop Deceased (1987) 8 NSWLR 679 (“Re Fulop”).

Having regard to the circumstances of the case (past or present), I am satisfied there are factors warranting a larger provision being made in favour of Denise. I accept that Denise lived at the same property as Dulcie from 2012 and, more significantly, acted as her full-time carer from October 2013 to April 2017 with increasing obligations as Dulcie’s health deteriorated. In contrast, I am only satisfied that Megan returned to live at the same property as Dulcie from early 2016 and of the full-time care she provided to Dulcie from this time onwards.

Adequate provision can be made for Denise and Megan by ordering provision of $65,000 and $55,000 respectively out of the Estate. This takes into consideration their respective relationships with Dulcie, the care they each provided, their financial and (in the case of Megan) medical needs and their limited capacity to meet those needs, as well as the size of the Estate and the respective claims of the defendant beneficiaries.

After considering the circumstances of the beneficiaries, I am satisfied it is appropriate to order that this provision be borne by the legacies payable to Paul (80 percent) and Terry (20 percent).

Mr P Wallis of Counsel appeared for the Plaintiffs. Mr L Ellison of Senior Counsel appeared for Terry and Paul. Dr H Bennett appeared for Sandra.

Procedural background

The Plaintiffs commenced these proceedings on 2 March 2018 by summons, seeking orders for provision out of the Estate for their respective maintenance and advancement in life.
On 13 July 2018, Hallen J made orders in chambers, including:

“2. Orders that the second and third Defendants be appointed to represent the deceased’s estate and notional state for the purpose of these proceedings.

3. Orders that the second and third Defendants have the conduct of the proceedings on behalf of the estate and notional estate of the deceased, with leave reserved to the first Defendant to make submissions, if necessary, as to how the burden of any provision made in favour of the Plaintiff should be borne.”

These orders were a necessary consequence of Sandra’s familial relationship with the Plaintiffs and her position of not contesting their respective claims on the Estate.
On the first day of the hearing, Dr Bennett appeared on behalf of Sandra to address the Burden Issue pursuant to the leave reserved by the Court in Order 3 above and consequential management of the proceedings as agreed by the parties. Dr Bennett informed the Court that Sandra had filed and served submissions in relation to the Burden Issue, and that the parties consented to agreed parts of Sandra’s affidavit evidence being read by Paul and Terry. The Plaintiffs, Paul and Terry further agreed that they would not ask the Court to draw a Jones v Dunkel inference from the failure of either party to call Sandra as a witness.
In light of the parties’ agreement, I excused Sandra from further participation in the hearing. However, this was subject to Dr Bennett appearing, if required, to make oral submissions on Sandra’s behalf as to the Burden Issue following the close of evidence.
Counsel for the Plaintiffs, Paul and Terry were able to complete the evidence before the lunch adjournment on the second day. Dr Bennett was called to appear on behalf of Sandra and made oral submissions in relation to the Burden Issue.
It is convenient at this point to record that a separate family provision claim was brought by another of Dulcie’s grandchildren, Jesse Mudge, in this Court (the “Mudge Proceedings”). Jesse is the son of Dulcie’s late daughter, Michelle, who died in 2010. On 20 June 2019, Hallen J made consent orders pursuant to s 59 of the Act for Jesse to receive a lump sum of $65,000 out of the Estate. However the Mudge Proceedings had no other bearing on the present case.

The facts

This matter concerned four separate claims for provision out of Dulcie’s Estate, which had been left equally to her three surviving adult children. Seven parties were involved in the proceedings. With both eligibility and factors warranting put in issue in respect of each claim, the case necessarily became an extensive fact finding exercise.
Unfortunately there was little on which the parties agreed. Further, various facts concerning the parties’ respective financial and other material circumstances, such as the Plaintiffs’ living arrangements with Dulcie over the years, emerged only under cross-examination. This raised in turn more controversy and complexity of disputed issues than clarity.
As will be apparent, it has been necessary to address specifically each of the Plaintiffs’ living arrangements, along with each party’s financial circumstances. Where any reference is made to findings on contentious matters, they are cross-referenced to that part of the judgment where reasons for the finding are given. It is neither practicable nor necessary to set out in detail every competing argument raised by the parties. Attention is given to those which the Court considers dispositive. To the extent that any other facts set out below were not agreed by the parties, I am satisfied they could not be sensibly disputed.

Dulcie – final will and Estate

Dulcie was born on 19 April 1940 and died on 2 April 2017, aged 76.
Dulcie had been married to Terrence Brown (“Terry Senior”). Dulcie and Terry Senior had four children, the eldest being Sandra born in 1958. Terry was born in 1965 and Paul in 1969. Their youngest child, Michelle, died in April 2010.
Terry Senior also predeceased Dulcie in October 2001.
All parties accepted (as does the Court) that Dulcie was a strong, independent woman and very much the matriarch of the family. She cared deeply for her children and grandchildren, and was generous in providing for and supporting them throughout her life. In turn, Dulcie was respected and much loved by all family members.
For the reasons set out in paragraph [117] and following, the Court finds that Dulcie was in relatively good health up until in or around mid-2016. Although she received some home care assistance and support in her activities of daily life from 2003, this was consistent with the general decline of mobility and independence that comes with the infirmities of old age. However, from in or around mid-2016 Dulcie’s health had begun to deteriorate steadily at an advanced rate and she required increasing support and assistance from her family. The Court has no doubt that by October 2016 and for the last six months of her life, Dulcie could not look after herself.
Dulcie made her will on 1 April 2015 (the “Will”) and devised her net Estate equally between her surviving children. Following her death, probate of the Will was granted on 17 January 2018 to Sandra, Terry and Paul as co-executors of her Will. No provision was made for any of the Plaintiffs under that Will.
An “Agreed Schedule” prepared by the parties prior to the hearing and dated 11 February 2020 sets out the assets and liabilities of Dulcie’s Estate as at that date. The main asset was the proceeds of sale of her home at Phillip Bay (the “Phillip Bay Property”), out of which there had already been interim distributions of $100,000 to each of Sandra, Paul and Terry.
The size of the gross distributable Estate as at 11 February 2020 was estimated by the parties to be $1,299,026.82, with liabilities of approximately $34,635.15.
Notwithstanding the “Agreed Schedule”, a number of assets and liabilities remain in dispute. The parties have sensibly not asked the Court to resolve these issues. For completeness, the amounts in dispute concern a debt to the Estate of $30,105 (money purportedly owed by Sandra) and the Estate’s reimbursement of $28,288.50 for work purportedly undertaken by Clark Senior on the Phillip Bay Property. These amounts combined represent a value of around 4.5% of the Estate’s estimated assets.
The parties estimated their respective legal costs as at 11 February 2020 as:

Ordinary Costs

(inc GST)

Indemnity Costs

(inc GST)

Plaintiffs

$135,000

$177,000

Terry and Paul

$177,000

Sandra

$97,875

$120,600

With respect to Terry and Paul’s costs, the above estimate includes the costs incurred on behalf of the Estate in the Mudge Proceedings (see paragraph [18] above). The orders made by Hallen J on 20 June 2019 included an order that the costs of Paul and Terry, again representing the Estate, in the Mudge Proceedings be calculated on the indemnity basis and be paid out of the Estate.

The Phillip Bay Property

The Phillip Bay Property was owned by Dulcie and Terry Senior. Significant renovations were completed on the property in or around 1992.
In effect, the renovations created two additional units on the land, at the rear of the property. The first was a three-bedroom unit upstairs (the “Upstairs Unit”), with a bathroom, laundry, kitchen and lounge/TV room. The second was a two-bedroom unit downstairs (the “Downstairs Unit”), with a bathroom, kitchen, dining room, a lounge/TV room and a small laundry area.
The Upstairs Unit had its own separate entrance and ran off separate electricity and water meters. The Downstairs Unit was linked to the main residence by a shared hallway and was connected to the main residence’s electricity and water meters.
I pause to note there was a suggestion in Clark Senior’s affidavit evidence that the “dividing wall” between the Downstairs Unit and main residence was removed in or around 2016/2017 to enable “quicker and easier access” between the two. No further explanation of what this meant, or physically entailed, was offered beyond this description. However, as is apparent from the preceding paragraph, the Court accepts that both the Upstairs and Downstairs Units were self-contained to the extent that people could reside in them, with no need to interact with the established main residence at the front of the land, in which Dulcie and (up until 2001) Terry Senior continued to live.

Clark Senior

Clark Senior was born in July 1956 and is currently aged 63. He married Sandra in 1976, having met her when he was 17. Clark Junior, Megan and Denise are their children.
Clark Senior claims that he and Sandra have been separated since on or around 2004. Sandra, on the other hand, deposed in her affidavit that she was married to Clark Senior and that “Clark Senior and I do not live together on a full-time basis”. For the reasons set out at paragraphs [139] and [140] below, the Court finds that any claimed separation is, for the most part, more apparent than real. Although not on a permanent basis, the parties continue to live together and the Court is satisfied that they maintain a significant social and financial dependence on each other.
Clark Senior suffers from a number of health conditions and related co-morbidities, most notably diabetes and obstructive sleep apnoea, for which he receives ongoing medical treatment.

Living arrangements

Between 1977 and 1998, the Lester Family lived in another property in Phillip Bay, which Clark Senior and Sandra had purchased from Dulcie and Terry Senior. This property was located just around the corner from the Phillip Bay Property.
In 1999, Clark Senior and Sandra purchased a further property from Dulcie and Terry Senior, this time located in Nowra. The property was subsequently sold in early 2002. It was not made clear in the evidence whether the Lester Family lived in this property for any period of time between 1999 and 2002, or whether it was solely an investment property. This latter contention arises as a result of the Lester Family’s assertion that they in fact moved into the Upstairs Unit of the Phillip Bay Property from 1998. This is disputed by Terry and Paul, and there was no specific evidence in support of the Nowra property being purchased as, or otherwise becoming, an investment property.
The Court accepts that the Lester Family did move into the Upstairs Unit of the Phillip Bay Property for some period between 1998 and 2002. Based on the evidence before the Court, it is not possible to determine the exact duration. However, as will be apparent, nothing ultimately turns on this finding.
In or around the middle of 2002, Clark Senior, Sandra, Denise and Megan moved into a property in Malabar (the “Malabar Property”). The Malabar Property was being leased at the time by Paul through an organisation which has since become the Aboriginal Housing Office (“AHO”), however the property was vacated when Paul relocated to Narrabri between 2001 and 2012.
The Court accepts that in or around 2005, Sandra moved back into the Phillip Bay Property (although the permanency of this is again unclear, see paragraphs [46] and [138] below). Clark Senior, Denise and Megan remained at the Malabar Property until sometime in 2012, when Paul returned to Sydney.

Clark Senior subsequently leased and moved into a three-bedroom flat in Maroubra (the “Maroubra Property”), which is owned by the AHO and managed by DCJ Housing (the housing agency of the NSW Department of Communities and Justice). Although only Clark Senior and Megan were nominated on the housing application, Clark Senior was entitled to an additional bedroom in order to meet family responsibilities (such as accommodating additional family members staying over), in line with the AHO’s Housing Eligibility Policy.
It was accepted by the Plaintiffs that Sandra, Megan and Denise spent days and nights at the Maroubra Property, although the frequency was disputed. Based on the evidence before the Court, it is again not possible to resolve this issue. However, Clark Senior agreed that since 2012 when he first commenced leasing the Maroubra Property, it has been available for any of the Lester Family to live in (T100:3-5). The Court finds that the Maroubra Property remained the primary residence for Denise until 2012 (see paragraph [71] below) and for Megan until in or around 2016 (see paragraphs [128] and [129] below).
In or around June 2016, Clark Senior moved into the Downstairs Unit of the Phillip Bay Property, where Sandra was already living. Megan and Denise were living in the Upstairs Unit at that time. Clark Senior, Sandra, Megan and Denise remained in the units until September 2018, when they were required by orders of this Court (made in the Mudge Proceedings) to vacate the Phillip Bay Property, so that arrangements could be made for the property’s sale in the course of administration of the Estate.
It was accepted by the Plaintiffs that at no point from the time Clark Senior moved into the Downstairs Unit to September 2018 did any of the Lester Family move into or permanently live in the main residence of the Phillip Bay Property.
Clark Senior then returned to the Maroubra Property, which he had continued to lease in his name notwithstanding that he was living in the Downstairs Unit from in or around June 2016. He continues to live in the Maroubra Property.

Financial circumstances

Clark Senior has been in receipt of the following social security benefit payments from Centrelink on a regular basis since in or around 2006:

Carer Payment, Carer Allowance, Energy Supplement and Pension Supplement from in or around 2006 to 8 March 2019; and

Newstart Allowance, Energy Supplement and Pharmaceutical Allowance from 5 March 2019 to date.

Clark Senior’s receipt of (and eligibility for) Centrelink payments and services became a contentious matter during cross-examination. However, the following could not be sensibly disputed and the Court finds accordingly:

At some time in 2006, Clark Senior ceased paid work to become Megan’s full-time carer. Clark Senior received the higher Carer Payment (in addition to the Carer Allowance) on the basis that he was the full-time carer for Megan and because Megan required full-time care (see paragraph [64] below).

In or around late 2017, Megan returned to work part-time and subsequently transitioned to permanent, part-time employment (see paragraph [65]). Clark Senior ceased to be Megan’s carer around this time, and his receipt of the Carer Payment and Carer Allowance was terminated by Centrelink, effective 8 March 2018.

Since 5 March 2018 Clark Senior’s main source of income has been income support payments from Centrelink.

As at 4 February 2020, Clark Senior received the maximum rate of Newstart Allowance at $510.09 a fortnight. The Court notes that the Newstart Allowance stopped on 20 March 2020, with the new JobSeeker Payment replacing it as the main government income support benefit. Based on the evidence before it at the hearing, the Court infers that Clark Senior would have transitioned to the JobSeeker Payment from that date. This inference is similarly made in respect of all other parties in these proceedings who were in receipt of the Newstart Allowance at the time of the hearing.
Clark Senior’s affidavit evidence from 23 February 2018 records monthly expenditure of around $1,010. No updated evidence on his expenditure has been provided, however the Court accepts that any surplus would be nominal.
Clark Senior owns no real property or other significant assets. In addition to the income to which I have just referred, he also has a bank account with Credit Union Australia. There was evidence that in 2016 Clark Senior had been awarded provision out of his late mother’s estate, following a claim he had brought. By order of this Court on 21 June 2016, Clark Senior was awarded $100,000, from which he was required to pay his own legal bill (agreed in the amount of $10,000). The remaining $90,000 was received into Clark Senior’s bank account on 23 September 2016. Based on copies of his bank statements in evidence, the Court accepts that any current balance is nominal only and that he has no savings.
Clark Senior currently has two outstanding credit card debts totalling $11,000.

Megan

Megan was born in March 1981 and is currently 39 years old. There was no dispute that she has suffered from a number of physical and mental health issues over the years, including epilepsy, keratoconus (impacting the corneas in both eyes, leading to cornea transplants in 2008 and 2011) and schizophrenia. It was also not in dispute that Megan had, as a result of her schizophrenia, previously suffered episodes of psychosis during which her conduct was sometimes very aggressive and violent.
As at the date of the hearing, it was accepted that Megan still experienced a number of health related concerns. However, these medical issues are currently being sufficiently managed so as to enable her to return to work (see paragraph [65] below).

Living arrangements

As is set out in paragraphs [40] to [42] above, up until around 2002 Megan lived with the Lester Family, including in the Upstairs Unit of the Phillip Bay Property for a period between 1998 and 2002. In 2002 she moved into the Malabar Property.
Between 2003 and 2008, Megan lived independently in government housing. At some point in or around 2011, due to health issues and in light of the fact she was no longer working at the time, Megan returned to the Malabar Property.
As set out in paragraph [45] above, in 2012 Megan moved with Clark Senior to the Maroubra Property. Although accepting there were occasions from this time onwards where Megan would go to stay at the Phillip Bay Property, for the reasons provided at paragraphs [128] and [129] below, the Court finds that the Maroubra Property remained Megan’s primary residence up to or around 2016.
For the periods where she did stay at the Phillip Bay Property between 2012 and 2016, Megan lived in the Downstairs Unit. In or around 2016, Megan moved into the Upstairs Unit of the Phillip Bay Property, where Denise was already living (see paragraph [71] below). This coincided with the time that Clark Senior returned to the Downstairs Unit (see paragraph [47] above). Megan remained there until September 2018, when the family were required to vacate the property (see again paragraph [47] above).
I pause here to note the evidence of both Megan and Denise that towards the end of 2016 when Dulcie’s health significantly deteriorated (as to which see paragraph [117] and following), there were occasions in which one of them would sleep on a small bed placed in Dulcie’s room in the main residence. This was to ensure there was always someone available to provide care to Dulcie overnight. The Court accepts this to be the case.
In September 2018 Megan initially moved back into the Maroubra Property with her father. The address provided by Megan on her affidavits sworn in these proceedings in October 2018 and February 2019 was that of the Maroubra Property. Megan gave evidence during the hearing that she stays at the Maroubra Property two to three days a week, splitting the rest of her time between other properties in Redfern and Macquarie Fields. The Court accepts that she has not lived permanently at the Maroubra Property for some time.

Financial circumstances

Due to the health issues set out at paragraph [56] above, Megan was in receipt of the Disability Support Pension for a number of years. No evidence was directed to when these payments started, however the Court infers it was from at least 2006 (when Clark Senior became eligible for and started receiving the Carer’s Payment in relation to Megan). During cross-examination, Megan acknowledged that she is still eligible for “Centrelink Benefits”, however what she receives depends on her reported earnings (T42:48-43:10).
In or around October 2017, Megan commenced employment with Australia Post. She is currently employed in a permanent part-time position (5 days a week), with income of $2,296 per month. In her affidavit evidence Megan claimed to only have this position “up until 2019”, at which point her health conditions would require her to apply for a different position. No evidence was directed to this at the hearing and the Court is satisfied she remains employed at Australia Post.
Megan’s affidavit evidence from 23 February 2018 records monthly expenditure of $1,754, including medical expenses of $20. This figure was revised to $200 for medications in her affidavit sworn 9 October 2018. Megan also purchased a car in October 2019 for $25,484.99, which she owns subject to a loan from Society One. As at 28 November 2019, Megan was paying the balance of the $15,000 loan in fortnightly instalments of $172. She has no real property or other significant assets
No updated evidence on her monthly income or expenditure has otherwise been provided. Based on the figures in the preceding paragraphs, the Court finds that any monthly surplus Megan may have is nominal.

Denise

Denise was born in October 1985 and is the youngest of Clark Senior and Sandra’s children. She is currently 34 years old.

Living arrangements

As is set out in paragraphs [40] to [42] above, up until about 2002 Denise lived with the Lester Family, including in the Upstairs Unit of the Phillip Bay Property for a period between 1998 and 2002. In 2002 she moved into the Malabar Property and also moved into the Maroubra Property in 2012.
It was accepted between the parties that due to the stress and difficulties of Megan’s health issues (see paragraph [56] above), there were occasions between 2011 and 2012 when Denise would go and spend a few days with Sandra at the Phillip Bay Property. The number and frequency of these trips was disputed, and the evidence before the Court is not sufficient to determine the issue.
At some point towards the end of 2012, the Court accepts that Denise moved into the Upstairs Unit at the Phillip Bay Property. However, there were occasions where Denise would return to stay with Clark Senior and Megan at the Maroubra Property (see paragraph [46] above). Again, the number and frequency of these trips were disputed and cannot be resolved based on the evidence before the Court.
As set out in paragraph [61] above, in or around 2016 Megan joined Denise in the Upstairs Unit. The Court accepts there were occasions towards the end of Dulcie’s life where Denise would sleep in Dulcie’s room in the main residence, in order to provide care overnight (see paragraph [62] above).
Since the family vacated the Phillip Bay Property in September 2018 (see paragraph [47] above), Denise has been dividing her time between the Maroubra Property and other friends’ residences. The address provided by Denise on her affidavits sworn in these proceedings in October 2018 and February 2019 was that of the Maroubra Property. However, the Court again accepts that she has not lived permanently at the Maroubra Property for some time.

Financial circumstances

In October 2013 Denise started receiving the Carer’s Payment from Centrelink, in her capacity as Dulcie’s full-time carer. The Court accepts that as a consequence of being Dulcie’s full-time carer, Denise was not otherwise employed. Following Dulcie’s death, Denise commenced receiving the Newstart Allowance from 9 July 2017.
At some time between February and October 2018, Denise commenced employment with Australia Post and is also currently employed in a permanent part-time position (5 days a week), with income of $2,296 per month. She no longer receives income support benefits.
Denise’s affidavit evidence of 26 February 2018 records monthly expenditure of $1,094, including $149 a month on a personal loan repayment. In her affidavit of 28 November 2019, Denise confirms this personal loan has since been repaid.
Denise conceded during cross-examination that she had redacted certain transactions on bank statements she was required to produce in the matter. These redactions concerned money she spent at local RSLs or licensed clubs on gambling activities as well as purchases of alcohol. Denise said that around $300 of her fortnightly income was spent on these activities, however there was evidence that on some occasions this amount could range from $320 to $750 a night. This expense was not included as part of her monthly expenditure disclosed.
Denise owns no real property and has no significant savings.
No updated evidence on her monthly income or expenditure has otherwise been provided. Based on the figures in the preceding paragraphs (particularly the range provided in paragraph [77]), the Court again finds that any monthly surplus is nominal.

Clark Junior

Clark Junior was born in December 1978 and is the eldest of Clark Senior and Sandra’s children. He is currently 41 years old.
Clark Junior has been in a de facto relationship with his partner, Taryn, for about 20 years. Although they remain together, Clark Junior gave evidence that this relationship was, or at least had been, “on and off” over the years.
Clark Junior and Taryn have four children together, aged 12, 13, 16 and 18. At the time of the hearing, all four children were still living at home with them.

Living arrangements

As is set out in paragraphs [40] to [42] above, from on or around 1998 Clark Junior moved with the rest of the Lester Family into the Phillip Bay Property. The Court accepts that Clark Junior and Taryn lived in the Downstairs Unit until in or around the end of 2001, noting there was a suggestion in Clark Junior’s affidavit evidence that they in fact had lived in a “back shed” on the property prior to moving into the Downstairs Unit.
At the end of 2001, Clark Junior and Taryn moved with their children into the Malabar Property for a period of about eighteen months.
In or around 2002, Taryn was approved for government housing and the family moved out of the Malabar Property to a townhouse in the eastern suburbs. Clark Junior’s affidavits sworn in these proceedings identify his address in February and October 2018 as the Malabar Property and in February 2019 as his father’s Maroubra Property. No evidence was directed in the hearing as to whether Clark Junior has in fact returned to either of these properties, or where he, Taryn and their children otherwise reside.

Financial circumstances

Clark Junior is currently employed at R & T (Australia) Pty Ltd. In his latest affidavit he gave his occupation as stores person/driver. His monthly net income is approximately $3,372. Taryn is employed part-time as a receptionist at a doctor’s surgery, although her income was not disclosed in the course of the proceedings.
Clark Junior’s affidavit evidence of 23 February 2018 records monthly expenditure of around $2,616, including school fees and other expenses for his children. Clark Junior gave evidence at the hearing that Taryn usually looks after the housekeeping, rent and utilities, whereas he provides for the shopping, groceries and money for the children. However, there are occasions where each may contribute to the other’s expenses. Although the Court accepts that Clark Junior and Taryn maintain separate finances and bank accounts, it is clear that they are still financially dependent on each other in supporting and providing for their family.
Clark Junior conceded during cross-examination that he too had caused to be blacked out certain transactions on bank statements he was required to produce in the proceedings. The redactions generally related to money he spent at local RSLs or licensed clubs on purchases of alcohol or gambling activities, as well as other online gambling transactions. These expenses occurred frequently, however the amount expended could range, for example, from a single transaction of $100 on one day to several transactions totalling $800 on another. These expenses were not included as part of Clark Junior’s disclosed monthly expenditure.
Clark Junior owns no real property and has not disclosed any significant savings.
No updated evidence on Clark Junior’s monthly expenditure has otherwise been provided. Based on the above figures, the Court similarly finds that any monthly surplus is nominal.

Sandra

Sandra was born in December 1958 and is currently 61 years old. She married Clark Senior in 1977. Clark Junior, Megan and Denise are her children.
There was no dispute between the parties that Sandra experiences a number of health problems. In October 2008 she was diagnosed with post-traumatic stress disorder (“PTSD”) following a work incident and she continues to experience a number of consequential comorbidities (including anxiety and depression).
At the time of the hearing, Sandra had no permanent, secure accommodation. As set out in paragraph [47] above, she was required to vacate the Phillip Bay Property in September 2018 and to date has been staying between the Maroubra Property and a friend’s house. Sandra’s affidavits sworn in these proceedings provide her address as that of her solicitors’ office.

Financial circumstances

The financial circumstances and needs of Sandra were accepted by all parties. Sandra’s assets currently comprise:

A motor vehicle valued at approximately $15,000.

Cash at bank of $37,000.

The $37,000 reflected the balance of a lump sum compensation payment awarded to Sandra by “PSSap” (the Public Sector Superannuation accumulation plan) in October 2019 following the work incident referred to in paragraph [92] above. The total amount paid into Sandra’s bank account was $92,960.75, of which $13,250 was deducted in legal fees. Sandra has no other savings or superannuation and owns no real property.
There was evidence that Sandra was unfit for work until at least 3 January 2020, with her next medical review on 20 December 2019. No subsequent evidence has been provided, however the Court accepts it is unlikely that Sandra’s capacity to work would have materially changed, if at all.
Sandra’s affidavit evidence recorded liabilities of $42,000, which comprised of credit card and personal loan debts. She deposed to fortnightly income of $559 and fortnightly expenditure of $350, leaving a fortnightly surplus of $209. Sandra’s only source of current income is the Newstart Allowance (as it was then called).

Terry

Terry was born in December 1965 and is currently 54 years of age. He has been married to his wife, Veronica, for 36 years and they have two children aged around 36 and 20. Terry currently resides in Wreck Bay in the Australian Capital Territory with his wife, youngest son and a grandson who is aged around 18 years. Their grandson is financially dependent on Terry and Veronica.
In September 2018, following a 6-week trial, Terry was found guilty of a number of criminal offences, for which he was sentenced in December 2018 to a term of imprisonment to be served by way of an intensive corrections order in the community. The sentences were served concurrently and expired on 19 February 2019.

Financial circumstances

Terry had been previously employed as a teacher in the Aboriginal Education Unit for Corrective Services, which was terminated in or around February 2019 following the convictions described in the preceding paragraph. At the time of the hearing he was unemployed. The Court accepts that the convictions have made it difficult for him to find work.

Terry’s assets comprise:

Motor vehicles valued at approximately $2,200

Tradesmen (Builder) tools and equipment valued at approximately $25,000

Household furniture, electronics and appliances valued at approximately $20,000

Superannuation accounts valued at $213,872.

With the exception of the superannuation, all the above assets are held jointly with his wife, Veronica. Terry and Veronica own no real property and have not disclosed any significant savings.
Terry’s affidavit evidence recorded liabilities of approximately $302,257.78, comprising of legal fees, a car loan, credit card and personal loan debts and a debt to the Estate of $1,000. The legal fees are $242,757.78 and arise from the proceedings referred to in paragraph [99] above. The quantum of fees incurred was the subject of some contention during cross-examination, with Mr Wallis raising the issue of whether Terry could have sought Legal Aid (as opposed to incurring fees at private rates). The Court acknowledges the outstanding fees are significant and accepts Terry’s evidence that he was not eligible to receive Legal Aid at the time.
Terry and Veronica’s only source of income are social security benefits received from Centrelink. Terry receives the Newstart Allowance (as it was then called) of $509 a fortnight. As at the time of the hearing, Terry had an application for the Disability Support Pension under consideration. Veronica is his full-time carer. She receives the Carer’s Payment in the amount of $650 a fortnight.
Terry and Veronica deposed to monthly expenditure of $2,794, with credit card and personal loan repayments presently put on hold due to financial hardship. Based on the figures in the preceding paragraphs, the Court finds that they are currently incurring a monthly deficit of around $476.

Paul

Paul was born in June 1969 and is currently 51 years of age. He has two children from a previous marriage, who are aged 28 and 22 years. Neither of his children currently live with him.
Paul is engaged to Veronica Smith (“Veronica S”). They have been in a relationship since the end of 2014 and currently live together. At the time of the hearing, they lived in Mystery Bay but were in the process of re-locating to Byron Bay due to Paul’s new job.

Financial circumstances

Paul recently commenced a new permanent, full-time role as Project Officer at Byron Bay Marine Park. He said that the salary was the same as his previous job as a Ranger with the NSW Government Office of Environment and Heritage, for which he disclosed a gross annual income of approximately $73,500 plus superannuation.
Paul’s assets comprise:

A property at Mystery Bay (the “Mystery Bay Property”) valued at approximately $570,000

A motor vehicle valued at approximately $10,000

Tradesman (Builder) tools and equipment valued at approximately $25,000

Household furniture, electronics and appliances valued at approximately $7,000

Recreational equipment / gear valued at approximately $2,000

Cash at bank of $2,000

Superannuation of $202,488.23.

His affidavit evidence recorded liabilities in his name of $403,737.29, comprising a mortgage over the Mystery Bay Property ($370.641.29) and a number of credit card and personal loan debts.
Paul’s fiancé, Veronica S, is currently unemployed and financially dependent on him. She was relocating to Byron Bay with Paul and was looking for work in the area, however as of December 2019 it was not known if or when she would find work. Veronica S has superannuation of $35,888.07 but otherwise owns no real property and has only a nominal balance in her bank account. She has an estimated personal loan debt of $4,000.
Paul and Veronica S deposed to monthly expenditure of $6,820 - $7,340, including mortgage, personal loan and credit card repayments. Based on the salary identified in paragraph [108] above, the Court accepts Paul’s evidence that they are currently living beyond their means and operate at a significant monthly deficit of around $2,000 - $2,500.

Contentious matters

Before turning to the parties’ submissions, it is convenient to set out my factual conclusions on contested matters. By reference to the uncontested facts, available contemporaneous documents and what was inherently likely, the Court is satisfied, and certainly on the balance of probabilities, of what follows and finds accordingly.
The success of the Plaintiffs’ respective claims turned, in large part, on the Court’s determination of the extent and timing of Dulcie’s health conditions and consequent needs. This was because that issue was inherently linked to both a determination of the degree of care and support each of the Plaintiffs provided to Dulcie, as well as the period when Clark Senior, Denise and Megan each returned to reside in the Phillip Bay Property in Dulcie’s later years. It was accepted by all parties that Clark Junior had not returned to live in the Phillip Bay Property after 2001. However, Terry and Paul were resolute in their denial of the balance of the Plaintiffs’ version of events.
An additional issue that required the Court’s consideration went to the financial circumstances of Clark Senior.
I shall deal with each of these in turn.

What were the medical and consequent care needs of Dulcie?

The Court finds that Dulcie was in relatively good health up until in or around mid-2016. The home care assistance and support in activities of daily life she received from 2003 onwards (when Dulcie was aged 63 years) were consistent with the general decline of mobility and independence that, in the ordinary course, comes with age. However, the Court finds that from mid-2016 Dulcie’s health had begun to deteriorate steadily at a faster rate, whereby she required additional support and assistance from her family. From October 2016 and for the last six months of her life, Dulcie could not look after herself. The Court is satisfied that the role of care-giver during this time was filled primarily by Sandra, Denise and Megan.
Although it became a matter critical to the success of the Plaintiffs’ claims, there was little specific evidence directed towards consideration of Dulcie’s health conditions and consequent needs between early 2012 (the date Denise alleged she moved back to the Phillip Bay Property) and May 2016 (the date of the earliest medical record put in evidence).
The documentary material tendered by the Plaintiffs in support of their claims regarding the care and assistance provided to Dulcie was:

An “Occupational Therapy – Activities of Daily Living” Assessment Report dated 5 May 2016 (the “OT Assessment Report”);

A hospital discharge referral from the Royal Hospital for Women dated 27 October 2016, in relation to Dulcie’s admission on 24 October 2016;

My Aged Care “My Support Plan” assessment dated 1 February 2017 (“My Aged Care Assessment”);

A document entitled “Dulcie Brown - Summary of This Hospital Admission (from 30/12/2016 to 1/2/ 2017)” dated 1 February 2017 (“Hospital Admission Summary”), in relation to Dulcie’s admission at Prince of Wales Hospital between those dates; and

A hospital discharge referral from Prince of Wales Hospital dated 22 March 2017, in relation to Dulcie’s admission on 3 March 2017.

Before turning to the information contained in those documents, I pause to record that, based on the above medical records, between 24 October 2016 and 22 March 2017 (a period of approximately 5 months), Dulcie spent around 2 months in hospital.
The OT Assessment Report was based on an in-person assessment conducted on 28 April 2016, for the purpose of reviewing Dulcie’s mobility and activities of daily living. The OT Assessment Report records Sandra and Megan being present at that assessment. Of particular importance is that the report also records direct observations provided by Dulcie to the Occupational Therapist at the time, including that:

She had relevantly been diagnosed with myositis (which the Court understands as chronic, progressive inflammation in the muscles, which can cause weakness, fatigue and pain);

As a result of her medical conditions, she experienced reduced mobility and strength in lower limbs;

Her daughter (Sandra) and granddaughters (Megan and Denise) provided assistance with all instrumental activities of daily living and supervision when showering if required, and that “her family provide her with care at home”;

She was no longer able to drive due to her medical conditions, but spoke of her family’s support with driving;

She was able to complete dressing tasks, banking duties and manage eating and drinking tasks independently;

Her family supported her with meal preparation and housework duties, however she was “able to manage basic cleaning tasks when seated or if supported in standing”.

In contrast to the above, the Court accepts that by the end of 2016 and early 2017, Dulcie’s health had significantly deteriorated. The Hospital Admission Summary dated 1 February 2017 observed that Dulcie had been admitted on 31 December 2016 “with muscle weakness and unable to walk”, and her history of polymyositis (which the Court understands as muscle weakness affecting both sides of the body) had become “worse in past few months” after recent surgery in October 2016. The Hospital Admission Summary then made the following observations in Dulcie’s plan for discharge:

“• “Family to participate in carer training – practise using the hoist transfer in a safe way, to protect Dulcie as well as carers…

• Home help (community services) called “COMPACKS” package – assessment/paperwork approval to be done on Friday.

• GP who can do home visits.

• Monitor blood tests… at home through GP or community nurses.”

The My Aged Care Assessment of the same date also observed:

“... Dulcie is mobilising on the ward with 2 staff with moderate assistance, belt and forearmed support frame. She is also requiring 2 staff with maximum assistance and belt for sit to stand. Nursing staff are using hoist transfers with 2 staff assist on the ward. Dulcie is doubly incontinent on the ward and wears continence aids. She requires full assistance from nursing staff on the ward with continence management. Dulcie requires set up assistance with meals and is on a soft dental diet with thin fluids. Dulcie requires full assistance with personal care tasks. Dulcie requires ongoing monitoring of skin integrity and assistance with pressure care management due to decreased mobility. Dulcie requires ongoing assistance with meal preparation, medication management, domestic tasks, shopping, transport and finances…

Dulcie usually resides at home with her daughter and her family in own property. Dulcie’s family have been providing ongoing assistance with activities of daily living and [Dulcie] was not in receipt of any formal services at home.

It is Dulcie and her family’s wish for her to return home and recognise for this to occur she will require formal services to support her. Dulcie and her family are requesting approval for a home care package to achieve this.”

In addition to the above records, the Court was also directed to the affidavit evidence of Karen Kelly (who maintained a close relationship with Dulcie), Leslie Karon Hokins (a friend of Sandra’s from school who also maintained a close friendship with Dulcie) and Mary Dixon (Dulcie’s sister, who provided homecare assistance to Dulcie between 2003 to January 2013). Leslie and Mary were also cross-examined during the hearing.
Although Karen, Leslie and Mary disagreed on a number of details, they were consistent in their recollection that Dulcie was a fiercely independent woman and that it wasn’t until the latter years of her life that she needed to rely on her family for assistance. I accept the evidence given by Leslie during cross-examination (which was corroborated with the documentary evidence) that Dulcie remained quite independent up until in or around mid-2015 to early 2016 (T105-106), and was able to attend to her own personal care and needs during that time.

What was the care provided by the Plaintiffs to Dulcie?

Turning now to the care provided by the Plaintiffs, I have already indicated my finding at paragraph [117] above that the role of Dulcie’s care-giver in the periods from 2016 onwards was filed primarily by Sandra, Denise and Megan. Given the care provided by Sandra was not the subject of these proceedings, this finding does not need to be taken further.

Denise

The Court accepts that, on the balance of probabilities, Denise had been providing care and assistance to Denise from at least October 2013. It was at this time that Denise started to receive the Carer’s Payment from Centrelink in her capacity as Dulcie’s full-time carer. I am further fortified in this conclusion when considering Mary’s evidence that she, Mary, ceased providing care to Dulcie at the Phillip Bay Property in January 2013 due to an injury.

Megan

In her affidavit evidence, Megan said that she had made it her priority to be Dulcie’s carer since 2010 following the death of her aunt Michelle, initially driving Dulcie to her medical appointments, doing her shopping and assisting in her banking. In accepting that Megan may have provided some occasional assistance to her grandmother since 2010 and that she had been residing at the Phillip Bay Property on occasions since late 2012 (see paragraphs [60] and [61] above), I am not satisfied that Megan was living permanently at the Phillip Bay Property and providing full-time care to Dulcie until in or around early 2016.
This finding is based in part on the OT Assessment Report (at paragraph [121] above), which is the first contemporaneous document acknowledging Megan residing at the Phillip Bay Property. Moreover, the Court is cognisant of the undisputed evidence regarding Megan’s own health issues (paragraph [56] above), the respective roles of Mary and Denise in providing care for Dulcie (paragraphs [74] and [127] above) and that Clark Senior remained Megan’s full-time carer throughout this period, and that he did not return to the Phillip Bay Property until June 2016. Although Megan maintained she had in fact moved to the Phillip Bay Property in 2012, she conceded in cross-examination that in order for her father to be her full-time carer, it involved her living with him at the Maroubra Property (T36:6-8).

Clark Senior

Turning to Clark Senior, he said that following his return to the Phillip Bay Property in June 2016, he assisted Denise and Megan with caring for Dulcie. It was Clark Senior’s evidence that Dulcie needed 24-hour care and that two people were required to help her move around. From December 2016 to April 2017, Clark Senior said that he assisted Dulcie with transfers from her bed into the chair to get her showered, as well as assisting her to the toilet.
Insofar as it affected his ability to provide care and support to Dulcie (particularly in relation to lifting and assisting with mobility), Terry and Paul put Clark Senior’s health conditions in issue. Mr Ellison SC relied on an affidavit sworn by Clark Senior on 1 March 2016, provided in support of his application for provision out of his late mother’s estate (see paragraph [54] above), and medical conditions stated therein. In particular, Mr Ellison SC drew the Court’s attention to the fact Clark Senior attested in March 2016 that he suffered from hypertension, a possible osteoporosis issue (which was under investigation and required him to have a bone scan), a left hip replacement in 2010 and a fractured thoracic spine in 2015.
During cross-examination, Clark Senior did not accept Mr Ellison SC’s proposition that the fractured thoracic spine was a “pretty serious injury”, insisting the only activity he couldn’t do was “swing the golf club” (T82:30-31). Clark Senior contended he did not receive surgery for it and that it didn’t restrict his ability to help lift Dulcie. This was in turn corroborated by the affidavit evidence of Megan, Denise and Clark Junior – as well as oral evidence during the hearing.
Having observed Clark Senior in the courtroom and witness box, I find that while he suffers from mobility issues, he remains ambulant and physically able. The difficulties the Court encounters with Clark Senior’s case is that no contemporaneous documents support him being at the Phillip Bay Property, nor corroborates the care or support he purportedly provided to Dulcie. The Court accepts that he returned to the Phillip Bay Property in or around June 2016 (see paragraph [47] above), and finds, on the balance of probabilities, that he assisted Denise and Megan in carrying and moving Dulcie, particularly following her surgery in October 2016.
The Court does not accept that Clark Senior was a primary care-giver to Dulcie, and is fortified in this conclusion when again considering that he remained in receipt of the full Carer’s Payment (and Carer’s Allowance) in relation to Megan during the entire period in question. It is also notable that between the months of December 2016 to April 2017, Dulcie spent almost 7 weeks, nearly half that time, in hospital.

Clark Junior

Similar conclusions may also be made in relation to Clark Junior. Although accepting that he had not lived at the Phillip Bay Property since 2001, Clark Junior alleged that he always made himself available for Dulcie whenever she required assistance. He also contended that he would be Dulcie’s relief carer, whenever his parents or sisters went away for holidays. No documentary record supports the care or support he purportedly provided to Dulcie between 2001 and April 2017. At its highest, the Court finds that any care provided by Clark Junior during this time is characterised as incidental care that could reasonably be expected of an extended family member.

The financial circumstances and needs of Clark Senior

Central to the determination of Clark Senior’s financial circumstances and needs was the characterisation of his ongoing relationship with Sandra. Clark Senior’s evidence was that the two had been separated since 2004, maintained largely separate lives (despite often continuing to share accommodation) and were financially independent. Terry and Paul denied this was the case, submitting that Clark Senior continued to receive financial support from Sandra. The inference to be drawn from this contention was that Clark Senior remained a party who already stood to benefit from the legacy payable to Sandra, being a factor the Court may consider for the purposes of determining his application.
It was accepted by Clark Senior that neither he nor Sandra had applied for a divorce since separating on or around 2004. He further accepted that he had maintained a relationship with Sandra since that time, but clarified this was only for the sake of their children (T76:8-10). He denied the proposition put to him by Mr Ellison SC during cross-examination that the two maintained an ongoing personal, social and financial relationship (T100:38-41) and that they, in fact, continued to regard each other as husband and wife, responding they just remained really good friends (T100:49-5).
Against the submissions put by Clark Senior, Terry and Paul relied on the fact that Clark Senior’s bank account with Credit Union Australia was still held in the joint names of Sandra and himself (T89:22-27) and that he still received financial assistance from Sandra by way of payments (T101:7-8). Emphasis was also placed on the fact that Clark Senior and Sandra had lived in the Downstairs Unit of the Phillip Bay Property from June 2016 to September 2018, and that Sandra had continued to stay overnight at the Maroubra Property since it was first leased by Clark Senior in 2012. Clark Senior also accepted that the frequency of Sandra’s stays were in part only limited by AHO’s housing rules restricting overnight guests (T76:24-28).
The Court must take people as it finds them. As I observed recently in Dalati v Brown [2020] NSWSC 783 at [71], there is now a great diversity in views and practices of how personal relationships are conducted. The caution I raised against failing back by default on what might now be called, without disrespect, traditional views of love and marriage are equally applicable to the current case.

The Court accepts that what persists between Clark Senior and Sandra is not a marital bond in the traditional sense. However, the Court also finds that there is what Mr Ellison SC described as only a “geographic” separation between the pair. While not living together on a permanent basis, it is clear that Clark Senior and Sandra retain a high level of financial and social dependence on each other. So much is apparent from Clark Senior’s bank account being held in their joint names, and Sandra’s ability to freely stay at the Maroubra Property. It is also significant that although Clark Senior maintains he and Sandra separated in 2004, in his affidavit evidence sworn 22 February 2018 in these proceedings, Clark Senior referred to being married to Sandra for forty years (they married in 1977) (paragraph 7) and referred to assets shared with his “wife” (paragraph 11).

The law

Eligibility

The Court may only make an order for provision if it is satisfied that the person in whose favour the order is made is an eligible person: s 59(1)(a) of the Act. In New South Wales, it is a multi-category based eligibility system. In the present case, the Plaintiffs each relied on s 57(1)(e) of the Act in support of their claims:

Eligible persons

(1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person: …

(e) a person:
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, …

Turning to the first limb in s 57(1)(e)(i), an applicant must establish a relationship of dependence on the deceased person, whether whole or partial. This is a question of fact: Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 (“Spata v Tumino”) at [68].
A summary of relevant authorities on the meaning of dependency was recently provided by Henry J in her Honour’s judgment in Purnell v Tindale [2020] NSWSC 746 (“Purnell v Tindale”) at [154] – [156], which I gratefully adopt:

“156. In its ordinary sense, dependency means the condition of depending on something or someone for what is needed. The whole relationship must be considered to determine whether there is dependency, considering past events and future possibilities: Ball v Newey (1988) 13 NSWLR 489 at 491, cited with approval in Spata v Tumino [2018] NSWCA 17 at [68] and [78] (Payne JA).

157. Dependency is not limited to purely financial or material matters, although it does involve one person being beholden to another for some material or physical help or succour, emotional dependency is not enough: Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347; Skinner v Frappell [2008] NSWCA 296 at [85].

158. Reliance on someone for accommodation may amount to dependence, but the mere fact of lodging in another’s property without paying rent does not necessarily amount to dependence: Spata v Tumino [2018] NSWCA 17 at [82]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [109]-[111].”

In Spata v Tumino, Payne JA at [71] (with whom Macfarlan JA and Sackville AJA each agreed) referred to the judgment in Barnes v Barnes (2003) 214 CLR 169; [2003] HCA 9 at [44] (per Gummow and Hayne JJ) and [124] (per Kirby J), observing at [71] that their Honours:

“...held that the correct approach to construction of a provision such as s 57(1)(e) of the Succession Act is that the court should be astute not to place a restricted construction upon the terms of such a law.”

The second limb of s 57(1)(e) requires the applicant to either be a grandchild of the deceased person or, alternatively as the case may be, to be “a member of the household of which the deceased person was a member”.

Grandchildren

The position in relation to claims by grandchildren generally was dealt with by Hallen J in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 (“Bowditch”), where his Honour detailed a number of principles at [114]:

“In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered:

(a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased’s testamentary recognition.

(b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.

(c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent.

(d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.

(e) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act.

(f) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents.”

The above passage was cited with approval by the Court of Appeal in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 (“Chapple v Wilcox”) at [65]. In that judgment, Barrett JA (with whom Basten and Gleeson JJA agreed) made the following observations:

“66. Hallen J said that these principles were derived from Tsivinsky v Tsivinsky [1991] NSWCA 269, Sayer v Sayer [1999] NSWCA 340, MacEwan Shaw v Shaw [2003] VSC 318; 11 VR 9, O’Dea v O’Dea [2005] NSWCS 46 and Simons v Permanent Trustee Co Ltd; Estate D Hakim [2005] NSWSC 223. He was careful to add that the stated principles should not be treated as rules of law and that the discretion under s 59 of the Succession Act cannot be constrained by principles drawn from decisions on similar facts. He saw the several principles “merely as providing useful assistance in considering the statutory provisions the terms of which must remain firmly in mind”.

67. Hallen J was, of course, correct to emphasise that preconceptions are dangerous in this area… While the facts of every case are obviously unique, Hallen J’s guidelines do, in my respectful opinion, provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply “the feeling and judgment of fair and reasonable members of the community” in cases of the present kind.”

Member of the same household

The Act does not specify any requisite period of time during which an applicant must have been a member of the same household as the deceased: Russell v NSW Trustee and Guardian [2013] NSWSC 370 (“Russell”) [2013] at [36]. Further, the period in which the applicant and deceased shared the same household does not necessarily have to coincide with the period during which the applicant claims to be wholly or partly dependent on them: Wolff v Deavin [2012] NSWSC 1315 at [30]. However, they must have been a member of the same household as the deceased for some period: Purnell [162] and the cases cited therein.
The relevant legal principles pertaining to the meaning of “household” were not put in issue by the parties, although neither were they addressed in the written submissions. I was, however, referred by Counsel during the hearing to the useful discussion of relevant authorities set out by Hallen J in Russell at [35] – [51]. A recent consideration of the meaning of the words “member of a household” may also be found in Henry J’s judgment in Purnell v Tindale at [159] – [162].
Neither the word “household”, nor the phrase “member of the household”, are defined in the Act. The words must be given their natural and ordinary meaning in the context in which they appear. I respectfully adopt the observation made by Hallen J in Russell at [38] that the word “household” may be contrasted with the word “house”, with the former having an abstract meaning (as opposed to denoting something physical).
The Oxford English Dictionary defines “household” as “the inhabitants of a house considered collectively; a group of people (esp. a family) living together as a unit; a domestic establishment (including any servants, attendants, etc)”. Being a “member of the household” is therefore predicated upon the collective notion of persons “living together” in the same home. Each individual forms a part of and participates, to a substantial degree, in the general life of that household: Benney v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep) at 22, referring to the Full Court of the Supreme Court of Canada’s decision in Wawanesa Mutual Insurance Co v Bell (1957) 8 DLR (2d) 577. Underscored by a sense of unity, intimacy and shared experience, it is evidently the characteristics and dimension of the domestic relation that make it a household: Russell [39].
The concept of being a member of a household thus requires a degree of continuity and permanency of mutual living arrangements: Kingsland v McIndoe [1989] VR 273, per Gobbo J, as cited in Russell at [42]. As observed by Henry J in Purnell v Tindale at [161], the point at which a living arrangement becomes a household is one of degree and it is entirely possible for a person to be a member of two households.

Factors warranting the making of the application

Where an applicant falls within the definition of eligible person with s 57(1)(e) of the Act, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)). It is well settled that this step requires an evaluative assessment to be undertaken.
The Act does not specify the “factors which warrant the making of the application”. However, in Re Fulop at 681D (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23), McClelland J held (in dealing with the cognate section of the Act’s predecessor):

“…the “factors” referred to in the subsection are factors which when added to facts which render the applicant an “eligible person” give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.”

In Doshen v Pedisich [2013] NSWSC 1507, Hallen J reviewed a number of authorities dealing with the issue of factors warranting, including the decision of Sassoon v Rose [2013] NSWCA 220 (“Sassoon v Rose”). His Honour concluded the correct approach is to apply the principles stated by McClelland J in Re Fulop as applied in Sassoon v Rose.
In Andrew v Andrew 81 NSWLR 656; [2012] NSWCA 308, Allsop P (as his Honour then was) said at [16] (cited with approval in Chapple v Wilcox at [62]):

“…the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought be made. This, Sheller JA said, referring to Mahoney JA in Kearns v Ellis (New South Wales Court of Appeal, Glass, Mahoney and McHugh JJA, 5 December 1984, unreported), involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering the application and the facts known to the Court. The evaluative exercise is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This is another consideration which makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court.”

Submissions on whether provision should be made

Submissions on behalf of the Plaintiffs

The Plaintiffs each claim to be an eligible person to apply for provision pursuant to s 57(1)(e) of the Act, each being wholly or partly dependent on Dulcie at certain times during her life, and either as her grandchildren or, in the case of Clark Senior, someone who was a member of Dulcie’s household.
Specific submissions were made by Mr Wallis in respect of each of the Plaintiffs. However, it is convenient first to set out the arguments advanced in support of the Plaintiffs’ claims generally.
Turning first to the Plaintiffs’ alleged dependency on Dulcie, Mr Wallis referred to Hallen J’s judgment in Grover v NSW Trustee & Guardian [2015] NSWSC 1048 (“Grover”) at [124], where his Honour said “…[i]n general, the word ‘dependent’ connotes a person who relies upon support of another, financial and/or emotional’. Mr Wallis referred to several other authorities citied by his Honour in Grover, including Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [109], where Meagher JA wrote that dependency “in this context means actual reliance on someone else for the total or partial satisfaction of some need”.
The Plaintiffs contended that the relationship between the Lester Family and Dulcie (and prior to his death, Terry Senior) was a very close one. The Lester Family had lived in close proximity to Dulcie at Phillip Bay, had always been in very regular contact with her and, at various times, some or all of the Lester Family had lived with Dulcie at the Phillip Bay Property. It was submitted that each of the Plaintiffs were dependent on Dulcie in an emotional sense due to the “continual very close family bonds”: she was close to being a second mother to her grandchildren, and was very close to Clark Senior, who had been a part of the family from the age of seventeen.
Mr Wallis also submitted that each of the Plaintiffs had received direct and indirect financial assistance from Dulcie over the years (the particulars in respect of each Plaintiff are set out in the following paragraphs, where relevant). This financial dependency was said to be particularly evident in circumstances where the Plaintiffs had only ever paid small amounts of rent to Dulcie to help pay for the bills at the Phillip Bay Property or, in the case of Clark Junior, at the Malabar Property between 2001 to mid-2002. The Plaintiffs acknowledged that any rent was only ever paid whenever they could afford it, and was always well below market rent.

Clark Senior

In order to establish his eligibility, Clark Senior was required to demonstrate he had been a member of Dulcie’s household pursuant to s 57(1)(e)(ii) of the Act. In support of this, Mr Wallis relied on the fact Clark Senior had lived at the Phillip Bay Property between 1998 and 2002, and again from in or around June 2016 to Dulcie’s death (see paragraphs [42] and [47] above).
Mr Wallis further emphasised the fact that towards the end of Dulcie’s life, a “dividing wall” between the Downstairs Unit and main residence was removed on or around 2016/2017 (see paragraph [36] above). This had enabled “frequent movement” in and out of the Downstairs Unit, where Clark Senior was living, and the main residence in order to assist Dulcie. It was submitted that one could not “find a higher example of being part of a household” as being there to share in Dulcie’s life, particularly in the last few months (T137:26-31).
Mr Wallis countered the distinction relied upon by Terry and Paul that living in a separate part of the Phillip Bay Property (namely the Upstairs and Downstairs Units) meant there was no “common household” of which they could be considered a member. In response, Mr Wallis emphasised that a household has to do with the contact between the parties, and even if they resided in different parts of the Phillip Bay Property, the frequent contact between the Lester Family and Dulcie meant they were, in a sense, living together.
In establishing dependency as required pursuant to s 57(1)(e)(i) of the Act, Mr Wallis referred to those matters set out in paragraphs [160] and [161] above, and pointed to the following direct and indirect financial assistance provided by Dulcie:

Assistance provided to Clark Senior and Sandra by way of babysitting the children, payments for pre-school and school fees for the children, school excursion costs, sporting equipment, medical expenses and other expenditure relating to the children;

Clark Senior and Sandra received direct cash advances from Dulcie when they were short of money;

Dulcie provided accommodation for the Lester Family in the Phillip Bay Property from 1998 for many years;

From the year 2002, Dulcie facilitated accommodation for the Lester Family (other than Clark Junior) at the Malabar Property;

From June 2016, Clark Senior was provided with accommodation by Dulcie at the Phillip Bay Property, where he assisted with her care; and

The accommodation provided to the Lester Family was always provided at far less than market rental and was frequently provided without charge.

Turning next to the factors warranting Clark Senior’s application, these can be summarised in five points raised by Mr Wallis:

He had maintained a long and close relationship with Dulcie, having been a member of her family since he was 17 and then marrying Sandra when he was 20 years old.

Dulcie and Terry Senior were always supportive of him, and financially assisted Sandra, he and their children on numerous occasions (as set out in paragraph [161] above). Moreover, this financial assistance had been reciprocated, with Clark Senior and Sandra providing financial support to Dulcie and Terry Senior. In his affidavit evidence, Clark Senior referred to Sandra and he buying a car for Dulcie and Terry Senior and giving them $70,000 in total from the sale of their properties in Phillip Bay and Nowra.

He had provided assistance at various times with the construction of buildings and maintenance of buildings, including Dulcie’s property at Hillcrest Avenue, Nowra (and re-building after it burnt down) as well as the Phillip Bay properties.

Assistance and care he had provided Dulcie as her health deteriorated, particularly from when he moved back to the Phillip Bay Property in June 2016. In his affidavit evidence, Clark Senior submitted that from June 2016, Sandra and he had assisted Megan and Denise with caring for Dulcie. Two people were needed to help assist Dulcie in moving around as she had trouble standing, and examples of the assistance Clark Senior provided included helping Dulcie get in and out of bed, helping her stand, helping her walk to the bathroom and assisting her to the toilet. As Dulcie’s health deteriorated, Clark Senior alleged he needed to reside full-time at the Phillip Bay Property to provide her with the “around the clock” care she needed.

Clark Senior is elderly and with a limited working life-span. He will need accommodation and additional financial support to remain in Sydney near his children and grandchildren and to assist with managing his health and medical conditions.

Mr Wallis submitted that appropriate provision, if ordered, would be in the range of $40,000 - $50,000 (T5:16).

Megan and Denise

With no disrespect to the careful way their claims were individually put, it is convenient to deal with Megan and Denise’s claims together, not least because the existence and quantum of their respective claims were grounded in largely the same facts. So much was reflected in the way Mr Wallis also dealt with Megan and Denise’s claims together in his written submissions.
There was no dispute that Megan and Denise were Dulcie’s grandchildren, and so satisfy the second limb of s 57(1)(e) of the Act. Looking to the dependency requirements in the first limb, Mr Wallis referred to those matters set out in paragraphs [160], [161] and, to the extent relevant, [165] above. It was submitted that they had also received the following specific and indirect financial assistance:

From 2012 until Dulcie’s death, Denise was provided accommodation at the Phillip Bay Property;

From late 2012 until Dulcie’s death, Megan was provided accommodation at the Phillip Bay Property;

Megan was provided with direct and indirect financial assistance as an adult by way of Dulcie purchasing food and clothing for her, gifting or lending money to her, including money required for dental treatment;

Denise was provided with direct financial assistance by way of cash gifts from Dulcie.

In then establishing factors warranting, Mr Wallis put forward four key submissions on behalf of Megan and Denise:

the role of Dulcie as an additional maternal presence throughout their childhoods, in circumstances where they had also lived with her for extended periods;

the high degree of personal care that each of them provided to Dulcie, throughout their lives and on a more intense basis commencing in 2012 when they both purportedly moved back to the Phillip Bay Property. It was contended that both Megan and Denise had provided constant care to Dulcie in all aspects of her life, from transporting her to medical, social and family events, cooking for her, assisting her with personal hygiene and ultimately sleeping in the same room as Dulcie, to ensure her needs could be met during the night (in what essentially become fulltime care day and night);

the saving of substantial expenditure by Dulcie and/or her family, which would otherwise have been incurred for travelling expenses, nursing and domestic assistance as well as the costs of having Dulcie admitted to nursing home care; and

the strong social and emotional co-dependency between each of them and Dulcie.

With particular reference to the submissions in paragraph [170(2)] above, Mr Wallis contended that this was a situation where the level of care and support Megan and Denise gave to Dulcie was extraordinary, and went beyond the normal community expectations of a grandparent-grandchild relationship.
In respect of Megan specifically, Mr Wallis submitted that her position in respect of needs, or factors warranting, was a strong one. He referred the Court to her significant ongoing health issues, age and fact that she has no assets in her name. Mr Wallis also emphasised that Megan had been in receipt of Centrelink benefits until recently, had very limited superannuation and was, at the time of hearing, “couch surfing” with no permanent residence.
Turning to Denise’s particular situation, Mr Wallis submitted that she too had no assets. Mr Wallis accepted that Denise had, in recent times, come to spend “what might be considered an exorbitant amount on lifestyle expenses”, relevantly including gambling activities (see paragraph [77] above). Further, he accepted that it was open to the Court to take into account where financial pressures were voluntarily self-inflicted. However, Mr Wallis contended Denise’s financial position should be balanced against the other parties’, including Terry Senior’s debt for legal expenses for conduct for which he was responsible for (see paragraph [103] above).
Mr Wallis submitted that appropriate provision for each of Megan and Denise would be in the range of $75,000 (T5:6-12).

Clark Junior

Again, there was no dispute that as a grandchild, Clark Junior satisfied the second limb of s 57(1)(e) of the Act. Turning to the first limb, Mr Wallis referred to those matters set out in paragraphs [160], [161] and, to the extent relevant, [165] above as well as specific examples:

Accommodation was provided to Clark Junior and his partner, Taryn, at the Phillip Bay Property from 1998 (including their child from 2001) until the family relocated to the Malabar Property in 2002;

Clark Junior and his family were provided with cash assistance by Dulcie for school uniforms, sporting equipment for the children and initial financial assistance to purchase a motor vehicle for the family.

In the case of Clark Junior, the factors warranting were said to include:

the additional assistance he provided to Dulcie as a relief carer to assist his sisters at a time when Dulcie’s health was declining and Clark Junior had his own family to care for and support;

the enduring closeness of the relationship Clark Junior and Dulcie maintained throughout his childhood and adult life;

the ongoing assistance Dulcie provided to Clark Junior to assist with his young family for educational, sporting and other expenses in the same was as Dulcie had assisted Sandra and Clark Senior when they had a young family; and

the assistance he provided with general care and maintenance of Dulcie’s property.

As with Megan and Denise, Mr Wallis submitted that his was a situation where the level of assistance provided by Clark Junior went above and beyond what would normally be expected of a grandchild where he, at the time, also had his own growing family.
Mr Wallis submitted that appropriate provision would be in the range of $25,000 (T5:20).

Submissions on behalf of Paul and Terry

Paul and Terry submitted that each of the Plaintiffs’ claims should be dismissed, as they failed to meet the statutory hurdles set by the Act. Specific submissions were made in respect of each of the Plaintiffs, however it is convenient first to set out the arguments advanced in response to the Plaintiffs’ claims generally.
On behalf of Terry and Paul, it was conceded there was no doubt that the Plaintiffs had received benefits (financial and non-financial) from Dulcie during her lifetime in varying amounts. Mr Ellison SC referred to Mr Wallis’ submission that each of the Plaintiffs had been partially dependent on Dulcie from the moment they came into her life – for Clark Senior, from when he married Sandra in 1976; for the grandchildren, from their respective births. However, in recognising this dependency as something the Plaintiffs sought to rely on, Mr Ellison SC submitted that benefits received inter vivos were also a matter the Court may take into account under s 60(2) of the Act, for the purpose of determining whether to make a family provision order.
In his closing oral submissions, Mr Ellison SC contended that the Court was required to take into account whether the dependency referred to in the preceding paragraph constituted dependency for which there was no alternative, or the generosity of a mother-in-law or grandparent (as the case may be). In this regard, he described the situation as “always the two-edged sword”, submitting “the more generous someone is during their lifetime, does that increase their moral obligation or, to some extent, discharge it?”.
It was Terry and Paul’s position that Dulcie had not increased her moral obligation at death by being generous to the Plaintiffs during her lifetime, and the Court should not find otherwise.
Finally, Mr Ellison SC emphasised the size of the Estate, submitting that the Plaintiffs’ claims collectively totalled $215-000 to $225,000, with a prima facie entitlement of about $500,000 left in the Estate (T8:3-12). It was argued that the circumstances of each of the three defendant beneficiaries (Sandra, Terry and Paul) were such that the Court would not take from them to make a benefit for any of the Plaintiffs (see paragraphs [91] and following above).
In this regard, Mr Ellison SC submitted that the Plaintiffs’ claims were, in effect, a means of enlarging the benefit of one of the three beneficiaries’ families (being Sandra’s) at the expense of the others. Based on the evidence before the Court, it is clear that Terry and Paul each have their own families who benefit collectively from any provision made to them. Mr Ellison SC argued that Sandra’s family now sought to benefit not from what she received under the Will, but from additional family provision orders.
In support of the above, Mr Ellison SC emphasised in written submissions on behalf of Terry and Paul that Dulcie had made previous wills in 2011 and March 2015. Her only beneficiaries were her three surviving children (Michelle having passed away in 2010), save in the March 2015 will where Jesse Mudge received a share of the residue. In circumstances where Jesse was mentioned because his mother had died, the inference the Court was asked to draw was that Dulcie evinced a clear intention not to provide for the grandchildren directly out of her testamentary bounty.
I will next set out the specific submissions put forward in relation to each of the Plaintiffs’ claims.

Clark Senior

Terry and Paul contended that Clark Senior had failed sufficiently to demonstrate that he had been a member of Dulcie’s household and, accordingly, was not eligible to make an application pursuant to s 57(e)(ii) of the Act.
On their behalf, Mr Ellison SC submitted that the “temporal context” Clark Senior relied upon to satisfy the household requirement only dated from in or around the middle of 2016, when Clark Senior moved into the Downstairs Unit of the Phillip Bay Property. However, due to the separate accommodation he maintained from the main residence (in which Dulcie resided), Mr Ellison SC denied there was in fact a “common household” of which Clark Senior was a member.
To this end, Mr Ellison SC emphasised Hallen J’s judgment in Russell and referred to what he asserted to be a similar factual matrix in these proceedings. In Russell, the plaintiff applicant was unsuccessful in demonstrating to the Court that he had been a member of the household of the deceased. In coming to his conclusion, Hallen J in Russell placed emphasis on, inter alia, the evidence that the plaintiff applicant had lived in the tool room under the deceased’s residence, the separate entrance which allowed him to come and go as he pleased, and the limited interaction with the deceased.
Against the possibility that Clark Senior was taken to have satisfied the Court of his eligibility, Mr Ellison SC contended that there were no factors warranting pursuant to s 59 of the Act. Two submissions were put forward in this respect.
First, Clark Senior had only demonstrated limited involvement in the care of Dulcie. If the Court accepted Clark Senior had moved back to the Phillip Bay Property in June 2016, Mr Ellison SC submitted that his care role was confined to some hospital visits pre-October 2016 (when Dulcie was admitted to hospital for surgery), a month in February 2017 between Dulcie’s hospital admissions and in March 2017, after Dulcie’s discharge from hospital to spend her last weeks at the Phillip Bay Property. The amount of time Clark Senior could have devoted to the care of Dulcie was also questioned, given he was Megan’s full-time carer (for which he was receiving the full Carer’s Payment and Allowance) until March 2019.
Second, even if the Court accepted that he had provided care to Dulcie, there was no evidence that Clark Senior had been distracted from employment or had otherwise been disadvantaged to the extent it should warrant provision from the Estate. Mr Ellison SC pointed to Clark Senior living essentially rent-free at the Phillip Bay Property from in or around June 2016 and that from 2006 to March 2019, he had received the full Carer’s Payment and Allowance in relation to Megan.
In support of this second submission, Mr Ellison SC also referred to the purported ongoing financial interaction with, and apparent support from, Sandra during the period in question (see paragraph [136] and following above). Emphasis was also placed on Clark Senior’s receipt of $90,000 from his late mother’s estate in September 2016, which was gone 15 months’ later with “nothing to show for it”. Although Clark Senior alleged he had spent approximately $28,000 of this on repairs to the Phillip Bay Property (as set out in the Agreed Schedule), Mr Ellison SC submitted that receipts attached to his affidavit evidence only totalled about $8,200.
Finally, Mr Ellison SC challenged Clark Senior’s purported needs for further provision. It was submitted that there was no evidence that Clark Senior was looking for work and there was no need for accommodation, given his continued lease on the Maroubra Property.

Megan, Denise and Clark Junior

It was accepted that Megan, Denise and Clark Junior were eligible persons under s 57(e)(ii) of the Act as Dulcie’s grandchildren. Further, while it was not admitted, nor was it strenuously contested by Terry and Paul that each had been partially dependent on Dulcie from time to time, most relevantly during their adulthood. This dependency was apparent in Dulcie’s provision of housing at various times for them, as well as financial support provided to each.
However, Mr Ellison SC contended that the grandchildren had failed to show factors warranting above and beyond what the community would consider to be a usual relationship with a grandparent. He argued that this was not a case where Dulcie had acted in loco parentis to either of Megan, Denise and Clark Junior, and referred to the Court of Appeal’s decision in Chapple v Wilcox. In that judgment, the Court of Appeal referred at [98] to the guidelines stated by Hallen J in Bowditch:

“…while there was a close relationship between the deceased and the respondent (who looked up to his grandfather as an authority figure, mentor and example), it did not involve the bestowing of any special care or affection by the respondent… The findings that were made about the deceased’s financial support in relation to education and training… did not indicate anything beyond the frequently encountered situation of financial assistance to an adult son or daughter in meeting family expenses, particularly those related to children’s maintenance and education. None of these matters supports a conclusion that the deceased, according to community standards and expectations, should have given anything to the respondent by will.”

Mr Ellison SC cautioned the Court against turning Dulcie’s evident generosity toward her grandchildren into some moral burden. In demonstrating that there were no factors positively indicating Dulcie’s responsibility to make provision for her grandchildren, Mr Ellison SC identified three factors.
First, the current financial circumstances of the grandchildren. Mr Ellison SC emphasised that Clark Junior had not disclosed his de facto partner’s income, in circumstances where it was apparent they were financially dependent on each other in supporting and providing for their children. The evidence also suggested that Megan and Denise were in stable, permanent part-time employment. In respect of all three grandchildren, it was contended that they had received a lot more from Dulcie during her lifetime than they had ever reciprocated, with financial contributions towards rent and utilities, on the occasions they could afford it, being comparatively minor.
Second, and linked to the preceding paragraph, particular emphasis was placed on the grandchildren’s “lifestyle choices” and, with respect to Denise and Clark Junior, their alleged pattern of regularly spending their money on gambling activities and alcohol. Mr Ellison SC contended that Dulcie should not be obliged or ordered through her Estate to fund such lifestyle choices, particularly where she had already split her Estate equally between her three children to do with as they wished. The inference the Court was asked to draw was that it was already open to Sandra (for example) to pass on her share of the Estate freely and unencumbered to Megan, Denise and Clark Junior to spend as they pleased.
Finally, although conceding that grandchildren do not need to prove themselves as members of the same household, Mr Ellison SC reiterated that each grandchild had lived independently in separate areas of the Phillip Bay Property. Clark Junior, Megan and Denise had lived, at various times, in either the Upstairs or Downstairs Units – none had lived permanently in the main residence with Dulcie.

Consideration and conclusions on whether provision should be made

Before turning to the merits of each of the Plaintiffs’ claims, there is one preliminary observation to be made.
At the close of evidence on day two of the hearing, I indicated that, with the possible exception of Paul, it was clear no-one involved in these proceedings was in a good financial situation. It was clear that each party had problems of different kinds. In such circumstances and having regard to the relatively small size of the Estate, due and careful regard had to be given to Dulcie’s testamentary intentions as an important, but not determinative, consideration.
There was no dispute that under her Will, Dulcie devised her entire net Estate equally between her three surviving children. Prior to her final Will, Dulcie had made previous wills in 2011 and March 2015 (the “Previous Wills”). As was set out in paragraph [185] above, the only beneficiaries of the Previous Wills were again her three surviving children, save in the March 2015 will where a share of the residue was devised to Jesse Mudge.
I accept such provision to Jesse in the March 2015 will had been made in circumstances where his mother, Dulcie’s youngest child, Michelle, had died in 2010. In neither Previous Will did Dulcie make provision for any other extended family members, including the Plaintiffs. It is also of significance that under the final Will, Dulcie had removed Jesse as a beneficiary.
The Court readily draws the inference invited by Counsel for Terry and Paul, being that, prima facie, Dulcie evinced a clear intention not to provide for extended family directly out of her testamentary bounty (see paragraph [185] above). However, as will be apparent from what follows, even when due allowance is made for Dulcie’s testamentary intentions, the Court has concluded that provision should be ordered for Denise and Megan.

Clark Senior

The Court is not satisfied that Clark Senior is an eligible person within the requirements of s 57(1)(e)(ii) of the Act. Clark Senior’s case fails on the facts, it not being demonstrated to the Court on the balance of probabilities to a state of actual satisfaction that he was a “member of the household” of the Deceased.
The evidence was that the Upstairs Unit and Downstairs Unit were “self-contained” vis-à-vis the main residence of the Phillip Bay Property (in which Dulcie resided). So much was directly accepted by Megan (see T32:29-33, T50:16-17). Apart from contending that the “dividing wall” between the Downstairs Unit and main residence had been removed in or around 2016/2017 (see paragraph [36] above), the Plaintiffs did not otherwise dispute the description and layout of rooms in the units (see T32:35-33:29; T57:26-31).
I am not aware of, nor did Mr Wallis put to me, any authorities that deal with such living arrangements in the context of s 57(1)(e)(ii) of the Act. In the absence of any evidence being put forward to suggest otherwise, the Court cannot be satisfied, and certainly not on the balance of probabilities, that a person residing in the Upstairs or Downstairs Units could be considered, prima facie, as a “member of the household” in which Dulcie lived.

As was expressed by Hallen J in Russell at [173], I did not get the impression that Clark Senior was involved, in an active sense, in participation in “household” functions or engaged in such functions as part of communal life or “living together”. At its highest, accepting written submissions made by Mr Wallis on behalf of the Plaintiffs, Clark Senior lived in “close proximity” and maintaining “regular, close, direct contact and telephone communication” with Dulcie.
In evidence given during cross-examination in relation to his time at the Phillip Bay Property from June 2016, Clark Senior deposed to having meals with Sandra, both Sandra and he cooking for each other and Sandra doing the linen for the Downstairs Unit (T83:16-38). No oral evidence was directed towards the household duties he performed for, or activities undertaken with, Dulcie in the period from 2016 onwards.
In his affidavit evidence, Clark Senior deposed to Sandra and he alternating with Megan and Denise to spend “some nights” at the Phillip Bay Property for a period in mid-2002, during which time he alleged they would provide meals and eat with Dulcie. The frequency of this was not tested in cross-examination, however the period appears to have been at most a few months between Clark Senior, Sandra, Denise and Megan moving to the Malabar Property “in the middle of 2002” and Michelle moving in with Dulcie “in or around mid-2002” (see paragraphs 7 p) and o) of Clark Senior’s affidavit of 22 February 2018). Further, Clark Senior said it was Sandra, Megan and Denise who “would also take [Dulcie] shopping, to the doctor, to the club and to bingo” during this time.
The Court does not dispute that Clark Senior offered assistance and support to Dulcie throughout her life, particularly in her later years. He may have also performed some household tasks, but again there is no evidence that this was consistent, or was undertaken as part of any consistent routine of “living together”. As is set out in paragraphs [117] above and [218] and following below, it was his daughters Megan and Denise who assisted Dulcie with what needed to be done. It is significant that the tenor of Clark Senior’s affidavit evidence was often that his role at the Phillip Bay Property from June 2016 onwards was indeed to offer support to his daughters in their care of Dulcie:

In his affidavit of 22 February 2018:

“7.w) From June 2016, whilst living with [Dulcie], Sandra and I assisted our daughters, Megan and Denise with caring for [Dulcie]…

29. Further Sandra and I had to remain living full-time at [Dulcie’s] home for no other reason than that Megan and Denise who were also caring for [Dulcie] needed help lifting [Dulcie] in and out of the chair and bed, Sandra couldn’t assist Megan and Denise with this but I could and did.”

In his affidavit of 13 February 2019:

“51. …In June 2016… I moved to the Phillip Bay Property to assist Megan and Denise in lifting Dulcie out of the chair and bed, in and out of her car to her doctor’s appointments and to do her shopping…

62. … In June 2016 my family were caring for Dulcie (particularly Megan and Denise) and taking her to and attending upon her Doctors...

99. …I lifted Dulcie and we “danced” into the wheelchair or portable toilet chair; Denise or Megan would help from there or the girls would wheel her into the shower…”

Moreover, Clark Senior’s case rested upon proof that his actions “went beyond” the usual relationship of a son-in-law and his mother-in-law. This is not borne out on the facts. While the assistance he rendered in lifting Dulcie at the end of her life was commendable, I do not accept it had the exceptional (in the sense of more than usual) character for which Clark Senior contended. In reaching this conclusion, I am fortified in this conclusion by the fact that none of the contemporaneous documents make reference to Clark Senior as one of Dulcie’s carers or as a person specifically identified as living in the Phillip Bay Property at the time.

Clark Junior

It is convenient to deal next with Clark Junior’s application.
Addressing first Clark Junior’s eligibility pursuant to s 57(1)(e)(i), Clark Junior submitted that Dulcie always supported his family (including Taryn and their children) both emotionally and financially. Until she passed away, Dulcie would often pay for the cost of school uniforms, football boots and school items for the children, and also assisted in Clark Junior buying a family car in 2010. This support was said to relieve financial pressure on Taryn and himself, and was “all crucial”. The Court is satisfied that Clark Junior was partially dependent on Dulcie from time to time, most relevantly during his adulthood for financial support.
While the Court accepts that Clark Junior is an eligible person pursuant to s 57(1)(e) of the Act, his application is dismissed for lack of factors warranting. Clark Junior’s case again turned upon proof that his actions “went beyond” community expectations of the ordinary relationship between a grandchild and his grandmother so that, in the eyes of the community or by reference to moral duty, he would regarded as a natural object of Dulcie’s testamentary bounty. I am not satisfied that describes Clark Junior.
I again regard it as significant that no documentary record makes reference to Clark Junior as one of Dulcie’s carers. On his own evidence, Clark Junior had not lived at the Phillip Bay Property since 2001. He also referred to himself as Dulcie’s “relief carer”, whenever his parents or sisters went away for holidays (the frequency or duration of such holidays not being put in evidence). As set out in paragraph [135] above, at its highest, the Court finds any care provided by Clark Junior between 2001 and April 2017 as incidental care that could reasonably be expected of an extended family member. It has not been shown that it was of such a degree as amount to factors warranting an order for provision out of the Estate.

Denise and Megan

There was ultimately no serious dispute that Denise and Megan were grandchildren who had at some time been dependent on Dulcie. They are therefore eligible persons pursuant to s 57(1)(e) of the Act and thereby satisfy s 59(1)(a) of the Act.
The Court has no doubt that the tasks they performed in their proven role as Dulcie’s carers clearly warrant the making of their respective applications for the purposes of s 59(1)(b) of the Act.
In circumstances where they have received nothing from the Estate, and considering their financial and other circumstances set out earlier in these reasons, those same factors (the acts of care they provided) inform the Court’s conclusion that the Will does not make adequate provision for their proper maintenance, education or advancement in life. Section 59(1)(c) of the Act is also therefore satisfied and the Court’s discretion to make a family provision order under s 59(2) of the Act is engaged. It will be recalled that Mr Wallis submitted that proper provision for Denise and Megan would be $75,000 each.
Denise seeks provision to enable her to secure long-term accommodation in the Eastern Suburbs (close to family), purchase household items, undertake further education in business administration, IT and computer studies, undertake driving lessons (in order to obtain her driver’s license), purchase a car and an amount for further contingencies.
Megan seeks provision to cover her medical conditions (including costs of specialist appointments and medication), secure long-term accommodation in the Eastern Suburbs (close to her treating doctors and family), purchase household items, undertake further studies and an amount for further contingencies.
The parties did not structure their submissions on this aspect of the matter by close reference to the factors in s 60 of the Act. This reflected what was, with respect, a pragmatic recognition that the principal considerations at this stage of the inquiry would be the size of the Estate and the competing claims of the defendant beneficiaries. I accept that approach as correct.
For the purposes of ascertaining the distributable value of the Estate, because the Plaintiffs were commonly represented, I am of the view that the failure of Clark Senior and Clark Junior does not make a material difference. After deducting the Plaintiffs’ costs on the ordinary basis and the defendants’ on the indemnity basis (including Sandra, but without deciding that point), the distributable value of the Estate as at 11 February 2020 was $1,166,426.82 (adding back the $300,000 interim distributions). This means an approximate legacy of $388,808.94 to each of the defendants.
Sandra’s financial and life circumstances are very poor. Terry’s are only marginally better, but he bears a significant debt for the legal costs of his criminal proceedings. Paul’s circumstances are the best of the three, but as I have already observed, they are nevertheless modest.
For their part, Denise and Megan have very little and are both in obvious need.
Doing the best I can to balance their various needs and circumstances, I consider that provision of $75,000 for each of Denise and Megan would be more than what is adequate. I am also of the view that there needs to be some differentiation between them to reflect what I think the evidence demonstrates, being that over time Denise bore more of the caring burden than Megan because Megan did not move into the Phillip Bay Property until 2016. The Court finds that adequate provision for Denise is $65,000 and for Megan is $55,000.

Submissions on who should bear the burden of provision

In the event the Court is to make a family provision order, s 65(1)(c) of the Act provides that the order must specify the parts of the estate out of which it is to be provided. In making a decision as to the nature of any order, the Court may have regard to the matters set out in s 60(2) of the Act, pursuant to the terms of s 60(1)(b).

Submissions on behalf of the Plaintiffs

The question of who should bear the burden of any provision ordered was not addressed by Mr Wallis either in his written or oral submissions made on behalf of the Plaintiffs. However, on the first day of hearing Mr Wallis referred to the arguments advanced by Dr Bennett on behalf of Sandra. As is set out at paragraphs [233] and following, Dr Bennett contended that applying the Court of Appeal’s consideration of s 65(1)(c) of the Act in Strang v Steiner [2019] NSWCA 143 (“Strang v Steiner”), the burden should be borne by Paul.

Submissions on behalf of Terry and Paul

It was submitted on behalf of Terry and Paul that, in the first instance, any provision ordered should be borne by the legacies payable to Sandra. Alternatively, any provision should be borne by the three residuary beneficiaries equally. Mr Ellison SC contended that, having regard to the respective and relative financial needs of Sandra, Terry and Paul, the case at bar was not an example where it was just and equitable to impose that burden on Terry or Paul alone or on both of them.
Turning first to Terry’s financial needs, Mr Ellison SC emphasised that the criminal convictions (see paragraph [99] above) had made it very difficult for Terry to find work. The only present source of income for both Terry and his wife were social security benefits, and that they were “struggling” on these. The evidence demonstrated that Terry required the benefit received from Dulcie’s Estate to pay his debts, purchase a motor vehicle, cover current and future medical expenses, help his wife and himself support their family, supplement his superannuation and otherwise protect against the exigencies of life.
With respect to Paul, Mr Ellison SC conceded it was well established that Paul enjoyed relative financial stability and success in his circumstances, compared to that of his siblings. However, Mr Ellison submitted that this was not reason in and of itself to burden Paul. Paul’s affidavit evidence demonstrated that Paul required the benefit received from the Estate towards discharging his mortgage, to pay other debts, purchase a motor vehicle, cover future medical expenses (including possible IVF treatment), help and support his wife and himself and otherwise protect against the exigencies of life.

Submissions on behalf of Sandra

Sandra rejected any proposition that the burden should be borne down the family line. On her behalf, Dr Bennett relied on the Court of Appeal’s judgment in Strang v Steiner to support the argument that the Court will consider, and give greater weight to, evidence of the respective and relative financial needs of beneficiaries whose provisions under the Will could potentially bear the burden of any order. The task of the Court overall is to look at all of the evidence, and to then undertake a weighing up exercise.
It was acknowledged that each of the beneficiaries have demonstrated needs. However, Dr Bennett contended that upon a review and weighing up of the relative circumstances of each of Sandra, Terry and Paul, Sandra’s own financial circumstances, mental health and medical conditions are “dire”.
Dr Bennett submitted that the Court would be satisfied on the evidence before it that Sandra has “distinct financial needs”. It was emphasised that Sandra is currently 61 years old, is deemed unfit to work and is currently “drifting” with no stable accommodation. It was further noted that Sandra has had the additional burden of having to incur legal expenses to have her own representation (who has had to be appraised of the whole of the evidence the other parties have put on), notwithstanding that her ultimate role in the proceedings has been limited.
In light of the above factors, Dr Bennett submitted on behalf of Sandra that any burden ought to be borne by Paul alone. She submitted that Terry should not have to bear any burden because of his substantial debt for legal fees and his current, but perhaps not permanent, unemployment.

Consideration and conclusions on who should bear the burden of provision

When deciding “the part of parts of the estate out of which [a family provision order] it to be provided” under s 65(1)(c) of the Act, the Court of Appeal’s decision in Strang v Steiner requires the Court to consider, and give great weight to, evidence of the respective and relative financial needs of beneficiaries whose provision under the Will could potentially bear the burden of any order. In making that decision, the Court will also ensure that it acts in a manner that is just and equitable.
There is strength in the argument advanced by Mr Ellison SC that provision should be borne by all residuary beneficiaries equally, as this would do the least harm to Dulcie’s testamentary intentions that all three of her surviving children benefit equally. However, having had regard to the respective financial circumstances of Sandra, Terry and Paul, this “equality” cannot be achieved by ordering an equal sum to be deducted from each beneficiary’s legacy.
I accept Dr Bennett’s submission that Sandra’s circumstances are dire and that she should not bear any part of the provision the Court will order for Denise and Megan. However, even with his debt for legal fees, I do not accept that Terry’s circumstances are such that the entire burden of the provision should fall on Paul. Taking into account their respective circumstances, in my view it is just and equitable that Terry’s share of the Estate should bear 20 percent of the provision ($24,000) and Paul’s should bear 80 percent ($96,000).
Based on the figures set out in paragraph [224] above, this division still enables Terry to discharge his liabilities (see paragraph [103] above) and Paul to reduce his debts by a substantial amount (see paragraph [110] above). In my view this is the appropriate outcome because Terry’s prospects of future employment are limited, whereas Paul is in regular employment.

Conclusions

The parties will be given an opportunity to bring in short minutes to give effect to these reason and, if there is no agreement, to make submissions as to costs.

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I certify that this and the 62 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Francois Kunc

27 July 2020 Mary Boneham

DATED Associate

Decision last updated: 27 July 2020

Medium Neutral Citation:	Lester & Ors v Lester & Ors; In the Estate of Dulcie Brown [2020] NSWSC 958
Hearing dates:	19 and 20 February 2020
Decision date:	27 July 2020
Jurisdiction:	Equity - Family Provision List
Before:	Kunc J
Decision:	Provision ordered from estate in respect of second and third plaintiffs; application otherwise dismissed.
Catchwords:	SUCCESSION — Family provision — Claim by alleged member of household for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether a member of household — Whether dependent at any time on the deceased — Whether factors warranting — Adult son-in-law of deceased SUCCESSION — Family provision — Claim by grandchild for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether factors warranting — Adult grandchildren
Legislation Cited:	Succession Act 2006 (NSW)
Cases Cited:	Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Barnes v Barnes (2003) 214 CLR 169; [2003] HCA 9 Benney v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep) Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23 Dalati v Brown [2020] NSWSC 783 Doshen v Pedisich [2013] NSWSC 1507 Grover v NSW Trustee & Guardian [2015] NSWSC 1048 Kingsland v McIndoe [1989] VR 273 Purnell v Tindale [2020] NSWSC 746 Re Fulop Deceased (1987) 8 NSWLR 679 Russell v NSW Trustee and Guardian [2013] NSWSC 370 Sassoon v Rose [2013] NSWCA 220 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Strang v Steiner [2019] NSWCA 143 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Wawanesa Mutual Insurance Co v Bell (1957) 8 DLR (2d) 577 Wolff v Deavin [2012] NSWSC 1315
Category:	Principal judgment
Parties:	Clark Lester (Senior) (First Plaintiff) Denise Lester (Second Plaintiff) Megan Michelle Lester (Third Plaintiff) Clark Lester (Junior) (Fourth Plaintiff) Sandra Elizabeth Lester (First Defendant) Terrence Myles Brown (Second Defendant) Paul Charles Brown (Third Defendant)
Representation:	Counsel: P Wallis (Plaintiffs) H Bennett (First Defendant) L Ellison SC (Second and Third Defendants) Solicitors: Pryor Tzannes & Wallis (Plaintiffs) Glass Goodwin Solicitors (First Defendant) Macedone Legal (Second and Third Defendants)
File Number(s):	2018/00068995
Publication restriction:	No

Ordinary Costs (inc GST)	Indemnity Costs (inc GST)
Plaintiffs	$135,000	$177,000
Terry and Paul	$177,000
Sandra	$97,875	$120,600