Page v Page - [2016] NSWSC 1218

Supreme Court

New South Wales

Medium Neutral Citation: Page v Page [2016] NSWSC 1218
Hearing dates: 15, 16 and 17 August 2016
Date of orders: 06 September 2016
Decision date: 06 September 2016
Jurisdiction: Equity
Before: Hallen J
Decision:
Orders that the Plaintiff’s Summons be dismissed.

Orders that any argument as to the costs of the proceeding be listed on a date to be arranged when these reasons are published.
The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.
Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, the brother of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the widow of the deceased and the executrix appointed under the Will to whom Probate granted – No provision for the Plaintiff made in deceased’s Will – Small actual estate in NSW and in Vanuatu – No competing financial claimants although widow and her children are beneficiaries named in the Will – Allegation of sexual abuse by deceased of the Plaintiff when members of the same household – Conduct of the deceased towards the Plaintiff - Whether the Plaintiff an eligible person - Whether wholly or partly dependant on the deceased – Whether factors warranting the making of the Plaintiff’s application – Unnecessary to decide whether adequate and proper provision not made in Will of the deceased for the Plaintiff because Court not satisfied that Plaintiff is an eligible person or that there are factors warranting the making of his application.
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Court (Suppression and Non-Publication Orders) Act 2010 (NSW)
Evidence Act 1995 (NSW)
Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Aafjes v Kearney [1976] HCA 5; (1976) 180 CLR 199
Alexander v Jansson [2009] NSWSC 1000
Alexander v Jansson [2010] NSWCA 176
Amaca Pty Ltd v Novek [2009] NSWCA 50
Bayssari v Bazouni [2014] NSWSC 910
Broadcasting Corporation (NZ) v Attorney-General [1982] 1 NZLR 120
Brown v Faggoter [1998] NSWCA 44
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646
Chen v Lu [2014] NSWSC 1053
Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Diver v Neal [2009] NSWCA 54
Dunn v McCarthy [2010] NSWSC 675
Boniadian v Boniadian; Beniation v Boniadian [2004] NSWSC 499
Evans v Levy [2011] NSWCA 125
Fallow v Mullins [2012] NSWSC 406
Global Torch Ltd v Apex Global Management Ltd [2013] EWHC 223
Hume v The Council of the Kings School [2010] NSWSC 186
John Fairfax & Sons Ltd v Police Tribunal (1986) 5 NSWLR 465
Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178
Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536
JX MX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96; [2015] 1 WLR 3647
Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177
McKenzie v Baddeley [1991] NSWCA 197
Middleton v Kiama District Hospital [1970] 3 NSWR 136
O'Shane v Burwood Local Court (NSW) [2007] NSWSC 1300
Penfold v Perpetual Trustee [2002] NSWSC 648
Petrohilos v Hunter (1991) 25 NSWLR 343
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Porthouse v Bridge [2007] NSWSC 686
R (N) v Mental Health Review Tribunal [2006] QB 468
Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223
Re Fulop Deceased (1987) 8 NSWLR 679
Rinehart v Welker [2011] NSWCA 403
Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 Sadiq v NSW Trustee and Guardian [2015] NSWSC 716
Sadiq v NSW Trustee and Guardian [2016] NSWCA 62
Sadiq v NSW Trustee and Guardian [2016] HCASL 180
Sassoon v Rose [2013] NSWCA 220
Scott v Scott [1913] AC 417
Skinner v Frappell [2008] NSWCA 296
Stojanovski v Stojovski [2016] NSWSC 976
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Wilcox v Wilcox [2012] NSWSC 1138
Williams v Legg (Court of Appeal (NSW), 16 March 1993, unrep)
Williamson v Williamson [2011] NSWSC 228
Yee v Yee [2016] NSWSC 360
Texts Cited: Professor G E Dal Pont, Law of Costs, (3rd ed 2013, LexisNexis)
Category: Principal judgment
Parties: Mr Warren Page (Plaintiff)
Ms Patricia Page (Defendant)
Representation:
Counsel:
Mr K Morrissey and Ms L Clarke (Plaintiff)
Mr R Wilson SC and Mr P Bolster (Defendant)
Solicitors:
Turner Freeman (Plaintiff)
Frank Legal (Defendant)

File Number(s): 2015/56283

Judgment

The Nature of the Claim

HIS HONOUR: This is a tragic case in which the Plaintiff, the brother of the deceased, seeks a family provision order out of the deceased’s estate and notional estate pursuant to the Succession Act2006 (NSW) (“the Act”). He also seeks an order that his costs of the proceedings be paid out of the estate.
The Act applies in respect of the estate and notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (“the former Act”), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person.
The Defendant named in the proceedings is the widow of the deceased and executrix named in the deceased’s Will, to whom Probate has been granted. Her principal submission is that the Plaintiff’s proceedings should be dismissed, with costs.
The case is tragic not only because the deceased died by his own hand in what were described as “horrific circumstances”, but also because there are allegations of sexual abuse made against him by the Plaintiff, which the Defendant, her and the deceased’s children, and other family members, have had to squarely face. In addition, the evidence relied upon (consisting of some 20 affidavits in chief, and in reply, by various family members) go to matters that would, undoubtedly, have been distressing to all of the family. The story is a sad one, and one cannot help but have a great deal of sympathy for all family members. Each has suffered, albeit in completely different ways. However, the case cannot be decided on this basis.
Despite the Plaintiff and his counsel’s repeated reference to “promises” said to have been made by the deceased to the Plaintiff, the case is not one in which the Plaintiff pleads an equitable estoppel arising out of statements said to have been made by the deceased to him. Nor is the case one for damages or compensation, for the sexual abuse alleged to have been suffered by the Plaintiff at the hands of the deceased.

Anonymisation or Pseudonym Order

On the third day of the hearing, at the end of the Defendant’s submissions, senior counsel orally sought an order anonymising the names of the deceased, the parties, and the children of the Defendant in the reasons for judgment that was to be reserved so that their identities would not be apparent. Until that time, such an application had not been advanced at any point during the hearing of the proceedings which took place in open Court.
The precise form of the order sought was not stated by senior counsel. However, I gathered that an order along the following lines was being sought:

“Order that there be the anonymisation of the name of each of the parties, the deceased, and other family members, in the published judgment, and that there be no publication in the media of the names of the parties, the Defendant’s children, the deceased, or any other family member, with a note to be placed on the file plainly recording that this order has been made.”

Senior counsel stated that he did not “know what the protocol is in relation to judgments being used with pseudonyms” (T225.50) and offered to provide submissions. Following the completion of the hearing, late on 18 August 2016, my Associate, at my request, sent an email to leading counsel for each of the parties stating that submissions in writing should be forwarded to the Court within 7 days.
Late on 24 August 2016, junior counsel for the Defendant sent an email to my Associate that simply stated “…the Defendant no longer seeks the adoption of pseudonyms in the reasons for judgment in this matter”.
It follows that it is now unnecessary to deal further with the oral application made on behalf of the Defendant.
Hereafter, without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer to the parties and other family members, after introduction, by his, or her, given name.

The Proceedings

The Plaintiff, Warren Anthony Page, asserts that he is an eligible person within the meaning of that term in s 57(1)(e) of the Act, namely, that he is a person who was, at any particular time, wholly or partly dependent on the deceased and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member.
The deceased is Warren’s brother, Stephen James Page. The Defendant is the deceased’s widow, Patricia Jean Page.
There is no dispute that when they were children, Warren was a member of the household of which the deceased was a member. Nor is there a dispute that he commenced the proceedings by Summons filed on 23 February 2015, which was within the time prescribed by s 58 of the Act, namely not later than 12 months after the date of the death of the deceased. Otherwise, most of the necessary elements to be established by Warren, and many other facts, are in dispute.

Formal Matters

It is appropriate to record certain matters which were not in dispute, or which I find to have been established on the balance of probabilities.
The deceased died on 3 July 2014, at the age of 58 years, having been born in April 1956.
The deceased was one of six children of the marriage of James Harold Page and Yvonne May Page. The other children, Lyle Vincent Page, was born in November 1957; Rodney Paul Page, was born in December 1958; Kieran Lawrence Page, was born in March 1960; Warren, was born in June 1961; and Neralie May Page, was born in August 1962. All of the deceased’s siblings gave evidence in the proceedings, except Keiran, and each of them was cross-examined.
Yvonne and James separated in about 1968. They did not live together at any time thereafter. A short time later, James died (in January 1970), at the age of 43. At that time, Warren was aged 9 years and the deceased was aged 13 years.
Yvonne is currently 81 years of age. She, too, gave evidence in the proceedings and was cross-examined.
Patricia is the surviving spouse of the deceased. She was born in September 1959. She met the deceased in 1980, when the deceased was aged 24 years and she was aged 20 years. They were married in January 1982 and they remained married until his death 32 years later.
There were three children of the marriage of the deceased and Patricia, namely: Carlie Jean Page, who was born in October 1982; Matthew Stephen Page, who was born in April 1984, and Daniel James Page, who was born in June 1990. Neither Patricia, nor any of the children, commenced proceedings for a family provision order under the Act. Only Patricia gave evidence, and she was cross-examined.
The deceased made his last Will on 30 October 2013. On 12 June 2015, this Court granted Probate of that Will to Patricia.
In the Will, as the deceased was survived by Patricia and also his three children, Clause 5 had the effect of dividing his estate into three equal parts with each part held on trust, by his trustee, subject to the terms of three testamentary trusts (one for each child), with the rest and residue of the estate, if any, passing to Patricia. There was no provision made for Warren in the deceased’s Will.
The deceased died leaving an estate in New South Wales and in Vanuatu. In the Inventory of Property attached to, and placed inside, the Probate document, the estimated, or known, value of the property owned solely by the deceased, in New South Wales at the date of death, was disclosed to be $53,339. The estate was said to consist of money in bank accounts ($1,586), various “vehicles” (with a total value of $45,000), scrap metal ($1,600), shares in companies ($151), and a boat ($5,000). The estate outside Australia, in Vanuatu, was disclosed as having an estimated, or known, value of $201,830. The estate was said to consist of money in bank accounts in Vanuatu ($6,056), shares in private companies ($2,774), and “vehicles” (with a total value of $193,000).
However, in her third affidavit, Patricia disclosed that there had been an error made in the valuation of the shares in private companies held in Vanuatu. The value of the shares was increased to $138,748. In addition, the money in bank was increased to $122,870. One vehicle was no longer listed ($30,000), with the result that the value of the deceased’s estate, in Vanuatu, was estimated to be $424,619.
In addition, there was disclosed jointly held property, being money in a bank account in the names of the deceased and Patricia ($5,343). (It was not suggested that one half of the amount held should be designated as notional estate.)
Patricia also disclosed that at the date of his death, the deceased was a member of the Page Executive Superannuation Fund. He left a Binding Death Benefit Nomination dated 30 October 2013, in relation to his superannuation entitlements (then about $272,667) in favour of Patricia. The trustees of the Superannuation Fund (Patricia and the deceased) resolved on that date to accept the Binding Death Nomination.
On 1 May 2015, Patricia signed a Member Notification to Trustee for Commencement of a Commutable Account Based Pension.
At the hearing, the parties agreed that the current value of the property forming part of the actual estate in New South Wales was $51,958. They also agreed that the current value of the actual estate in Vanuatu was about $379,429.
Neither party made any submissions, in writing, about the effect, if any, of s 64 of the Act, which provides that “a family provision order may be made in respect of property situated in, or outside, New South Wales when, or at any time after, the order is made, whether or not the deceased person was, at the time of death, domiciled in New South Wales” and whether the deceased died domiciled in New South Wales.
The relevance of the deceased’s domicile was explained by Brereton J in Chen v Lu [2014] NSWSC 1053 at [75] as follows:

“In so far as this [section] purports to make amenable to a family provision order property outside the State of a testator who dies domiciled outside the State, it has no sufficient connection with the State to be a valid exercise of the State's legislative power and, to that extent, is invalid [Balajan v Nikitin (1994) 35 NSWLR 51, 56; Hitchcock v Pratt [2010] NSWSC 1508, [12]-[17]]. However, in this case, Hong Jie died domiciled in New South Wales, and to the extent that s 64 extends the reach of the Act to immovables outside New South Wales of testators who die domiciled in New South Wales, it is not in excess of power [Balajan v Nikitin, 60-61; Hitchcock v Pratt, [19]]. No relief was in fact sought in respect of the China properties, but their existence as an asset of the estate may nonetheless inform the extent to which those having claims on the deceased's testamentary bounty have received and will receive provision, and thus what order should be made in respect of assets within the jurisdiction [cf Taylor v Farrugia [2009] NSWSC 801, [26]]. They also provide an asset to which Hong Wei can resort to meet the estate's costs, and thus can be relevant to what order is made in respect of costs [cf Taylor v Farrugia, [26], [74]].”)

At the hearing, the parties agreed that the value of property that may be designated as notional estate, at the date of hearing, was “at least $1.3 million”. No details of the nature of the property that could be designated was given, presumably, because Patricia accepted, in the event that Warren was successful in obtaining a family provision order and/or an order for costs, she would meet the amounts payable to him: T3.17 – T3.33.
Usually, in calculating the value of the deceased’s estate and notional estate finally available for distribution, the costs of the proceedings for a family provision order should be considered with circumspection. As Basten JA recently put it in Chan v Chan [2016] NSWCA 222, at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

Warren, as the Plaintiff, if successful, normally would be entitled to an order that his costs, calculated on the ordinary basis, be paid out of the estate or notional estate of the deceased, whilst Patricia, as the Defendant and administrator of the estate, irrespective of the outcome of the proceedings, normally would be entitled to an order that her costs, calculated on the indemnity basis, should be paid out of the estate or notional estate.
The total of Warren’s costs and disbursements of the proceedings, calculated on the indemnity basis, to completion of hearing, were estimated to be a staggering $189,104. That estimate included an "uplift premium", pursuant to a conditional costs agreement between the Plaintiff and the firm of solicitors representing him.
A copy of the conditional costs agreement was not in evidence and, therefore, the Court was not provided with the percentage rate of the uplift fee, although the total amount thereof was estimated to be $17,233 (based upon professional costs of $86,119 as at 11 July 2016). The final uplift fee was not estimated, although the additional professional costs were estimated to be $33,000.
Neither party made any submissions, in writing, as to the entitlement of a Plaintiff to an additional amount for costs for the uplift fee, or the reasons why any such amount should be passed on to a Defendant by an order for costs calculated on the ordinary basis.
During oral submissions, however, it seems to have been accepted that the “uplift fee” was not part of the ordinary costs of the Plaintiff: Professor G E Dal Pont in Law of Costs, (3rd ed 2013, LexisNexis) at [17.55]. I have referred to the passage in Stojanovski v Stojovski [2016] NSWSC 976 at 47.
Warren’s costs and disbursements, calculated on the ordinary basis, were estimated to be $115,696. Without objection, the Court was informed that the amount did not include any uplift fee: T84.50 – T81.08.
The total of Patricia’s legal costs and disbursements of the proceedings, calculated on the indemnity basis, to completion of hearing, were estimated to be $230,536, an eye watering estimate on any view. Of this amount, Patricia has paid, from her own resources, $137,316. Assuming the estimate proves accurate, this leaves the amount of $93,220 left to be paid.
How the burden of the costs of the proceedings will be borne cannot be determined as part of these reasons, as counsel informed the Court that there are documents that may be relevant on the issue, depending upon the result of the proceedings. When these reasons are published, the parties will be given an opportunity to provide any further evidence and submissions on costs based upon the documents, if any of the documents are then relevant.
The parties agreed that the only eligible persons were Patricia and her three children with the deceased. The parties accepted that as a beneficiary named in the Will of the deceased, and even though each has not made an application for a family provision order, the Court is not entitled to disregard her, and his, interest, respectively, as a beneficiary of the deceased’s estate: s 61(1) of the Act.

None of them gave evidence of her, or his, financial circumstances. Each did not assert any financial claim on the bounty of the deceased. Each of the beneficiaries, however, did rely upon being a chosen object of the deceased’s testamentary bounty: T4.43 – T5.00.
The Court may assume that she, and he, respectively, does not wish her, or his, financial resources (including earning capacity) and financial needs, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145, at [45], per Macready AsJ.
The Court is also entitled to infer that each beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VR 527; [1990] VicRp 47 at 535, per Ormiston J; Sammut v Kleemann [2012] NSWSC 1030, at [135]-[139]; Poletti v Jones [2015] NSWCA 107, at [23] (Basten JA).
Because the Plaintiff relied upon it, I note that the deceased had made a Will on 17 September 2009 (a copy of which was Ex. B) (“the 2009 Will”). In the 2009 Will, he had left the whole of his estate to Patricia, provided she survived him by 90 days; but if she did not survive him, he left the whole of the estate to the three children of the marriage who survived, and if more than one, in equal shares, provided that if any child died leaving issue, such issue was to take the share of his, or her, deceased parent; and, subject thereto, to the deceased’s siblings, including Warren, and if more than one in equal shares, as tenants in common. (I shall return to the relevance of the 2009 Will later in these reasons.)

Allegation of Sexual Abuse

There was a substantial dispute between the parties as to the extent the deceased sexually assaulted Warren. Patricia, naturally enough, was unable to lead direct evidence to contradict Warren’s allegations, although she relied upon what are said to be prior inconsistent statements made by Warren.
In this regard, it is important to remember that Warren’s allegation relate to what is said to have occurred over 40 years ago and where the alleged perpetrator of the alleged abuse is dead. In those circumstances, it is very hard to judge the truth of these matters.
In relation to conversations with the deceased, I must also bear in mind the need for careful scrutiny to which evidence in such a case should be subjected (Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544, per Isaacs J at 548-9), and whilst there is no absolute legal requirement for it, I should look for some corroboration (Re Hodgson (1886) 31 Ch D 177; Day v Couch [2000] NSWSC 230; Weeks v Hrubala [2008] NSWSC 162, [20] (Young CJ in Eq)).
I also remember what was written said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123, at [48]:

“... When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2)."

It was not in dispute that between February 1969 (when Warren was aged 7) and January 1974 (when he was aged 13), he was the subject of a great number of very serious sexual assaults by an adult from outside the family, Fabian William Brilliante. These sexual assaults were the subject of criminal proceedings, which included 8 counts of buggery, which were determined in the District Court in June of 2000. Mr Brilliante was convicted of all counts and sentenced to a lengthy term of imprisonment, which the evidence indicates he did not survive. Subsequently, Warren made a Victims Compensation Claim, which was successful.
This matter is relevant for a number of reasons, one of which is that in the trial of Mr Brilliante, Warren gave evidence, some of which related to the deceased. The transcript of part of Warren’s evidence in that trial, was in the following terms (Ex. 3):

“Q.    In conversation you had with Julie Berg you refer to an episode with one of your brothers, a sexual nature?
A.   That’s correct.
Q.    Could you tell us what that involved?
A.    That involved my elder brother, Steven. On a couple of occasions he called me into his bedroom and asked me to lay on the bed and he rubbed his penis up the back of my – the cheeks of my bottom.
Q.   At any stage during that did he penetrate your anus?
A.   Not to my – no, no, not at all, no, I wouldn’t have let him.
Q.    In relation to any injury to the area of your anus, putting aside what you’ve said in your statement in relation to this accused, is there any other occasion that you’ve had any injury or any penetration of your anus?
A.   No, no, not at all.
Q.   I’m putting aside any medical examination by the doctor as well?
A.   No, not at all.”

Despite these allegations having been made, no charges were ever laid by the police against the deceased; he was never committed for trial; and until early 2014 Warren never pursued him for any compensation.
It follows that there was no opportunity, during the lifetime of the deceased, to test, in any formal way, the truthfulness, or otherwise, of the allegations made against him by Warren.
Furthermore, in July 2014, Warren gave a signed statement to Police (Ex. 2), part of which was in the following terms:

“4. When I was about 7 years old I was sexually abused by my brother Stephen PAGE. The abuse took the form of him rubbing his penis between the cheeks of my bottom. Stephen was several years older than me. This went on a few times and then stopped. I found out later when I was much older that Stephen had been abused himself by our father at home and several Marist Brothers at St Vincents Boarding Westmead. My father James PAGE was a former Marist Brother himself. There was a suspicion that dad provided Stephen to the other Marist Brothers. I myself have no doubt of that.
…
6. After the trial everything was fine between us and we opened up to each other about the abuse we both received. I received several years of counselling but Stephen didn’t ever speak to anyone. I am not sure if anything was disclosed to his wife, Trish.”

(The last sentence of the last paragraph is difficult to reconcile with the evidence of the conversations, in early 2014, involving Warren, Stephen and Patricia.)
In his affidavits read in these proceedings, Warren painted a far more graphic, and extensive, picture of the sexual assaults said to have been perpetrated by the deceased, which is not necessary to repeat in these reasons. In my view, this Court, in these proceedings, should not determine whether the allegations of sexual assaults that have been made have been established. This type of allegation should not, normally, be determined after the death of the alleged perpetrator, in civil proceedings for a family provision order, on the balance of probabilities. Those allegations are being made against a person who is unable to defend himself. Others involved in the life of the deceased have little, or no knowledge, of the truth of such allegations.
These proceedings should not be the vehicle by which allegations of sexual abuse should be determined. Yet the current proceedings appear to have been conducted by or on behalf of Warren, almost completely, upon the basis that the deceased had a duty in his Will to make good to him the loss and damage said to have been suffered as a result of the alleged sexual assaults.
In Williamson v Williamson [2011] NSWSC 228 at [124] – [127] (albeit in respect of parental behaviour) I wrote:

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

In Curran v Harvey [2012] NSWSC 276, at [124], I added:

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

I repeated what I said in Williamson v Williamson in Fallow v Mullins [2012] NSWSC 406.
This was also the view expressed by the Court of Appeal in Victoria, in Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178, a case involving a claim for a family provision order, in which allegations of sexual abuse were established at the trial. That Court, at [40], wrote that similar legislation “[does] not create an alternative means of obtaining compensation or damages for a wrong done to a person by the testator or for which the testator bears some blame. Nevertheless, the testator’s conduct may explain why the claimant has a particular financial need.” (Omitting citations.)
Whether Warren has a particular financial need caused by the vestiges of the sexual abuse allegedly perpetrated upon him by the deceased is also complicated by the established conduct of Mr Brilliante. I shall next deal with the medical evidence upon which Warren relied, albeit that these proceedings cannot, and should not, be the vehicle by which complicated issues of causation are determined.

Medical Evidence

Warren relied upon a medico-legal report dated 30 June 2015, of Consultant Psychiatrist, Patricia Jungfer, a copy of which was Ex. A. She noted that he had been seen, once, “with regards to the ramifications of being sexually abused as a child by his older brother”.
Annexed to her report was a copy of a letter of instructions. In that letter, she was asked to consider and opine on the following questions:

“1.   Does Mr Page have ongoing psychiatric issues or disabilities as a result of or caused by the abuse suffered at the hands of his brother as a child, which abuse occurred over a period of years.
2.   Does Mr Page have financial or other needs that you can identify or report upon as a result of such abuse including but not limited to the cost of ongoing psychiatric care and psychological care and treatment.
3.   In your opinion, is our client’s ability to work impaired as a result of the abuse by his brother, if so please advise if he may be impaired in the future.”

Warren informed Dr Jungfer, that his “recollection of his brother is one of being terrified”; that he “was threatened and victimized by his older brother and threatened if he disclosed what had happened, and often implied that [Warren] would get into trouble if he had ever disclosed what occurred”.
Warren reported to Dr Jungfer that “he was never close to his brother, he was rarely invited to events in his brother’s life when his brother was an adult, and if there was any connection, or any contact or interaction, his brother always acted as a person who is superior and someone who has power over others”.
Again, I shall not repeat the allegations of sexual assaults communicated to Dr Jungfer, other than to note that they were far more serious and graphic than was asserted in the sworn evidence that Warren had given in Mr Brilliante’s trial and in the written and signed statement to the Police made by Warren, to which reference has been made.
In addition, the clear impression communicated by Warren to Dr Jungfer was that, over time, the forms of abuse alleged to have been perpetrated by the deceased escalated. The period over which the abuse was said to have taken place was “from the age of seven years … to 16 years and nine months”.
Importantly, from Dr Jungfer’s perspective, was the history provided by Warren that the sexual abuse by the deceased occurred first, and it was, in time, followed by the sexual abuse perpetrated by Mr Brilliante. Dr Jungfer described the history as relevant, because “in psychiatry we would view that as a person being re-victimised”: T93.24 – T93.29.
Also important to Dr Jungfer was the history given that the period of abuse by the deceased was longer than the period of abuse by Mr Brilliante.
Warren acknowledged to Dr Jungfer that “initially he could only recall 4 occasions when he had been abused by [the deceased] …subsequently …the events have become clearer and more intrusive”. Dr Jungfer explained this phenomenon as follows (at T97.26 – T97.41, correcting obvious transcript typographical errors):

“A. Well, one of the things that you see happens with someone who has been sexually abused and then comes forward is the - and who may have had treatment - is that initially the amount of history they provide is more circumscribed, because they have in a sense almost stepped over a door and opened up about it. And as time progresses, two things happen. They're repeatedly asked about the abuse, and the effect of that is, is that it, it triggers more and more memories, you know, once they have opened the Pandora's box, so to speak.
But the other thing that happens is that the person becomes in a sense more comfortable about talking about it, so they will provide more history as well. And then the last thing to look at is, of course, society's attitude has changed, you know, in terms of childhood sexual abuse is something that is so much more evident within our media about having occurred, so people will disclose much more because it's no longer seen as being something that has only happened to them.”

Whilst Warren’s first affidavit (sworn 20 February 2015) and an affidavit of Yvonne, was provided to Dr Jungfer, neither the transcript of the evidence that he had given, or the written signed statement that he had made to the Police, were provided to her prior to her writing the report. In my view, these omissions affect the weight of the conclusions in her report.
Dr Jungfer described Warren as suffering from chronic post-traumatic stress disorder. She opined that he “would benefit from ongoing clinical psychological support”, at the cost of $235 per hour, but there is no evidence that he has taken her advice and attended upon a clinical psychologist. However, no more information about his current medical condition has been tendered.
In cross-examination, Dr Jungfer was referred to a number of the matters identified in Warren’s evidence at Mr Brilliante’s trial and what he had written in his statement to the Police. She was asked:

“If there were only four occasions where there was touching of the buttocks and with the penis on the buttocks, if the deceased's conduct towards Mr Page was limited to that on four, five, maybe six occasions, when you compare that to penetration by Mr Brilliante first, over five years, upwards of 80 and a hundred times, surely the initiating and maintaining factor of any post traumatic stress disorder is what Mr Brilliante did to Mr Page, not what his brother did.
A. On those assumed facts, yes.”

In re-examination, Dr Jungfer stated that “[I]f we look at childhood sexual abuse, it’s how much it invades the individual in a sense. So obviously oral sex and anal intercourse are more invasive”: T101.33 – T101.36.

Relevant Aspects of Warren’s Conduct

There were several particular aspects of Warren’s evidence and of his conduct before and after the deceased’s death that I have found troublesome in the context of this case.
Overall, I did not find Warren to be a particularly impressive witness. I found him to be a witness who was extremely anxious to highlight that he had suffered at the hands of the deceased, and, although not put in these terms, to ensure that he should be compensated for the loss and damage that he believed had been caused by the deceased’s conduct.
In almost all of his affidavits, he had raised the allegations of the sexual misconduct, and very little evidence dealt with any other basis of his claim for a family provision order. (In this regard, I have not omitted from my considerations the allegations that he has made against the deceased, and the effect of those allegations on his ability to give evidence dispassionately.)
During the determination of objections to Warren’s affidavits, an issue arose concerning whether certain discussions, said to have been communications made between Warren and the deceased “in connection with an attempt to negotiate a settlement of a dispute” between them.
On enquiry, without objection, the Court was informed that there would be evidence going to the threat of civil proceedings made by Warren. (In fact, as will be read, there was another threat that extended beyond the threat of civil proceedings.) In particular, senior counsel for Patricia informed the Court not long after the commencement of the hearing (at T10.50 – T11.02) that:

“We have been served with a draft statement of claim for damages arising out of the alleged sexual assault, and that will come into evidence”.

The Court then raised the issue with Warren’s counsel in the following passage:

“There were no criminal proceedings ever brought against the deceased. If it is correct that there are civil proceedings being contemplated, you haven't put on any evidence about that and you haven't put on any evidence about what the result of those proceedings might be. If there is the contemplation of civil proceedings, isn't the fact that there is such a contemplation - and if Mr Wilson is right that I'm going to see some evidence about a proposed statement of claim - isn't that a chose in action which the plaintiff has, which goes to his financial resources and which might be relevant on his financial and material circumstances? So if for example he has these civil proceedings, if he's going to bring civil proceedings at some time in the future, don't you have the obligation to say, ‘This is what's contemplated. Here is an opinion of what the value of those civil proceedings are’?

MORRISSEY: That could be the case, your Honour, but civil proceedings as far as I'm aware are not realistically contemplated. There's nothing in the estate…
HIS HONOUR: Well, if the civil proceedings are not really contemplated, Mr Morrissey, what's the point of serving a draft statement of claim?
MORRISSEY: That was done some time ago. It is now clear that there's nothing of any substance left in the estate which any judgment could be secured against, from what I can understand. So it's pointless.
HIS HONOUR: I don't know whether that's so or not.
MORRISSEY: We have heard that there's almost nothing left in the estate after costs are taken out.
HIS HONOUR: I don't know. But you have put on - or there's going to be some evidence of a threat of civil proceedings. For all I know, the civil proceedings might be brought in the hope that some additional asset in the estate will be located and
MORRISSEY: They're not my instructions. The plaintiff could be asked about that.”

And so Warren was “asked about that”. During cross-examination, Warren was shown a letter dated 4 May 2016, sent by his solicitors (in these proceedings) to Patricia’s solicitors (in these proceedings) under cover of which was “a copy of the statement of claim prepared in respect of the matter”.
The draft Statement of Claim is headed in the Common Law Division of this Court; the named Defendant is Patricia; Warren asserts that he suffers from “post-traumatic stress disorder [which] impairs him in respect of his ability to be employed”; and Warren seeks damages “as a consequence of the said assaults by the deceased, the plaintiff [suffering] injury, loss and damage”, including the costs of medical treatment in the past and in the future.
Although lengthy, it is next necessary to set out the evidence initially given by Warren on this topic at T40.00 – T42.36:

“Q. That’s a letter dated 4 May 2016 from your solicitors to the solicitors for Patricia Page annexing a statement of claim.
A. Should I read this?
Q. I’m asking you to look at it. You’ve seen that statement of claim before, haven’t you?
A. Yes.
Q. You instructed your solicitors to send the letter of 4 May, didn’t you?
A. I believe I would have.
Q. The letter said, amongst other things, “Are you instructed to accept service?” Isn’t that so?
A. I, I don’t understand what you mean.
Q. If you turn to the letter on the first page. The first page of the letter.
A.
“Please advise whether you’re instructed by the defendant to accept service of the statement of claim.”

Q. You read that letter before it went out?
A. I more than likely would have.
Q. Do I take it from the fact that the letter said, “Are you instructed to accept service” that it was your intention at the time the letter was sent out, 4 May, with the statement of claim, it was your intention then to file this statement of claim and commence proceedings as contemplated in that document; correct?
A. I would say “Yes”.
Q. Is it still your intention to file the statement of claim for damages for sexual assault arising, you say, from the actions of your late brother, Stephen?
A. I don’t understand what you mean.
Q. It’s a simple question. Do you still intend to file the statement of claim and seek damages against his estate for sexual assault?
A. I believed that was in motion.
Q. Your present intention is to pursue Stephen’s estate for damages for what you say is a sexual assault perpetrated on you by him?
A. I believe that it, it - it’s running its course.
Q. You have not formed any intention to withdraw the statement of claim or not proceed with it?
A. Not based on any advice I have at this stage.
Q. Do you know whether the statement of claim has, in fact, been filed? Has your solicitor told you that?
A. I’ve been informed that the process was in motion, as much as I know.
Q. Have you received a letter from your solicitor which says, “We have now filed the statement of claim”?
A. I don’t recall if I have.
Q. Did your solicitor say to you, “We’ve filed the statement of claim but we want to wait until we determine the result of these proceedings now before we serve the statement of claim”? Have they said that to you?
A. I’m not sure in that terminology, no.
Q. When you say you’re not sure in that terminology do I take it that words reflecting that have been said to you but in different words?
A. No, I recall that, that what my advice has been given that there’s two cases that will be, I don’t know, running in parallel with, maybe or along those lines.
Q. Your solicitors didn’t say to you, “Let’s wait to we see how the case goes before Justice Hallen because if you do, well, there you may not need to proceed with your damages claim”? Did they say that to you?
A. Well, not in those words, no.
Q. In what words did they say it to you, if at all?
A. They said that we still have the claim - two claims - going and that, that you were advised by - in writing of the subsequent - the, the compensation claim.
Q. Is it your intention in these proceedings to obtain as best you can from this Court compensation for the injuries you say you suffered at the hand of your brother, Stephen?
A. Well, this is not a compensation court, your Honour, that I’d see.
Q. What do you mean by it’s not a compensation court?
A. Well, I feel I’m here that I’m claiming for a part of an estate that I should have been entitled to and what I was promised.
Q. You say you were promised it?
A. That's right.
Q. By Stephen in the last days of his life, is that what you're saying?
A. And - well, not just the last days of his life. I was promised to be looked after for several years.
Q. Arising from, you say, the sexual assault he perpetrated on you. Correct?
A. The many, many sexual assaults he perpetrated on me. He had promised to look after me.
Q. So it's fair to say, isn't it, that these set of proceedings you intend to be the first way by which you're seeking indirectly to obtain compensation for the injuries you say you suffered at the hands of your brother?
A. No, I'm seeking what he made - promised, what he had promised, that he would be looking after me.
Q. You say he promised to pay you some money because of the injuries you suffered at his hands?
A. He promised to look after me.
Q. Because of, you say, the injuries you suffered at his hands?
A. Yes.
Q. You say this is the medium by which you can obtain of his fulfilment of his promise, is that correct?
A. I don't understand what you mean.
Q. You say your brother promised restitution, or compensation to you, don't you?
A. Yes.
Q. You say these are the proceedings, "in which I am seeking to fulfil"--
A. No, this is an Equity court.
Q. Mr Page, you said your brother promised you compensation. You said, didn't you that this was the way you were going to, through these proceedings, obtain fulfilment of that promise?
A. My brother promised to look after me.
Q. And this is the way you are seeking to--
A. I thought I was going to be looked after.
Q. And these proceedings are the way in which you are seeking to make good that promise, correct?
A. These proceedings are one way. I believe there's a second way, there's the parallel claimant that I was notified was going in, from the onset.
Q. Because you understood the promise to arise out of the injury you say you suffered at his hands, this is an indirect means by you of obtaining damages for sexual assault, and no more, isn't it?
A. No, I'm seeking what I believe I was entitled to, based on what Stephen had told me he was going to do, was to look after me.”
(My emphasis)

Until the conclusion of the second day of the hearing, there was no evidence given about whether the Statement of Claim had, in fact, been filed. No evidence was given at all in respect of the matters asserted by Warren’s counsel in response to the Court’s concern.
In an affidavit sworn on the second day of the hearing, purportedly in reply, and filed without objection at the end of that day, Warren gave the following evidence:

“4.    During the hearing of this matter on 15 August 2016, I was shown in cross examination, by the defendant’s Counsel, a copy of a draft Statement of Claim, sent by my solicitors to the defendant’s solicitors, under cover of letter dated 4 May 2016.
5.   I gave evidence that I believe that Claim for personal injury damages was currently “in motion”. I did not know definitively if the Statement of Claim had been filed in Court, but I understood that it was “running its course” and “running parallel” to these proceedings.
6.   Upon reflection, and after reminding myself of the advice that I have received from my solicitors, I understand now that I misunderstood the currents status of the personal injury claim.
7.   I recall now that I had been advised prior to my cross examination by my solicitors that it would be futile to seek to recover personal injury compensation from the Estate of my late brother Stephen Page (“the Estate”) because, based on the evidence filed in these proceedings, there is simply not sufficient funds to satisfy such a claim.
8.   I have never been advised that the Statement of Claim has been filed, nor have I instructed my solicitors to file it, nor had I even see it before it was shown to me in cross examination on 15 August 2016. I have not been advised at any time that the Claim has been filed, and I understand now that it has not.
9.   I understand that the value of the Estate (assets in NSW and Vanuatu) is approximately $431,387, and that the likely legal costs of the parties in this matter come to $346,505. I understand now that the Estate could not meet any claim for compensation I might make.
10.   In all the circumstances, including legal advice, I have no intention of commencing a claim for personal injury compensation against the Estate.”

Leave was granted to further cross-examine Warren on the contents of this affidavit on the third day of the hearing at T184.15 – T185.00:

“Q. So you say in this affidavit, “Nor had I ever seen it before it was shown to me in cross-examination on 15 August 2016.”
A. That particular, that particular letter, yes.
Q. But what you said in cross-examination was that you had previously seen the draft statement of claim. My question to you is, was the evidence you gave in the witness box incorrect because your affidavit now says that you had never seen it before?
A. I can only suggest that I was confused as to, given the numerous letters I’ve received and seen.
Q. Mr Page, with respect, Mr Wilson is asking you to focus not on the letter. At page 40 of the transcript, the letter and the statement of claim was provided to you.
A. Yes.
Q. Mr Wilson then said, “I’m asking you to look at it,” and he then said--
HIS HONOUR: I’m reading, gentlemen and Ms Clarke, transcript 40, line 5.
Q. “You’ve seen that statement of claim before, haven’t you?” Your answer was, “Yes.” What Mr Wilson is putting to you is that that answer appears to be inconsistent with paragraph 8 of your most recent affidavit in which you say, “Nor had I even seen it before it was shown to me in cross-examination.” Which is correct?
A. I was mistaken, I hadn’t seen it.
WILSON
Q. So the evidence you gave in the witness box was false?
A. I was mistaken.
Q. It was wrong.
A. Well, I don’t believe I was wrong. I’d seen so many letters with the similar letterheads. I was mistaken, I hadn’t seen that one.”

One can see from the passage quoted, that Warren was not prepared to come to grips with what was being asked about his knowledge of the draft Statement of Claim. Repeatedly, he returned to the letter under cover of which that draft Statement of Claim had been sent.
Senior counsel returned to the topic at T186 – T188:

“Q. When were you advised that it would be futile to seek to recover personal injury compensation?
A. Prior to these proceedings beginning.
Q. When?
A. I think last Wednesday, I believe.
Q. Last Wednesday?
A. Yeah, over the last couple of days, I was informed. I’ve just failed to recall it.
Q. It’s Wednesday now, so do I take it it was a week ago that you were told no point in going ahead with your personal injuries case?
A. I believe so, yeah.
Q. Did you receive a written advice to that effect from your solicitors?
A. I haven’t as yet, no.
Q. Did they write to you saying, “Mr Page, we advise you that having regard to the size of the estate, it’s no longer”--
A. No, I was verbally advised of that.
Q. Were you advised, however, that not to worry about that because you may well seek provision in this claim which will assist you with your compensation? Did your solicitor say that to you?
A. No, this is not about compensation.
…
Q. Having been advised a week ago not to proceed with your personal injuries compensation claim, did you say to your solicitors - did you give them instructions not to proceed with the person injuries compensation claim?
A. I agreed with their advice.
Q. Did you instruct them to inform the defendant in these proceedings that you were no longer seeking to proceed with the personal injuries compensation claim?
A. I agreed with their advice and advising to do what was necessary to be done.
Q. Did you do what was necessary to be done?
A. I would have, yes.
…
Q. So do we take it that you do not recall telling your solicitors to inform the defendant Mrs Page following your discussion with your solicitors last Wednesday that we’re now no longer proceeding with the personal injuries claim, all you need to deal with is the upcoming hearing before Justice Hallen? You didn’t give those instructions, did you?
A. I may have. I don’t recall but I would have said, “Do what needs to be done,” based on their advice, sir.
Q. Mr Page, you are in the witness box under oath. You have sworn to tell the truth and you can’t even remember a conversation you had with your solicitors last week. Did you give that instruction or did you not?
A. I believe I would have.
Q. Have you been told whether or not your solicitors informed Mrs Page that you no longer intended to proceed with the foreshadowed action for damages for sexual assault?
A. I was advised that there was nothing further going, going ahead with that.
Q. My question, Mr Page, and please listen to my question, did your solicitors advise you that they hadn’t told Mrs Page that you now no longer intended to proceed with the foreshadowed action for damages?
A. I don’t recall.”

There was no evidence by any solicitor corroborating Warren’s evidence on this topic. No letter of advice, or diary note, going to the matters identified in his last affidavit, was produced, which is somewhat surprising, bearing in mind the nature of the evidence, in cross-examination, given by Warren quoted above and what leading counsel stated shortly after the commencement of the hearing.
In my view, the affidavit sworn by Warren on the second day of the hearing is inconsistent with the evidence that he gave when first shown the letter and the draft Statement of Claim. I do not accept his explanation of forgetfulness. After all, he stated that he had only been given advice a few days before the commencement of the hearing.
Also, the date of the letter does not bear out what was asserted by Warren’s counsel. By 4 May 2016, the nature and value of the deceased’s actual estate was reasonably clear, even if Patricia’s costs of the proceedings were not. In any event, the form of the order for costs and how the costs of any proceedings would be paid could not be predicted with certainty.
Accepting his evidence that by the commencement of the hearing, Warren had been given, and had accepted, advice that civil proceedings should not be commenced to seek damages for alleged sexual abuse, there is no evidence that Patricia was ever informed, until the affidavit served on the second day of the hearing, that no other civil proceedings against the deceased’s estate were to be commenced.
Section 92(2) of the Probate and Administration Act 1898 (NSW), relevantly, provides that an executor who distributes the assets or any part of the assets of the estate of the deceased is not liable in respect of those assets or that part of those assets to any person who has a claim in respect of those assets or that part unless the executor had notice of the claim at the time of the distribution.
Clearly, Patricia had been given notice of Warren’s claim. Unless informed that the claim was not being pressed, she would not have been able to distribute the assets of the deceased without taking the risk of being personally liable in the event that the claim was made and was successful.
In my view, the failure to inform Patricia, following any advice given to, and accepted by, Warren, that the threatened civil proceedings would not be commenced, gives further cause to doubt Warren’s evidence on this topic.
Warren’s conduct, after the deceased’s death, regarding service of the proposed Statement of Claim and subsequently not informing Patricia that he did not intend to proceed (if that was his intention), leads me to conclude that he wished to put as much pressure as he could on Patricia to avoid what was likely to be embarrassing litigation for her and her children, so that she would provide him with funds.
There is another aspect of the evidence, which, in my view, goes to Warren’s conduct and does not reflect well on him.
Warren gave evidence that in about January 2014, he decided to confront the deceased, directly, in respect of the alleged abuse “and seek restitution and compensation for the abuse."
This was followed by different text messages sent by Warren to the deceased, the first of which was sent on 6 February 2014 and was in the following terms:

“Stephen you need to make sure you understand that our second meeting today was words direct from my lawyer and not mine and that i am extremely mindful of the impact this is having on you both especially Trish this IS NOT ABOUT GREED for me i had no idea that he was going to come out with that everything can be discussed i am not out to destroy your lives have some peace in your mind that that is just not me”

The second text message was sent on 6 March 2014 and was in the following terms:

"Stephen, I am very disappointed not having heard from you regarding these family matters. You were going to contact me on your return from Vanuatu on the 1st March but to date have failed to do so. I put off my original plan as I informed you, as it appeared to me that you were going away to consider your manner in which these issues were going to be resolved. It appears that it is of no real significance to you. My intentions are to speak to the Police and Department of prosecution on 30th March, and if I have not heard from you in the next few days I will be making this formally in any matter."

Warren was cross-examined on the second text message. After some prevarication, he admitted that his intention was that unless the deceased made good settling the claim out of court, Warren was going to speak to the police and “the Department of Prosecutions”. He added, in his oral evidence:

“It wasn't solely and wholly a financial answer that I was looking for. I was also seeking the names of other perpetrators which were his close friends, that he used to give me to.”

Warren denied that, in sending the text messages, his intention was to “blackmail” the deceased. He said at T50.47 – T51.03:

“I didn’t mention any financial amounts to Stephen. I was instructed clearly not to and I didn’t, I wasn’t seeking it. It was up to him to make the, the offer. That’s what I was instructed, clearly instructed to, to seek. And prior to making this statement I was also notified by my solicitor, if I may, your Honour, that the police would be suggesting that I was blackmailing him and I said, “Why would I be blackmailing him going through a solicitor?”

It is difficult to accept Warren’s attempt to justify his actions in sending the text messages to the deceased. There is no mention of wanting information in either text message. The import of each text message was a demand for money from the deceased, failing the satisfaction of which demand, Warren would take steps to inform the authorities of what was alleged to be the deceased’s criminal conduct.

The fact that he had sought advice on how best to frame the demand for money and that he was advised, so he said, by a solicitor, not to mention any amount, but leave to it to the deceased to do so, does not justify the sending of the threatening text messages. (No evidence from the solicitor who was said to have given that advice was called.)
In my view, the sending of these text messages was a deliberate demand for money, even if the amount demanded was not identified, and included a threat of the consequences if the demand was not met.
This aspect is important not only on the issue of Warren’s credit. It is also relevant to his conduct before the death of the deceased.
It is also relevant to the issue of “factors warranting the making of the application” in light of the decision of Master Macready in Boniadian v Boniadian; Beniation v Boniadian [2004] NSWSC 499, two claims for a family provision order, under the former Act, one by the widow, and the other by a daughter, of the deceased.
In that case, his Honour referred to evidence concerning the Plaintiff, Diana, which he accepted, about “a note to her mother in which she said that she wanted … her mother … to transfer $20,000 to her bank account and unless that happened she proposed to tell her relatives in the United States that Bob had molested her as a teenager”.
His Honour concluded at [66]-[68]:

“In my view, the sending of the letter was a deliberate attempt to blackmail her mother and the deceased in order to obtain funds. It is more particularly offensive in that the actions, which were to be exposed, were something, which the plaintiff herself did not regard as any “big deal”, and, indeed, on her own evidence, it was something which she had forgiven and allowed to go into the past.
Any such an attempt must have had a disastrous effect on the relationship between her mother and the deceased. It is clear that the deceased’s attitude was made plain immediately after his wife’s funeral.
In my view, this conduct is conduct disentitling the plaintiff to any form of relief under the Act. Accordingly, I find that there are no factors warranting the making of the application...”

Whilst there is no reference to “conduct disentitling” in the Act, as earlier stated, the conduct of an applicant, both before and after the deceased’s death, may be taken into account by the Court in considering Warren’s claim for relief.
Patricia was hardly cross-examined. No doubt, counsel for Warren considered the particular sensitivities of the case, but it was not suggested to her that her evidence, generally, did not accurately record what had occurred between the deceased and Warren in the months preceding the death of the deceased on the occasion she was present.
In her affidavit of 4 May 2015, Patricia had written:

“On 29 January 2014, I had a conversation with Stephen:
Stephen: “Warren is coming over to see me tomorrow. He reckons I sexually abused him when we were kids.’
…
I asked in reply: “What did you do?”
Stephen: “I put my penis between Warren’s bum cheeks when we were kids. It was kids mucking around...”
…
On 30 January 2014 at about 3.30pm, Warren came to our house at Terrigal and Stephen answered the door.
… I said to Warren:
“Steve told me everything last night, we have no secrets.”
Looking at me, Warren said:
“You are now living in the happiest place on earth. Are you doing to other children over there what you did to me?”
I said words to the effect of:
“Why don’t you ask Stephen? He’s standing there. Look into his eyes when he gives you the answer.”
Warren said:
“Are you over there molesting children?”
Stephen said:
“No, never.”
I said to Warren:
“Look at him, do you believe him?”
Warren said:
“I am 99.9%”
I said:
“Well I am telling you, there is no way that any of this has happened. We are always together.”
Warren then started to talk about the abuse he has suffered at the hands of Bill, the barber.
…
Warren then said to Stephen;
“This all started with you.”
Warren was crying as we said this. Stephen and I did not respond as we stood there listening.
Warren then said to Stephen:
“You’ve done this and you didn’t stop until I was 19.”
I said:
“Warren, Stephen couldn’t have. He was with me then.”
Stephan and I met when he was 24 on 6 July 1980. At that time Warren was 19.
Warren then glared at me and said:
“He was 19!”
I said,
“You just said you were 19.”
I looked at Steve who nodded his head in acknowledgement.
Warren said:
“I meant you (Stephen) were 19.”
I said:
“Oh, because Steve was with me when he was 24.”
Warren then became angry and went on to talk about the court case involving Bill and mentioned that it was in around 2000.
Warren said to Stephen:
“You said you would look after me?”
Stephen did not respond.
Warren then said to Stephen:
“I saved you. I kept your name and what you did from being told. I have kept this for so long, I was 17 Stephen!”
Warren also said that he was trying to track down one of the billets from the Westmead Boys Home who had abused him, however he had not been able to locate him yet.
…
Warren said:
“I am here to seek retribution… no I mean restitution, that’s the word. It’s like compensation for what I have been through and it started with you. You can look it up in the dictionary.”
… I said:
“What do you want?”
He said words to the effect of:
“I want restitution for what Stephen has done to me and caused my life to be. I am not saying how much, but you, Stephen, need to come up with an amount otherwise I will be taking this to the DPP. I have engaged a solicitor, his name is Bruce Jay. He lives at Saratoga and you need to liaise with him when you decide on an amount. If the number isn’t right I’ll be taking this further…”
…
After Warren left, Stephen sat at the dining room table and said nothing for a time. He then said:
“You are never going to look at me the same.”
I said:
“That’s not the case, don’t be silly.”
He said,
“Do you want me to leave?”
I said:
“No, why would I want you to leave? We will work this out.”

On this aspect of her evidence, she was cross-examined, and she gave the following evidence:

“Q…. I put it to you that in fact what Warren said to Stephen in your presence there at the time is:
"This is not all in my head, Stephen. I've been working on this for a long time and have been getting psychological help, putting pieces together. You sexually abused me for years and it was you that made me think of all the abuse that was happening to me by your mates' and Bill's abnormal behaviour. Just tell me the truth, this is real, it did happen to me, admit it."
And then he said, Stephen said in your presence, "Yes."

A. No, he did not.
Q. That’s not your recollection of what happened?
A. What Warren had said there, is that what you’re asking me? I’m saying that Stephen never acknowledged, no.
Q. I put it to you, madam, and not any criticism of you, this must have been a traumatic and terrible time for you to have to be part of this conversation, that your memory of it isn’t completely accurate, that you’ve forgotten things.
A. No, I don’t believe so.”

I accept the evidence of Patricia, where it conflicts with that of Warren, on the conversations between them at which she was present.
The evidence given by Patricia regarding what Warren had said to the deceased about wanting restitution for what the deceased had allegedly done to him and the threat to “take this to the DPP” goes to Warren’s conduct before the death of the deceased. To conclude by stating “when you decide on an amount. If the number isn’t right I’ll be taking this further” does not provide any justification for Warren’s threat.

Claim for Family Provision Order

I shall next discuss the statutory scheme and what I have described as general principles. I discussed these matters in Sadiq v NSW Trustee and Guardian [2015] NSWSC 716. Although the subject of an appeal (which was dismissed), the Court of Appeal did not determine that any part of what I had said on the principles was in error: Sadiq v NSW Trustee and Guardian [2016] NSWCA 62. (The application for special leave to the High Court was dismissed upon the basis that any appeal would not enjoy sufficient prospects of success to warrant a grant of special leave: Sadiq v NSW Trustee and Guardian [2016] HCASL 180.) For the benefit of the parties, I shall refer to part of what I set out in that case.
The key provision of the Act is s 59. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.
Relevantly, in this case, Warren relies upon s 57(1)(e) of the Act. I have earlier referred to the terms of the sub-section. The language of the relevant sub-section is expressive of the person’s status, as well as his, or her, relationship to the deceased. There is no age limit placed on an eligible person making an application.
In the case of an applicant who falls within 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)).
The applicant must also satisfy the Court that, at the time when the Court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made, relevantly, by the Will of the deceased (the operation of the intestacy rules being irrelevant in this case in relation to the deceased’s estate): s 59(1)(c). If he does so, the Court may make such order for provision out of the estate or notional estate of the deceased as it thinks ought to be made for the maintenance, education or advancement in life of the applicant, having regard to the facts known to the Court at the time the order is made.
I shall discuss the relevant principles first, in relation to each, and interpose, immediately after that discussion, my findings and conclusions based on the facts found.

Eligibility - Partly Dependent and Member of the Household

It can be seen, from the sub-section, that there are two limbs. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being “a member of the household of which the deceased person was a member”. Thus, an applicant cannot succeed except by virtue of a combination of status (membership of a household of which the deceased was a member) and actual dependency (whole or partial). Yet, household membership and dependency need not have occurred concurrently.
As stated, there is no dispute about the second limb. In this regard, the Act does not require that Warren, in order to qualify as “a member of the household” must have been living with the deceased at the date of his death. In addition, the Act does not specify a particular length of time during which the applicant must have been a member of the household of which the deceased was a member. All that is required is that such person be “at any particular time” a member of the household of which the deceased was a member.
The Act contains no definition of the words “dependent on”. There are no "tests" as such for the meaning of that term. It should be given its plain grammatical meaning.
In general, the word “dependent” connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his or her maintenance and support.
In Amaca Pty Ltd v Novek [2009] NSWCA 50; (2009) 9 DDCR 199, Campbell JA, with whom other members of the Court of Appeal agreed, wrote (in the context of a claim under section 15B of the Civil Liability Act 2002 (NSW)), at [45]:

“In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138:
Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of “dependants” does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a “dependant” is a member of the workers’ family who was “wholly or partly dependent for support upon the worker at the time of his death”. Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts’ Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.

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

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

In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347, it was said:

“The word ‘dependent’ is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that ‘“Dependent” in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed’. If the correct view were that the context of the statute requires a limitation of the word to ‘financial or material’ matters as McClelland J said in Re Fulop (dec’d) or to ‘other forms of dependence analogous to but distinct from financial dependence’ as Samuels JA suggested in Ball v Newey (at 491), then surely a mother’s services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period.”

The finding in Petrohilos v Hunter was that the plaintiff had been dependent upon her stepmother, in circumstances where, as a child, the plaintiff had lived with her father and stepmother. The stepmother "did all those things for the plaintiff that a mother in her circumstances does for a daughter from the age of five to the age of eighteen." As Campbell JA noted in Amaca Pty Ltd v Novek, at [41], "[t]hat case illustrates how a relationship of dependency can exist even when there is not the sort of obligation that a mother has to care for her own child".
In Williams v Legg (Court of Appeal (NSW), 16 March 1993, unrep), in a passage not set out in the report at 29 NSWLR 687, the Court of Appeal (Handley, Sheller and Cripps JJA) said:

“There has been a tendency in some cases to equate ‘dependent’ with ‘financially dependent’. In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 Hope JA, with whom the other members of the Court agreed, pointed out that while one of the commonest forms of dependence may be a financial one ‘in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things’ the word, as used in the statute, is not limited to financial dependence.”

In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word “partly” in the phrase “partly dependent”, whilst a word of “some elasticity”, does not mean “substantially”, but means “more than minimally”, or perhaps, “significantly”. Meagher JA commented that “[c]ommon sense requires that certain trivial activities should be disregarded”.
A similar view was taken by the Court of Appeal in Alexander v Jansson [2010] NSWCA 176 at [13]. At trial (Alexander v Jansson [2009] NSWSC 1000 at [27] – [30]), McLaughlin AsJ had written:

“The tasks which the Deceased performed for his mother, were many and varied, and are set out in paras 1 and 12 in Mrs Jansson’s affidavit of 5 June 2008 and in paras 6–10 in her affidavit of 25 June 2008. Those instances of dependency included supervision, maintenance and physical activities involved in the partnership conducted by Mrs Jansson and the Deceased in the business of Hereford breeding and livestock grazing; sale of cattle; Mrs Jansson and her son maintained a joint account with the Rural Bank (later State Bank) at Tamworth, conducted in their joint names, into which moneys from the sale of cattle were deposited, and from which household and property expenses were paid. Mrs Jansson said that she relied on the income from the sale of cattle by the Deceased in order to make ends meet on the property.
Mrs Jansson said that the Deceased carried out most of the physical activities relating to the cattle, the sheep, the maintenance and use of machinery, the sale of livestock, farming work (for example, driving a tractor, sowing crops, spreading superphosphate). She said that without the Deceased performing that work, she would not have been able to carry on the business. She said that the Deceased also performed for her such domestic work as: chopping and stacking firewood, mowing the lawn, maintaining the house by cleaning out gutters, frequently cooking, purchasing groceries and performing other shopping for Mrs Jansson; as well as driving her to appointments in town, since she did not hold a driver’s licence.

In short, Mrs Jansson from her late middle age into her old age was very reliant and dependent upon the Deceased in the practical aspects of her everyday life, as well as being physically and practically dependant upon him in the conduct of their partnership business.
I am satisfied that Mrs Jansson was dependent upon the Deceased in respect to the foregoing matters of personal assistance, and, further, that she was dependent upon him in relation to the earning of partnership income, and the upkeep of the rural property. I am satisfied that Mrs Jansson was at least partly dependent upon the Deceased from the period after her husband’s death in 1970 and especially during the period from 1980 until 2002 (a period when Mrs Jansson was aged from 65–87).”

On appeal, Brereton J, with whom Basten JA and Handley AJA agreed, wrote, at [13]:

“For my part, I would be inclined to accept that one co-owner of property is not necessarily to be regarded as dependent on the other co-owner for accommodation, since each has a right to occupy the property; nor that one partner in a partnership is to be regarded as dependent upon another just because it is the other who does the work or labour; nor that an aged parent is necessarily to be regarded as dependent upon a child who provides occasional domestic assistance: I accept that “partly dependent” involves more than “minimal” dependence [McKenzie v Baddeley [1991] NSWCA 197...”

In Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [109], Meagher JA wrote that dependency “in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters”, and at [110], that it “may exist, irrespective of whether the dependent person is financially or physically able to support himself or herself”.
In Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 at [42], Palmer J wrote:

“Dependence for the purpose of s 6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance.”

In Bayssari v Bazouni [2014] NSWSC 910 at [53], Ball J put the matter this way:

“Dependency seems to me to involve a degree of reliance so that, if the material support giving rise to the dependency is withdrawn, the dependent person will face some difficulties in providing that support for himself or herself, either by reason of some physical, financial or emotional limitation or attribute.”

The question of dependency, whether whole or partial, is a complex question of fact: Aafjes v Kearney [1976] HCA 5; (1976) 180 CLR 199. It is not to be determined upon theoretical considerations. It is "the actual fact of dependence or reliance on the earnings of another for support that is the test": per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177 at 189.
In Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536 at [140], Slattery J wrote:

"Dependency can be satisfied even where only part of the claimed dependent's needs are being met by a person on whom the dependence is said to exist.”

As Macready AsJ noted in Dunn v McCarthy [2010] NSWSC 675 at [29], “[w]ith young children dependency becomes complex”. However, that was in the context of an adult who was not the parent of the young children.

The Evidence going to Eligibility

There is a dispute about some of the matters to which I shall next refer. What is set out are the findings of the Court.
In April 1969, the deceased went to St Vincent’s Boys' Home at Westmead. The precise circumstances of the deceased’s placement at the St Vincent’s Boys Home were not fully disclosed in the evidence. Yvonne gave evidence that it was a mutual decision of her and of the deceased.
In the “Declaration by Parent or Guardian” signed by Yvonne, seeking the deceased’s admission to the St Vincent’s Boy’s Home, the following passages appear:

“I hereby undertake to leave such boy in the care and control of the Brother Director of the Home until the boy attains the age of fifteen years unless suitable accommodation, home surroundings and opportunities approved by the Home Committee of St. Vincent’s Boys’ Home and the Brother Director, are available for him.
I realise that a condition of the boy’s admissions to the Home is that all holiday periods will be spent at such place or places as are decided by the Brother Director in his absolute discretion. The times for visiting the Home have been explained to me and I am aware that the Brother Director has full power to refuse visitation at any time. I agree to abide by the decisions of the Home in taking any course of action which is deemed by the Home to be in the best interests of the boy.”

The deceased remained a boarder there between April 1969 and about October 1972.
There is a dispute about how regularly the deceased returned home in those three years, but the evidence overall, despite the paragraph above regarding the absolute discretion of the Brother Director of the St Vincent’s Boys Home, suggests that it was on some weekends and during school holidays. I do not think that much turns on this dispute because there is no suggestion that during the period until October 1972, Yvonne was not at home other than for short periods when she was at work.
Yvonne, during the period 1966 to about 1971, worked at Grace Bros, 1.5 days per week (on Thursday until 5:00 p.m. and on Saturday morning). She was sometimes called in to do extra hours if somebody was sick. There is no suggestion that she worked at night during this period.
In about 1971, Yvonne started to work at a second job. It was usually on a Sunday night, but usually, on the way to work, she would take the deceased back to school. He was away from home between late Sunday afternoon and usually Friday afternoon.
The deceased commenced a Food Technology Diploma Course (Trade Cookery) at Hawkesbury Agricultural College in about 1973. In January 1974, he commenced working at The 729 Club at St Leonards. In addition to his full time work, there is evidence that whilst working, and until July 1975, he worked 317 overtime hours. In about June 1975, he commenced working a 40 hour week at Grace Bros, Chatswood.
As to holidays, there is evidence that at the funeral of his grandmother, the deceased had said “All of us grandchildren spent holidays with Nanna Grandma and John at Chatswood. We had to share the valued time amongst the six of us…”. It was not suggested by Warren that this statement was not accurate as to at least how he spent part of the holidays.
In addition, Yvonne gave evidence that she would take all of the children up to the Entrance for about two weeks, in some of the holidays, and that she would be there with them.
I am satisfied that, relevantly, the deceased and Warren were members of the same household until at least 1972, and perhaps longer, although the deceased may not have been living at home for all of the time after late 1972. (This does not mean, however, that he was not part of the household.) However, there is no suggestion that they were members of the same household at any time after about 1979.
There is no suggestion that Warren was wholly, or partly, financially dependent upon the deceased then, or any time thereafter. Nor did Warren suggest that he regarded himself as financially dependent on the deceased at any time. Nor did he seek, or require, any financial assistance from the deceased at any time when each was an adult, other than in the conversations to which reference has been made.
Thus, the only alternative if Warren is to establish eligibility, then, is for Warren to establish that there was another “form of dependence analogous to, but distinct from, financial dependence".
In regard to the other form of dependence, far more time than was necessary was spent on the assertion that the deceased “was in charge of” the children who were younger than him at times when their mother, Yvonne, was not present.
There is evidence that when Yvonne was not at home, and the deceased was there, the deceased ensured the home was secure at night; that Warren and the other siblings left home in time for school; that household chores were completed by the sibling responsible; he prepared and served some meals; that he supervised homework and play periods, that the other children were in bed at a reasonable hour, and ready for school each day. It appears that Yvonne had requested the deceased to undertake this role when the deceased was about 15 years of age (after April 1971).
On this topic, the following evidence, given by Yvonne, at T126.04 – T127.30 seems likely to be the most reliable in relation to the period prior to 1973:

“Q. I just want to make sure that I understand your evidence. As I understand your evidence, it seems clear that Stephen was in boarding school between April 1969 and about October 1973.
A. That's of 72, wasn't it?
Q. 72, I'm sorry, thank you. In 1973 it's clear that he started his TAFE course and he was doing a chefs' course at TAFE. Do I take it that during this period of time whilst he was doing the course, he was also working part time?
A. Part time, yes.
Q. Do you recollect how regularly he worked?
A. Yeah. He was, if I remember correctly, your Honour, he was working at Grace Bros. Those, all my children did when they turned 15.
Q. And do you recollect the hours of his work?
A. Yeah. His hours would have been the same as mine, from 9.00 till 5.30 and 9.00 till 12.00 on Saturday.
Q. And was that the same days that you worked?
A. Yes.
Q. And that was after 1973?
A. Yeah.
Q. Now, as I understood your evidence, that after the second half of 1973 he maintained his bedroom at your home?
A. Yes.
Q. But he came and went?
A. Yes. He, he went to Lord Howe. I think he was there for, only ended up being there for a couple of weeks and then came home again, and that's what happened.
Q. Apart from going away to work, such as Lord Howe Island and on the cruise, I gathered from your evidence that there were also occasions when he lived or stayed - according to your evidence - at the home of friends?
A. Yes. Like kids do.
Q. Do I take it that from this point in time, he didn't ask your permission to come and go. He basically came and went as he pleased?
A. He would give me the courtesy of telling me what, asking me what was going to happen, but yeah.
Q. Was that like most normal teenagers--
A. Yeah.
Q. He'd tell you where he was going perhaps?
A. Yes.
Q. But really, not asking your permission to go, is that about right?
A. Yeah, well I guess, yeah I guess.
Q. I gathered from your evidence that the principal role that he played was making sure that they did their chores?
A. Yes.
Q. They were chores, were they, that you set for them?
A. Yes.
Q. In terms of making sure they went to bed on time, the times that they went to bed were times that you regulated?
A. Yes.
Q. To the extent that he did those things - am I right in understanding that he did those things when you were not there?
A. Yes.
Q. Because when you were there, you were the person who was, as the mother, responsible for the children and in charge of them?
A. Yes.
Q. I think you said that it was when he was home that he would help look after the children?
A. Yes.
Q. When you were not there?
A. Yes.”

This is not a case where Warren, as a child, was entrusted, on a day to day basis, to the deceased’s care during the period referred to. Nor is it one where the deceased could be regarded as having been in loco parentis.
I do not accept the evidence of Warren, Lyle, or of Yvonne, that the deceased continued in this role after about late 1973, to any great extent. In early 1974, he commenced full time work as well as doing some overtime. He was described by his brother, Rodney, as a teenager with “a busy social life”. The likelihood is that he spent less and less time at home with his mother and his siblings.
Thus, in my view, the opportunity for him to perform the tasks that he had performed when he was not at school but living at home, would have diminished over time for these reasons and because each of his siblings was also growing up.
I am also not satisfied that the deceased continued to play any role which could be described as him “being in charge” in relation to Warren after about late 1973. Even before then, it was limited to the occasions when Yvonne was not present.
Whilst a person may be dependent upon another whether or not there is a co-existing legal duty, the existence of such a duty is one of the many elements to be taken into account in deciding upon the factual question of dependency Middleton v Kiama District Hospital [1970] 3 NSWR 136 at 138; Bayssari v Bazouni at [37] (Ball J).
It was not submitted that there was any legal duty upon the deceased to maintain Warren at any time. His mother, Yvonne, may have asked the deceased to assist her, but it is unlikely that Warren was dependent upon the deceased to play the role of surrogate parent. It is hardly the case that Yvonne abrogated her parental responsibility to the deceased.
Nor do I accept that Warren, as a child, could not survive without what the deceased is said to have done, as a result of Yvonne’s request, or that if the services provided by the deceased had been withdrawn, Warren would have had difficulty undertaking the tasks himself by reason of his age or otherwise.
Nor is there any evidence that satisfies me that Warren “needed” what was said to have been provided by the deceased, in the sense that it was necessary for his well-being. In my view, Warren’s needs to be fed, cared for, and accommodated were all provided by Yvonne, not by the deceased.
I think it is far more likely that it was Yvonne who depended upon the deceased to ensure that her directions, whether to complete chores, get ready for school, to make dinner and the like, were performed by her other children.
There is only one piece of evidence that Warren “relied upon” the deceased. At T66.17 – T66.21, in cross-examination, he gave this evidence:

“Q. You were not dependent upon him in the sense of looking - to a person you looked to for support and guidance. You were scared of him.
A. No, I needed his - no, I loved him too. Our, our - what a contrary. I loved him as well. I looked up to him for advice, and not knowing what was – what - the things that I was doing at his hand, thinking it was normal.”

There was no evidence of the nature of the support, or the guidance, said to have been provided in re-examination. None had been provided in Warren’s affidavits.
I do not accept Warren’s evidence, in this regard, as reliable. There is simply nothing in the evidence to corroborate this one assertion. The evidence overall does not suggest that Warren relied upon the deceased for any measure of emotional support or guidance. To the contrary, I accept this part of the history provided by Warren to Dr Jungfer, being that he was “never close to” the deceased.
In all the circumstances, Warren has not established, to my satisfaction, that he is an eligible person within s 57(1)(e) of the Act. It follows that the proceedings must be dismissed.

Factors Warranting the Making of the Application

Having regard to the conclusion I have reached on eligibility, this question does not strictly arise. However, I should say something about this aspect.
The Act does not specify the “factors which warrant the making of the application”. As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138 at [16], “[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement”.
Factors warranting the making of the application were described by McLelland J (as his Honour then was), in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 as being:

“… [F]actors 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 a deceased.”

In Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA, at 252, after setting out and approving the statement, added:

“To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition.”

These principles have been applied, at first instance, for many years. However, in Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal in which Fitzgerald AJA delivered the principal judgment, there seems to be the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian.
In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686 at [9]:

“In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors (‘there are factors’) is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination.”

More recently, in Diver v Neal [2009] NSWCA 54, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1), at [8]:

“As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to ‘proceed with the determination of the application’. In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are ‘regarded as natural objects of testamentary recognition’, whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681.”

In Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, wrote, at [62]-[64]:

“It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope.

However, the intended result of the wide nature of para (d) of the definition of “eligible person” and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition.
On s 9, the decision of M McLelland J in Re Fulop (dec’d) (1987) 8 NSWLR 679 has stood the test of time.”

In Sassoon v Rose [2013] NSWCA 220 at [15], the Court of Appeal referred to the fact that the trial Judge (Macready AsJ) had:

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

In Porthouse v Bridge, Bryson AJ commented, at [7] and [9]:

“This provision gives no clear indication of the nature of the factors which should be regarded as warranting the making of the application. Decision whether there are factors which warrant the making of the application is committed to the Court in extremely general language; the Court is to have regard to all the circumstances of the case (whether past or present). The effect is that a very broad power is given to the judge who hears the case to recognize and assess the significance of the circumstances of the case and what regard should be paid to them, what the factors are and what they warrant. There may be very cogent factors which demonstrate that the making of the application is warranted, but it is unlikely that this will often be the case, and the section commits to the Court a power of determination which is difficult to distinguish from a discretion of the broadest kind.
…
The recognition of factors and their weight is left to the determination and opinion of the Judge. In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors (“there are factors”) is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination.”

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

“The primary category of eligible people are spouses, including those in a de facto relationship with the deceased at the time of death and a child of the deceased. Other eligible persons (a category including the claimant) are required to satisfy the court that ‘having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application’: s 59(1)(b). The claimant must also satisfy the court that at the time when the court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made by the will of the deceased: s 59(1)(c).
Subsection (1)(c) assumes that some provision should have been made for the claimant by the will of the deceased; subs (1)(b) treats the primary category of eligible persons as naturally satisfying that assumption, whereas the secondary category (into which the present claimant falls) need to justify the assumption: see, in relation to relevantly identical provisions in s 9 of the Family Provision Act 1982 (NSW), Re Fulop Deceased; Fulop v Public Trustee (1987) 8 NSWLR 679 at 681 (McLelland J).
That approach obtains support from the provisions of Ch 4 of the Succession Act dealing with intestacy. Those primarily entitled to a distribution from the estate of an intestate are a surviving spouse (ss 110-113) and the deceased’s children (s 127). A grandchild has an entitlement, but only a presumptive share of a child of the intestate who predeceased his or her parent: s 127(4).”

Finally, I refer to Yee v Yee [2016] NSWSC 360 at [199] – [200], in which Slattery J wrote, after referring to the authorities:

“It seems to me looking at the development of this line of authority and especially what the Court of Appeal said in Evans v Levy, that the aspect of prospects of success, mentioned in Brown v Faggoter as a possible factor warranting, cannot be a decisive factor on its own. The authorities do not suggest that the applicant’s prospects of success cannot be taken into account as a factor warranting. This seems to be self-evident from the reasoning of McLelland J in Re Fulop and from Churton v Christian, which both show that there must often be a substantial degree of overlap in practice between (1) the factors warranting, and (2) those matters which must be addressed in determining whether the testator has made adequate provision for the applicant.
In Diver v Neal [2009] NSWCA 54, Basten JA (with whom Allsop P and Ipp JA agreed) said that where factors warranting were to be proved, “each issue to be determined involved identification of the relationship over the course of their lives”.

It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Young JA and Slattery J as correct, and propose, in the circumstances, to follow their decisions.

Factors relied upon by Warren

Even though I have determined that Warren is not an eligible person, I shall, for completeness, turn next to whether there are factors warranting the making of his application. In this regard, the Court must consider whether “factors” exist which, when added to the facts which render the applicant an “eligible person”, give him the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition.
Warren relied upon the 2009 Will as demonstrating that he was a natural object of testamentary bounty. It is true that the deceased mentioned his siblings, including Warren, as objects of testamentary recognition in the 2009 Will. However, that was in the context of Patricia and each of their three children not surviving, and each having no issue that survived. This does not suggest that the deceased had Warren, or his other siblings, in strong contemplation as a person who he considered should be the recipient of his benefaction. In any event, the 2009 Will was revoked by the last Will of the deceased. In my view, that he was named as a substitute beneficiary in the 2009 Will is not a factor warranting the making of Warren’s application.
Next, the following matters (which I have numbered) were identified in his Counsels’ submissions:

“(i)   The Plaintiff remained silent on the deceased’s abuse for 14 years.
(ii)   At the trial in 2000 he requested the police not to charge the deceased and despite gaining greater recall over the years did not report the deceased to the ODPP or the police.
(iii)   His mother, a widow with 6 young children, placed the deceased in a position of trust and responsibility.
(iv)   The deceased abused his mother’s trust and interfered with a minor; as a minor and as an adult.
(v)   In doing so the deceased caused the Plaintiff deliberate harm (sexual abuse).
(vi)   Through his actions, the deceased destroyed the safe sanctuary within the home environment that the Plaintiff was entitled to.
(vii)   The Plaintiff’s childhood was significantly impacted by the deceased choices and actions.
(viii)   The deceased, in choosing to undertake the actions that he did, interfered without the Plaintiff’s permission in the life of the Plaintiff, causing permanent damage to the Plaintiff. In doing so, the deceased enlivened a moral responsibility for the consequences of his actions.
(ix)   The harm caused ongoing damage and consequences, and on the evidence, has contributed to the Plaintiff’s chronic posttraumatic stress disability.  
(x)   The deceased acknowledged to the Plaintiff and to his mother, that he caused harm to the Plaintiff.  
(xi)   The deceased promised the Plaintiff to look after him and provide him with monetary assistance for his financial needs.  
(xii)   The Plaintiff accepted the promise.  
(xiii)   The deceased did not honour his promise at a time when he was in a position to do so financially.”

These matters, even if they were regarded as having occurred, speak more to damages and compensation, than to factors warranting the making of an application for a family provision order. To the extent that they do, there would be a real question about the effects attributed to the deceased’s alleged conduct when taken in the context of Mr Brilliante’s established conduct.
Warren’s counsel relied upon the alleged sexual assaults as a factor warranting the making of the application. In my view, and as a general principle, they are not factors that would lead to a perpetrator determining that some provision should be made for the victim out of his or her estate.
To the extent that particulars (xi), (xii) and (xiii), are relevant to “factors warranting the making of the application”, I am not satisfied that the deceased made any promise to Warren to provide him with monetary assistance for his financial needs.
Even if I am wrong and there were conversations in which the deceased mentioned “providing for” Warren, the context of the conversations seemed to be to avoid publicity, perhaps criminal charges that might be laid, and the hurt that would be inflicted upon members of the deceased’s family. The conversations do not establish, to my mind, a factor warranting the making of the application for a family provision order.
When one considers this question according to community standards, I am of the view that Warren, as the brother of the deceased, has not established such factors. The blood relationship, in circumstances where there are blood relatives who are closer to the deceased, is not a factor.
Approaching the matter this way obtains some support from the provisions of Ch 4 of the Act dealing with intestacy. On intestacy, the siblings of an intestate are entitled to the whole of the intestate estate only if the intestate leaves no spouse, no issue, and no parent surviving: s 128 of the Act. The Act, itself, seems to suggest that a sibling, only in certain circumstances, which do not exist in the present case, is regarded as a natural object of testamentary recognition.
Having considered all of the evidence, I am not satisfied, for the purpose of section 59(1)(b) of the Act, that there are factors which warrant the making of Warren’s application.
Since I am not satisfied that Warren is an eligible person, and, also, that having regard to all the circumstances of the case (whether past or present) there are no factors which warrant the making of the application, the Court is not able to make an order for provision.
In the circumstances, it is unnecessary to deal with whether the provision made for Warren in the Will of the deceased is inadequate.
The Summons must be dismissed and I so order.
In view of the request of the parties that the question of costs be determined following these reasons being published, I order that any argument as to the costs of the proceedings and how those costs are to be borne, be listed on a date to be arranged when these reasons are published.
I also order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.

**********

Decision last updated: 06 September 2016

Medium Neutral Citation:	Page v Page [2016] NSWSC 1218
Hearing dates:	15, 16 and 17 August 2016
Date of orders:	06 September 2016
Decision date:	06 September 2016
Jurisdiction:	Equity
Before:	Hallen J
Decision:	Orders that the Plaintiff’s Summons be dismissed. Orders that any argument as to the costs of the proceeding be listed on a date to be arranged when these reasons are published. The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiff, the brother of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the widow of the deceased and the executrix appointed under the Will to whom Probate granted – No provision for the Plaintiff made in deceased’s Will – Small actual estate in NSW and in Vanuatu – No competing financial claimants although widow and her children are beneficiaries named in the Will – Allegation of sexual abuse by deceased of the Plaintiff when members of the same household – Conduct of the deceased towards the Plaintiff - Whether the Plaintiff an eligible person - Whether wholly or partly dependant on the deceased – Whether factors warranting the making of the Plaintiff’s application – Unnecessary to decide whether adequate and proper provision not made in Will of the deceased for the Plaintiff because Court not satisfied that Plaintiff is an eligible person or that there are factors warranting the making of his application.
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Court (Suppression and Non-Publication Orders) Act 2010 (NSW) Evidence Act 1995 (NSW) Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW)
Cases Cited:	Aafjes v Kearney [1976] HCA 5; (1976) 180 CLR 199 Alexander v Jansson [2009] NSWSC 1000 Alexander v Jansson [2010] NSWCA 176 Amaca Pty Ltd v Novek [2009] NSWCA 50 Bayssari v Bazouni [2014] NSWSC 910 Broadcasting Corporation (NZ) v Attorney-General [1982] 1 NZLR 120 Brown v Faggoter [1998] NSWCA 44 Chan v Chan [2016] NSWCA 222 Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646 Chen v Lu [2014] NSWSC 1053 Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 Diver v Neal [2009] NSWCA 54 Dunn v McCarthy [2010] NSWSC 675 Boniadian v Boniadian; Beniation v Boniadian [2004] NSWSC 499 Evans v Levy [2011] NSWCA 125 Fallow v Mullins [2012] NSWSC 406 Global Torch Ltd v Apex Global Management Ltd [2013] EWHC 223 Hume v The Council of the Kings School [2010] NSWSC 186 John Fairfax & Sons Ltd v Police Tribunal (1986) 5 NSWLR 465 Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178 Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536 JX MX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96; [2015] 1 WLR 3647 Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177 McKenzie v Baddeley [1991] NSWCA 197 Middleton v Kiama District Hospital [1970] 3 NSWR 136 O'Shane v Burwood Local Court (NSW) [2007] NSWSC 1300 Penfold v Perpetual Trustee [2002] NSWSC 648 Petrohilos v Hunter (1991) 25 NSWLR 343 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 R (N) v Mental Health Review Tribunal [2006] QB 468 Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 Re Fulop Deceased (1987) 8 NSWLR 679 Rinehart v Welker [2011] NSWCA 403 Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 Sadiq v NSW Trustee and Guardian [2016] NSWCA 62 Sadiq v NSW Trustee and Guardian [2016] HCASL 180 Sassoon v Rose [2013] NSWCA 220 Scott v Scott [1913] AC 417 Skinner v Frappell [2008] NSWCA 296 Stojanovski v Stojovski [2016] NSWSC 976 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Wilcox v Wilcox [2012] NSWSC 1138 Williams v Legg (Court of Appeal (NSW), 16 March 1993, unrep) Williamson v Williamson [2011] NSWSC 228 Yee v Yee [2016] NSWSC 360
Texts Cited:	Professor G E Dal Pont, Law of Costs, (3rd ed 2013, LexisNexis)
Category:	Principal judgment
Parties:	Mr Warren Page (Plaintiff) Ms Patricia Page (Defendant)
Representation:	Counsel: Mr K Morrissey and Ms L Clarke (Plaintiff) Mr R Wilson SC and Mr P Bolster (Defendant) Solicitors: Turner Freeman (Plaintiff) Frank Legal (Defendant)
File Number(s):	2015/56283