Family provision order made. Suppression orders made.
Catchwords:
SUCCESSION — Family provision — Deceased survived by both a partner who claimed to be eligible as a de facto spouse and a minor daughter from his first marriage which ended by divorce — Allegations of sexual assault made by the deceased’s daughter — Deceased charged with offences and was the subject of a criminal trial in which he denied the claims — Jury retired at the conclusion of evidence, were unable to return a verdict and overnight the deceased died by suicide — Deceased by his Will appointed his mother, the first defendant, as executrix and left the entirety of his estate to his daughter — Provision sought by the plaintiff essentially to cover accommodation and associated costs — Provision of $1.175 million made — The precise source of the funds to be discussed by the parties, and if not agreed, to be the subject of further submissions
SUCCESSION — Family provision — Carriage order — Earlier interlocutory order made for joinder of daughter by her tutor as second defendant to the proceedings, reserving costs of the joinder and directing the daughter (by her tutor) to have the conduct of the defence of the proceedings to the intent that the executrix first defendant would play a submitting role — Issue regarding costs of first defendant — First defendant’s costs to be paid on the indemnity basis subject to leave to the other parties seeking to have the Court order otherwise
SUCCESSION — Family provision — Sexual assault and abuse allegations — If there is a serious allegation of fact which is relevant to or materially bears upon a real issue in the proceedings, prima facie it ought to be determined (unless it is conceded or the parties are agreeable for the Court to proceed on a certain basis) — Submission based on Page v Page [2016] NSWSC 1218 and Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727 that sexual assault allegations should not generally be determined in family provision proceedings rejected — Those decisions discussed and explained — Reliance by second defendant on those allegations in defending against the plaintiff’s claim for provision — Determination that a finding ought to be made regarding the sexual assault allegations — Held that sexual assault was not established on the balance of probabilities
CIVIL PROCEDURE — Hearings — Suppression and non-publication orders — Prohibition on publication of any matter which identifies or is likely to lead to the identification of a complainant in prescribed sexual offence proceedings under s 578A Crimes Act 1900 (NSW) — Whether suppression order should be made on the basis that it is otherwise necessary to prevent prejudice to the proper administration of justice pursuant to s 8(1)(a) Court Suppression and…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
SAP v SAD1 [2025] NSWSC 138
Case
[2025] NSWSC 138
Decision Date
CaseChat Overview and Summary
The deceased, who had been charged with sexual assault against his daughter, died by suicide before the conclusion of his criminal trial. His daughter, along with a de facto spouse, sought family provision from his estate, which he had left entirely to his daughter. The de facto spouse, who had been appointed as the executrix, challenged the validity of the will and the appropriateness of the bequest. The court had to decide whether the de facto spouse was eligible for family provision, whether the allegations of sexual assault should be determined in the family provision proceedings, and if a suppression order should be made to prevent publication of certain details.
The court found that the de facto spouse was not eligible for family provision under the Succession Act 2006 (NSW). The court rejected the argument that sexual assault allegations should generally not be determined in family provision proceedings, holding that a finding on the allegations was necessary. The court found that the sexual assault was not established on the balance of probabilities. The court also considered the need for a suppression order under the Court Suppression and Non-publication Orders Act 2010 (NSW) to prevent publication of identifying details of the complainant in the sexual offence proceedings, and held that such an order was necessary to prevent prejudice to the proper administration of justice.
The court made an order for family provision of $1.175 million, with the source of the funds to be discussed by the parties. The executrix's costs were to be paid on the indemnity basis, subject to leave for other parties to seek a different order. The court also made a suppression order in relation to the reasons for judgment and the proceedings, suppressing names of the parties and other identifying details of the complainant.