SAP v SAD1

[2025] NSWSC 138

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SAP v SAD1 [2025] NSWSC 138

Hearing dates:

26 August 2024

Date of orders:

4 March 2025

Decision date:

04 March 2025

Jurisdiction:

Equity

Before:

Meek J

Decision:

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 Non-publication Orders Act 2010 (NSW) (CSNPO Act) — Held that a suppression order is necessary pursuant to s 8(1)(a) CSNPO Act such that the reasons for judgment should be restricted and proceedings suppressed generally including suppressing names of the parties

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW)

Criminal Procedure Act1986 (NSW)

Evidence Act1995 (NSW)

Interpretation Act1987 (NSW)

Succession Act2006 (NSW)

Cases Cited:

Alexander v Jansson [2010] NSWCA 176; (2010) 6 ASTLR 432

Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317

Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd [2017] NSWCA 184; (2017) 106 ATR 151

El Sayed v El Hawach (2015) 88 NSWLR 214; [2015] NSWCA 26

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857; (2023) 414 ALR 635

Le v Angius; Angius v Angius [2024] NSWSC 924

Lim v Lim [2023] NSWCA 84

Litchfield v Smith [2010] VSC 466

McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82

Pagev Page [2016] NSWSC 1218

Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331

Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; [1968] HCA 62

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Public Trustee v Bellotti (1986) 4 BPR 9196

Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69

Rejfek v McElroy (1965) 112 CLR 517; [1965] HCA 46

Sarant v Sarant [2020] NSWSC 1686

Sgro v Thompson [2017] NSWCA 326

Shymko v Lach [2022] NSWSC 1096

State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228

Tarbes v Taleb [2023] NSWSC 565

Terunnanse v Terunnanse [1968] AC 1086

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11

Williamson v Williamson [2011] NSWSC 228

Category:

Principal judgment

Parties:

SAP (Plaintiff)
SAD1 (First Defendant)
SAD2 (Second Defendant)

Representation:

Counsel:
S Chapple SC with D Yazdani (Plaintiff)
H Morrison (First Defendant)
L Ellison SC with O Bellhouse-Smith (Second Defendant)

Solicitors:
Alison Butler Law (Plaintiff)
Somerville Legal (First Defendant)
Farrell Lusher Solicitors (Second Defendant)

File Number(s):

2023/146984

Publication restriction:

This judgment was initially restricted. As of 12 September 2025, it has been published with certain redactions and adoption of pseudonyms.

JUDGMENT

Introduction

1. HIS HONOUR: These proceedings are a family provision claim relating to the estate of the late [ABC] ^[1] (deceased) who was born in [redacted] and died [redacted]. The deceased, who worked as an operator in mines, ^[2] was survived by: SAP (plaintiff) who claims to be his de facto spouse (born in [redacted]); SAD1, being the deceased’s mother (also first defendant or executrix); SAD2, being the deceased's only child (second defendant), born in [redacted]; the tutor for SAD2, her mother [(Q)] who was previously married to the deceased but divorced from him in [redacted]; and his two brothers [W] and [B].

   1. I will refer to all parties by their pseudonyms.

   2. Court Book (CB) 18[16], 86[8].

2. SAP’s mother (plaintiff's mother or [V]) was born in [redacted] 1951 and is now aged 73. She lives with the plaintiff and she is not married or in a de facto relationship.

3. The deceased left a Will dated 3 August 2017 by which he appointed his mother as executrix and left the whole of his estate to SAD2 upon attaining the age of 21 years. The parties did not contend other than that the gift in clause 3 of the Will is a gift that is vested in SAD2’s interest: T 9.1-.3. Probate of the Will was granted to the first defendant on [redacted], who has carried out administration tasks, subject to some matters I will come to.

4. On the hearing of the proceedings, Dr Chapple SC appeared with Mr Yazdani for the plaintiff, Mr Morrison appeared for the first defendant, and Mr Ellison SC appeared with Mr Bellhouse-Smith for SAD2 as second defendant.

5. I will cite the evidence in the proceedings by reference to the Court Book (CB), transcript pages (T) and exhibit numbers. Each set of counsel provided written opening outlines of submissions which were relevantly incorporated into the Court Book (see tabs 53-55). Following the cross-examination of the plaintiff, Dr Chapple SC and Mr Ellison SC made final submissions orally.

Preliminary matters

6. The proceedings were commenced by summons filed on 8 May 2023 within time.

Carriage order

7. On 18 August 2023, I was informed that the parties had a settlement conference which was unsuccessful and that there was an issue regarding the joinder of SAD2 in her capacity as beneficiary as a second defendant in the proceedings and the foreshadowing of some expert evidence.

8. On that occasion I made orders joining SAD2 by her tutor as second defendant to the proceedings, directing that the costs of the joinder be reserved and further directing, at the request of the parties, that SAD2 (by her tutor) have the conduct of the defence of the proceedings to the intent that the first defendant would play a submitting role. That order has been described as a “carriage order”. ^[3]

   3. First Defendant’s Outline of Opening Submissions CB 304[3]; see also Dr Chapple SC at T 11.31-.32.

9. On 20 September 2023, the plaintiff filed an amended summons joining SAD2 by her tutor as a second defendant and it is that process on which the plaintiff proceeded at the hearing. Mr Morrison of counsel appeared briefly (to read certain evidence and address an issue regarding costs) before seeking to be excused for the balance of the hearing: T 4.23-12.33. Mr Morrison was then excused from further attendance without objection from the other parties: T 12.31.

Suppression and non-publication orders

10. The summons did not anonymise the names of the parties.

11. As will become evident from the details below, the deceased was indicted on four charges. The “Indictment” sheet ^[4] does not refer to the provisions of the Crimes Act 1900 (NSW) (Crimes Act), under which the charges are laid. There is a separate “Facts Sheet” which, on its first page, lists four offences, two of which are described as “Intentionally sexually touch child >= 10yrs & < 16yrs (dv) TI” said to be under s 66db(A) of the Crimes Act, ^[5] the other two being described as “Indecent assault person under 16 years of age (dv) Tl” said to be under s 66m(2) of the Crimes Act. ^[6]

    4. CB 102-103.

    5. Seemingly a reference to s 66DB(a) of the Crimes Act.

    6. Seemingly a reference to s 61M(2) of the Crimes Act.

12. The Plaintiff’s Outline of Submissions (POS) stated: ^[7]

In October 2020, SAD2 alleged that the deceased had touched her inappropriately. Those allegations were investigated by police and resulted in the deceased being charged with the offence of sexual touching (s. 66DB(a) of the Crimes Act 1900). The deceased was also charged with indecent assault (s. 61M(2) of the Crimes Act 1900), although this provision was repealed at the time of the complaint and relates only to offences committed prior to 1 December 2018. Those allegations were denied by the deceased during his lifetime.

7. CB 301[33].

13. Pages 2-5 of the Facts Sheet set out what is described as the “Full Facts”. Page 2 describes alleged sexual touching by the deceased of the plaintiff at a location in [redacted]. However, the description of those events when the plaintiff was aged approximately 5 or 6 years old does not appear to have been charged as offences. Page 3 references 8 offences, variously described as “Aggravated Indecent Assault” (offences 1, 3, 5 and 7) and “Aggravated Intentionally Sexually Touch Child” (offences 2, 4, 6 and 8). Those offences are alleged to have occurred at [redacted]. Page 4 details two further offences (9 and 10) described as “Intentionally Sexually Touch Child > 10”. Those offences are said to have occurred at premises in [redacted].

14. It is not entirely easy to reconcile the description of the offences, particularly offences 1-8 with the indictment, as each of those offences are described in terms using the adjective “Aggravated”. Yet “aggravation” is, relevantly, only a word used in description of an offence under s 61M(1), which is not listed as being one of the 4 indictable offences.

15. However, having made that observation, for the purposes of this matter, I do not consider it is necessary to explore that peculiarity. The matter was litigated on the basis that the deceased was indicted with respect to offences which were “prescribed sexual offences” for the purposes of s 578A of the Crimes Act. ^[8]

    8. See Orders made on 27 November 2023.

16. The proceedings initially progressed without any suppression orders. In the interlocutory stages of the proceedings, I raised with the parties the question of whether any suppression order ought to be made. Prima facie, the relevant offences were “prescribed sexual offences” for the purposes of s 578A of the Crimes Act and s 3 of the Criminal Procedure Act1986 (NSW).

17. With the concurrence of the parties, on 27 November 2023, I made certain non-publication and suppression orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW).

18. During the hearing, I raised with the parties whether, other than with the delivery of full reasons for judgment to be limited to the parties, the publication of the reasons (as distinct from the fact that a judgment had been delivered and catchwords) should remain restricted on New South Wales Caselaw. No one contended for a position other than that the publication should be restricted: T 26.15-27.31.

Other formalities

19. Other than [Q], eligible by dint of her being a former spouse of the deceased, there was no suggestion that there was any other eligible person. [Q] in her own capacity as such does not make any claim on the deceased's estate, thus allowing her to act as SAD2's tutor. [Q's] interests in her own right may be disregarded pursuant to s 61 of the Succession Act 2006 (NSW) (Succession Act).

Real issues

20. There was no real dispute in the proceedings that the plaintiff is eligible on the basis of being a person with whom the deceased was living in a de facto relationship at the time of his death (T 39.31-.32): s 57(1)(b) Succession Act.

21. Indeed, the plaintiff was cross-examined on that basis: T 14.16-.34. The parties agreed that the real issues in the proceedings were as follows (see Statement of Issues dated 15 August 2024):

1. Whether the deceased made proper and adequate provision for the plaintiff (by making no provision for her)?

2. If proper and adequate provision was not made to the plaintiff whether there should be an order for provision for the plaintiff?

3. What quantum (if any) and form of provision ought to be made for the plaintiff, taking into account benefits she received both before and after his death, including accommodation?

Evidence and credit

Affidavits and other evidence

22. Leaving aside evidence from the parties’ solicitors as to the costs of the proceedings, the parties relied upon the following affidavit evidence.

23. The plaintiff relied upon affidavits from herself and four other deponents, namely [OP] (a friend of the deceased), [XZ] (a cousin and neighbour of the deceased), [LN] (the partner of the deceased's brother [W]) and [V].

24. The first defendant relied upon two formal administrator affidavits of herself, the second affidavit being an update as to the estate of the deceased. She also relied on an affidavit of her solicitor [redacted] addressing service of notice of a claim on [Q].

25. The second defendant’s tutor relied upon two affidavits of herself.

26. The plaintiff’s and first defendant's affidavits were read without any objection. There were a minimal number of objections to the affidavits of [Q] which I ruled upon.

27. In addition, [Q], as tutor, relied upon a report of [Dr Jones], a psychiatrist addressing an opinion as to the long-term effects of childhood sexual abuse and parental suicide on children. The report was said to be adduced pursuant to the provisions of s 79(2)(b) of the Evidence Act1995 (NSW) (Evidence Act): CB 311[30]; T 9.34-.40. The report was admitted without any specific objections as to its contents. A chronological bundle of materials drawn partly from annexures to the affidavits was tendered and marked exhibit JP-1 (pages 102-288 of the CB): T 6.50. A letter from [redacted] to [redacted] and [redacted] dated 23 August 2024 addressing details of superannuation and life insurance policies was tendered: exhibit D1. Both exhibits were admitted without objection.

Plaintiff’s credit

28. The plaintiff was the only deponent cross-examined.

29. Broadly speaking, the following aspects of the plaintiff’s evidence were not seriously disputed:

1. the fact that the plaintiff was in a de facto relationship with the deceased;

2. the length and the nature of that relationship (noting that was also deposed to by [OP], [XZ] and [LN]); and

3. the plaintiff’s contributions to the improvement of the deceased’s property ([Sunny End property], see below), in respect of which the plaintiff was not cross-examined and further as deposed to by [OP], [XZ] and [LN].

30. SAD2's counsel submitted that the plaintiff had in her financial disclosure made no mention of a possible benefit from what is described below as the Plum superannuation: CB 309[17]. I am not satisfied that there was any untoward nondisclosure by the plaintiff in that regard.

31. Further, it was submitted by SAD2's counsel that the conduct of the plaintiff should be carefully scrutinised by the Court by reference to four specified matters (footnotes omitted): CB 310[18]

The conduct of the plaintiff should be carefully scrutinised by the Court. The evidence will show that, since the death of the Deceased, the plaintiff has:

a. failed to pay rent for her occupation of the Deceased's home with her mother until recently;

b. permitted others to occupy the second house on the Deceased's property, apparently without charge;

c. failed to account to SAD 1 for the $70,000 which the Deceased deposited into her bank account for the purpose of allowing him to obtain government grants; and

d. failed to account to SAD 1 for the plant and equipment which it is understood was purchased for $109,308 for the Deceased.

32. It is not entirely clear to me whether the above matters were advanced as being matters which should lead me to make adverse findings regarding the plaintiff’s credit or reliability as a witness, to reject part of the plaintiff’s evidence, or further or alternatively as matters counting against the making of a family provision order.

33. I can immediately say that I am not persuaded that the above-mentioned matters materially weigh against the plaintiff's claim as a basis for rejecting the plaintiff’s evidence in terms of its reliability or credibility.

34. The plaintiff gave evidence in a frank and straight forward way. She made appropriate concessions. Generally, I accept her evidence, of which I make more particular findings below.

Other deponents

35. There was no challenge to the admitted evidence of [Q], [V], SAD1, [OP], [XZ] and [LN].

36. Q’s affidavit evidence broadly speaking addressed the circumstances of her relationship with the deceased, disclosures made by SAD2 to her regarding alleged sexual assault by the deceased (which I will refer to below), her own financial circumstances and those of SAD2, SAD2’s educational and extracurricular activities including costs associated with those matters, other current and future expected expenses, and SAD2’s health, both physical and mental. On those matters broadly speaking, other than as qualified below, I accept [Q’s] evidence.

37. [Q] also replied to the plaintiff’s initial affidavit in chief. Generally, other than as addressed above or qualified below, I accept [Q’s] reply evidence.

38. [V’s] affidavit was essentially limited to addressing her own financial circumstances and I accept her evidence.

39. SAD1’s affidavit evidence was essentially limited to setting out details regarding the estate and the arrangements reached with the plaintiff regarding renting of [the Sunny End property] (see below) and I accept her evidence.

40. The evidence of [OP], [XZ] and [LN] essentially addressed two matters being: (a) the relationship between the plaintiff and the deceased and (b) work undertaken by the plaintiff and the deceased in relation to the purchase and improvement of [the Sunny End property]. Broadly speaking their evidence was consistent with, and certainly not in any substantial conflict with, the evidence of each other and the plaintiff on those matters and I accept their evidence.

Plaintiff’s eligibility

41. SAD2's counsel did not actively dispute the plaintiff's assertion of a de facto relationship and appears to have accepted that, by late 2016, the plaintiff and the deceased were living together full-time: CB 308[9]; T 25.15-.18. The matter was conducted on the basis that her eligibility as such is not disputed.

41. The non-disputing of the plaintiff’s eligibility as a person with whom the deceased was living in a de facto relationship at the time of his death, whilst important, does not completely alleviate the Court from being appropriately satisfied as to the plaintiff’s eligibility, as the plaintiff’s submissions recognised. For that reason, it is appropriate to briefly address it.

42. “De facto relationship” is defined in s 21C of the Interpretation Act1987 (NSW). Dr Chapple SC submitted that the definition focuses attention on whether the deceased and the plaintiff were living together as a couple within the meaning of that section and that the determination of that question is to be made after taking into account all of the circumstances of the relationship, including those enumerated in ss 21C(3)(a)-(i), citing Le v Angius; Angius v Angius [2024] NSWSC 924 at [36]-[97]: CB 297[13].

43. On [redacted] 2015, the plaintiff met the deceased, at [redacted]. She says they “hit it off” and soon became inseparable. The deceased was living with his brother [W] at [redacted] at the time. Both the plaintiff and the deceased at that stage were finalising separations from their former spouses: CB 18[16]-[17].

44. In late 2015, the deceased rented a house at [Woodview] with [W]. The plaintiff and her mother were renting at the time in [redacted], and then later in [redacted]. The plaintiff said she began to spend most of the time, being five days a week, at the [Woodview residence]. From this point the plaintiff appears to have been working at [redacted]: CB 18-19[18]; T 14.25-.28.

45. By late 2016, the plaintiff states that she was living full-time with the deceased at the [Woodview] residence: CB 18-19[18]-[20]; T 14.25-.28. They went away most weekends to visit friends or camping. They travelled to [redacted] in 2017.

46. Dr Chapple SC submitted that the plaintiff’s relationship with the deceased evolved into a de facto relationship commencing in or about late 2015 when the plaintiff cohabited with the deceased in the [Woodview] residence that the deceased had initially rented with his brother [W] [redacted]: CB 19[18]): T 28.14-.34, 28.50-29.2.

47. Dr Chapple SC contended that the relationship developed through 2016 in three main ways. First, their living arrangements intensified such that, by the end of 2016, the plaintiff was cohabiting with the deceased in [the Woodview residence] on a full-time basis. Secondly, the public aspect of their relationship was evident (travelling to [redacted] to celebrate a wedding for the plaintiff’s friend) and thirdly they shared expenses, albeit that the deceased paid more because he earned more: T 28.36-.41. Dr Chapple SC stressed the importance of the fact that the plaintiff supported the deceased through disagreements he was having with [Q] regarding SAD2: T 28.41-.45. Dr Chapple SC submitted that the relationship deepened in intensity from [redacted] 2017 in a context in which they travelled to [redacted] for a family reunion so that the plaintiff’s family could meet the deceased, and where some months later they travelled to [redacted] with the deceased’s mother and SAD2: T 29.10-.19.

48. The relationship, according to Dr Chapple SC, was further cemented by the decision of the deceased and the plaintiff to buy a farm together, specifically [the Sunny End property]: T 29.19-.21.

49. There are other aspects of the plaintiff’s relationship with the deceased that bear upon the nature of their de facto relationship. I will address this further below in dealing with the plaintiff’s claim for provision.

50. Apart from the plaintiff’s evidence, there was unchallenged evidence from [OP] that after he met the plaintiff, the deceased had informed him “I finally met the woman I want to be with”: CB 29[6]. He deposes that he first met the plaintiff in 2015 and that the deceased and the plaintiff were openly affectionate towards one another and, in the years that followed, he only ever offered praise for the plaintiff: CB 29[6].

51. [XZ] gave evidence that whilst the deceased had informed him that he had told the plaintiff he did not wish to have any children, he wished to be with her and was committed to the relationship: CB 44[4]. [XZ] stated that he witnessed their dynamic as a couple and indicated that they appeared to be very happy together, were physically affectionate and laughed a lot: CB 45[9].

52. [LN] deposed to the fact that the deceased described the plaintiff as his “soulmate”: CB 55[7]. She stated that the deceased and the plaintiff appeared to her to be a perfect couple in that they were always socially busy, did everything together and appeared to get along extremely well. She never saw them argue or exchange cross words: CB 55[8].

53. Whilst the defendants did not dispute the plaintiff’s eligibility, I am independently comfortably satisfied that the plaintiff is eligible as the person with whom the deceased was living in a de facto relationship at the time of his death and accept her evidence in that regard as well as the evidence (which was uncontested) of [OP], [XZ] and [LN].

Estate

Assets & liabilities

55. The deceased left an estate which, according to the inventory of property (CB 239) totalled $3,940,657.77. The main assets of the estate at the date of his death were listed as comprising a property known as [the Sunny End] valued (then) at $2,000,000, MLC Life Insurance Policy proceeds ($926,100) and superannuation being AMP Signature Super ($276,194) and Plum Super ($546,000).

56. Pursuant to pre-trial directions, the parties provided an agreed schedule on 22 August 2024 (exhibit JP-2) which set out the agreed assets and liabilities of the estate as at that date. Subject to differing values as to plant and equipment (the plaintiff and first defendant contending an estimated value of $20,000 and the second defendant contending a value of $127,394), the following were agreed assets and values, namely:

1. [Sunny End property] $1,950,000;

2. Monies held in a controlled monies account $144,498.51;

3. Toyota Hilux $35,000; and

4. Campervan $15,000.

57. In relation to the plant and equipment, I invited Mr Ellison SC to explain to me the contention regarding the differing values: T 8.19-.20. He stated that the higher figure ($127,394) was taken from “the depreciation schedule” and that the “second figure” (which I take to be the lower figure of $20,000) is the plaintiff's current estimate of value, which is agreed to by the executrix: T 8.22-.24. The first defendant in the updating administrator’s affidavit estimated a figure for farm machinery of $20,000: CB 79. The plaintiff did not give any specific evidence regarding that, although in their submissions, the plaintiff's counsel appeared to adopt the figure of $20,000 for the value of farm machinery: CB 294. It is unclear to me where Mr Ellison SC derived the figure of $127,394 from. The only relevant depreciation schedule relating to the deceased is a schedule for the year ended 30 June 2022 prepared by [redacted]: CB 212-215. That schedule contains two listings for plant and equipment, one being a “general pool – plant & equipment” with a cost value of $108,986 (CB 213) and a further listing of different items of plant and equipment, totalling $78,908 (CB 214-215). Mr Ellison SC submitted that it was not suggested “that it's about to be turned into cash either way”: T 8.24-.26. The issue regarding the value of the plant and equipment was not addressed further by any of the counsel in the proceedings. There was no cross-examination in relation to the figures. The difference between the two figures is $107,394. In the scheme of things, it will make no material difference to my assessment of the outcome of the proceedings. Were it necessary for me to make a finding in relation to the matter, I would find that the figure which is supported by the sworn evidence of the first defendant in her capacity as executrix (and agreed to by the plaintiff) is the more reliable figure for the plant and equipment.

58. At the date of the deceased's death, the estate had a number of liabilities including (exhibit JP-2; CB 61):

1. Mortgage [redacted] $764,333.46;

2. [A law firm] $39,600;

3. Child Support Agency $715.59;

4. ANZ credit card $374.97;

5. [A law firm] current and anticipated legal fees $7,000; and

6. [redacted] Valuers valuation fee $3,850.

59. As at the date of the hearing there were no liabilities of the estate (other than for costs): exhibit JP-2; CB 80[8]. The mortgage to [redacted] had been repaid and discharged, the debt to [a law firm] had been paid by the release of funds held in their trust account, debts to the Child Support Agency, [a law firm] and [redacted] Valuers had been paid and it appears that the listing of monies owing on the deceased’s ANZ credit card had been an error: CB 80[8].

[Sunny End property] and tenancy

60. The deceased’s property [Sunny End] was located by the deceased and the plaintiff in 2019. It is a farm of 200 acres in [redacted]: CB 20[27]. ^[9] The house on the property apparently has six bedrooms, two car spaces and two bathrooms: CB 250. There was some slightly conflicting evidence regarding the purchase price of [the Sunny End property]. ^[10] I find it had been sold in 2014 for $960,000 and purchased by the deceased in 2019 for $815,000 (CB 91[56(f)], 251) with the deceased paying a deposit of $300,000, the balance being borrowed and secured by a mortgage: CB 20[27],[30]. The name [Sunny End] was chosen by the deceased and the plaintiff named after a restaurant they loved attending at the [redacted]: CB 20[28]. The mortgage repayment was $3,600 per month and the plaintiff contributed $1,000 towards both the mortgage and utility bills: CB 20[30]. The deceased rented out the granny flat to a tenant through [redacted] for about $300 per week: CB 21[31].

    9. Some other evidence indicates a size smaller than that, namely 782,177m2: CB 250.

    10. See plaintiff's affidavit indicating that [the Sunny End property] was purchased for $1M: CB 20[27].

61. Following the deceased’s death, the plaintiff remained in [the Sunny End property]. The plaintiff did not offer to start paying rent until she was asked by the executrix to do so: T 19.31-.36. Subsequently, an arrangement had been reached between the plaintiff and first defendant on behalf of the estate for the plaintiff to occupy [the Sunny End property]. The parties entered into a tenancy agreement dated 2 June 2024 but agreed for it to take effect from 1 March 2024: CB 82[28]. Prior to entering that agreement, the plaintiff was paying rates and insurance premiums in respect of [the Sunny End] property. Pursuant to the agreement, the plaintiff has been paying to the estate, the sum of $720 per week ($600 rent and $5 per head of cattle totalling $120 per week): CB 82[28]-[29].

“Granny flat” and “the unit”

62. In cross-examination the plaintiff described a container home (purchased in May 2022) as being the granny flat or “mum’s granny flat” and a separate residence which was located on the property from the time of its purchase as being “the unit”: T 19.38-20.5. The unit is connected to water and electricity services, and a person could independently live there: T 22.30-.47. It is that “unit” that has been occupied by people from time to time including [the Smith family] for approximately three or four months straight after the deceased’s death: T 20.7-.21. They were friends of the deceased and the plaintiff and one of them (a female) worked with the deceased and, whilst they could potentially have paid rent, the plaintiff did not ask them to do so: T 20.23-.40. For her part the plaintiff had not taken steps to attempt to rent the unit out since the [Smith family] moved out: T 22.49-23.4. However, it is not evident that she would have the right to do so, she not being the administrator of the estate.

Superannuation

63. In addition, there was disclosed superannuation (totalling $822,193.92) as follows:

1. AMP Signature Super monies $276,193.91; and

2. Plum Superannuation $546,000.01.

64. Neither of those superannuation sums have actually been paid out to the estate, the plaintiff or SAD2. Exhibit D1-1 sets out details in relation to the AMP Signature Super and the Plum Super which were not disputed by the plaintiff or SAD2.

65. In relation to the AMP Signature Super, on 21 March 2016 the deceased made a binding non-lapsing death benefit nomination directing that 100% of his death benefits be paid to his estate: CB 82[20]. However, because he entered it into a de facto relationship with the plaintiff after the nomination was made, the trustee has apparently formed the view that the death benefit nomination is not valid and accordingly has asserted a discretion as to how the policy proceeds will be paid: CB 82[21].

66. On 29 June 2023, the first defendant's former solicitors [redacted] lodged a death claim form seeking payment of the superannuation monies to the estate: D1-1.

67. On 12 March 2024, Mr Lynch received an email from [redacted], a claims administrator with AMP Australian Wealth Management, which relevantly stated (D1-1):

AMP trustee has been put on notice that there is an ongoing Court proceeding regarding the above Estate. We will not proceed with the claim until the Court proceeding has been finalised.

68. In relation to the Plum Super, the deceased had made a non-binding death benefit nomination directing that 100% of his death benefits be paid to the plaintiff: CB 82[24]. By reason of the nomination being non-binding, the trustee has a discretion as to how the policy is to be paid. Plum Super has not requested a formal claim be lodged, but rather that a “next of kin’s statutory declaration form” be completed by the first defendant setting out details of the estate and all potential dependants of the deceased. That form was completed by the first defendant and Mr Lynch submitted it to Plum Super on her behalf on 31 October 2023: D1-1.

69. On 24 May 2024, Mr Lynch received an email from [redacted], an associate, Trustee claims at MLC (the trustee of the Plum Super policy) which stated:

The Trustees have been advised that there is a family provision case in NSW, and since this is the case, the Trustee cannot decide who the super death benefit should go to. The Trustee will have to wait for the case to be finalised.

70. The letter from Mr Lynch to the solicitors for the other parties dated 23 August 2024 conveyed an undertaking on behalf of the first defendant to apply in due course for the Plum Superannuation policy to be paid to the deceased’s estate.

71. Neither of the two superannuation trustees have been joined as parties to the proceedings.

72. SAD2’s counsel in their outline of submissions stated that if any provision is made for the plaintiff, then in view of the uncertainty surrounding the superannuation interests held by the Deceased with Plum and AMP, further orders should be made by which: (a) the parties, including the first defendant, should be ordered to jointly authorise and direct Plum and AMP to pay the deceased's superannuation interests to the estate; and (b) the plaintiff should provide an indemnity to the estate for any payment of money which she receives from either Plum or AMP: CB 312[34].

73. On hearing of the matter, Dr Chapple SC indicated that to the extent that any superannuation paid to the plaintiff is larger than any order for provision, the plaintiff would undertake for that superannuation to be returned to the estate: T 12.35-.40. Following the discussion, Mr Ellison SC was content with that undertaking: T 12.42-13.9.

Legal costs

74. The parties’ estimate of costs was based on a two-day hearing. Commendably, the parties were able to complete the hearing of the proceedings within the first day. Accordingly, the costs of the parties will likely be somewhat less than the estimates.

75. The plaintiff’s costs and disbursements, including counsel fees and GST were estimated to be on the indemnity basis $108,851.86 and on the ordinary basis $81,638.90 according to the affidavit of Alison Butler: CB 41. Somewhat higher estimates for the plaintiff’s costs appeared in the joint schedule, namely $117,831.86 (indemnity basis) and $90,618.90 (ordinary basis). The plaintiff’s costs agreement provides that payment of the plaintiff’s costs is conditional on a successful outcome. There is no uplift fee payable on the plaintiff’s costs: CB 41.

76. The position regarding the first defendant's costs is a little messy and can be explained as follows. [Solicitors] acted in relation to administration of the estate, and it is agreed that that amount of $35,234.76 has been paid to those solicitors out of the estate: JP-2. Additionally, in respect of the first defendant’s costs of family provision proceedings, an amount of $50,798.50 has been paid out of the estate to [another law firm]: JP-2. Of that amount, approximately $36,645.16 including GST are costs incurred prior to the “carriage order”: T 11.29-.32. ^[11]

    11. The transcript records Dr Chapple SC stating those figures but in fact it was Mr Morrison.

77. In addition to that sum ($36,645.16), Mr Morrison provided an estimate of further costs of $33,605 including GST, giving rise to a total of $70,250.16. Thus, based on those figures, there is a balance of $19,451.66 ($70,250.16 minus $50,798.50) of costs incurred by the first defendant which have not been paid out of the estate: T 11.29-.41.

78. There is no dispute that the first defendant’s costs up to the time of the “carriage order” ought to be paid out of the estate on the indemnity basis. Thus, the dispute in relation to the first defendant’s costs is whether an additional amount of $33,605 (inclusive of GST) ought to be borne by the estate of which an amount of $19,451.66 remains unpaid.

79. If an order for provision is made, the plaintiff’s legal costs calculated on the ordinary basis ($90,618.90) and SAD2’s costs calculated on the indemnity basis ($138,410) will be paid out of the estate. They total approximately $229,029. Further, assuming that the costs incurred by the first defendant after the carriage order are also paid out of the estate, the total costs which will need to be paid out of the estate will total approximately $248,481 ($229,029 plus $19,452).

Costs of realisation of [the Sunny End property]

80. The plaintiff accepts that [the Sunny End property] will need to be sold: T 37.34-.35. The parties agreed that costs associated with the sale would include solicitor’s costs (estimated $3,000) and real estate commissions/marketing costs (estimated $58,000): exhibit JP-2.

Net estate

81. The plaintiff’s counsel in the written outline of opening submissions postulated (assuming that all parties’ costs are paid out of the estate) that the total net distributable estate and notional estate would be in the order of $2,686,845.03: CB 295[8]. SAD2’s counsel did not, as far as I can tell, venture any specific figure for the net distributable estate and the notional estate.

82. Both the summons (CB 3) and the amended summons (CB 13) contained prayers for an order designating as notional estate “such property as the evidence may disclose”. The POS sought no specific order designating superannuation funds as notional estate (as to which I say more below). The submissions simply referred to the superannuation entitlements as if it was “notional estate”: POS [6], [8], [29]. Nonetheless, the hearing proceeded on the basis that the matter should be determined having regard to not merely the available actual estate but also the monies in the superannuation funds.

83. Subject to the effect of legal costs and any costs of realisation of [the Sunny End property], the net distributable estate is essentially the value of [the Sunny End property] ($1.95M), monies of $144,500 and an additional amount of what I find is no more than about $70,000 relating to the Toyota Hilux, the Campervan and plant and equipment.

84. On the assumption that the legal costs of the proceedings ($248,481) and sale costs of [the Sunny End property] ($61,000) totalling $309,481 come out of the estate, the net estate is $1,855,017.51 ($2,164,498.51 ^[12] less $309,481). In addition, there is superannuation of $822,193.92. Those two figures total $2,677,211.43. That is slightly lower than the plaintiff’s postulated total figure for both estate and superannuation of $2,686,845.03 which I have referred to above but, in the scheme of an estate of that size, is not a material difference. I propose to proceed on the basis that the potential fund available that may be the subject of a family provision order is in the order of $2.677 million.

    12. Comprising (a) The [Sunny End property] $1.95M plus (b) controlled monies $144,498.51 plus (c) Toyota Hilux, Campervan, and plant and equipment $70,000.

Background facts

85. I find the following facts on the evidence, particularly in light of what I have outlined above in respect of the evidence and credit of witnesses. These facts were either admitted or not seriously disputed.

86. The plaintiff was born in [redacted] in [redacted] 1977. The family moved to live in [redacted] during her early years: CB 17[7]-[8]. She completed her “O Levels” and left school at 17. She worked as a receptionist, then later at a computer company: CB 17[9]. In 2000, [redacted], she moved to Australia with her partner at the time, initially to the [redacted] area and then later to the [redacted] area where she has lived since that time: CB 18[10]. The plaintiff studied a business administration course part-time at the [redacted] and in 2007 was granted permanent residency in Australia. In about 2011 her mother immigrated to Australia: CB 18[11], [13], [14].

87. [Q] commenced a relationship with the deceased in 2005 and married him on [redacted] 2010. They separated on [redacted] 2014. Following separation, SAD2 lived with [Q] but continued to have contact with the deceased. [Q] and the deceased reached agreement regarding a parenting plan following mediation: CB 86.

88. Over the period from 2015 to 2018, the plaintiff’s relationship with the deceased commenced and evolved as I have indicated above.

89. [Q] and the deceased divorced on [redacted] 2018. In December 2018, [Q] and SAD2 moved to [redacted] (approximately an hour's drive from [the Sunny End property]) and according to [Q] the deceased continued to see SAD2 whenever his work commitments allowed: CB 86.

90. In 2019, the plaintiff and the deceased had to move from the [Woodview] residence as it was being sold. They rented a house in [redacted], looking to buy a farm. Following inspection of numerous properties, they located [the Sunny End property]. The plaintiff was unable to contribute to the deposit at the time because her disposable income went towards supporting her mother and paying her mother’s rent: CB 20.

91. In August 2019, the plaintiff and the deceased travelled to [redacted], including visiting [redacted]. On their return they moved into [the Sunny End property]. The deceased and the plaintiff carried out work improving the property: CB 20[29]-21[31].

92. From about this point, or maybe a little later, they commenced to rear cattle. Prior to this time, the plaintiff had had no involvement with cattle and stock: T 23.47-.49.

93. Towards the end of 2019, [Q] states SAD2 became increasingly reluctant to visit the deceased and regularly refused to go. She states that SAD2 complained that during such visits, the deceased was spending his time working on the farm and not spending time with her, that the plaintiff did not show interest in her, and would often or usually go to [elsewhere] when SAD2 was spending time at the farm, and that SAD2 spent most of her time at that house in her bedroom or watching TV: CB 86[10]-87[11].

94. On [redacted] 2020, SAD2 disclosed to her mother that the deceased had sexually assaulted her: CB 87[15].

95. On [redacted] 2020, SAD2 was interviewed by DSC [redacted]: CB 132-154.

96. On [redacted] 2020, police attended [the Sunny End property] and arrested the deceased. The deceased was interviewed at [redacted] Police Station by DSC [redacted]. There is an ERISP transcript of that interview: CB 155-174, 175. Contact between the deceased and SAD2 ceased following this: CB 87[15].

97. On [redacted] 2021, the plaintiff obtained the Livestock Production Assurance accreditation, which included certificates covering property risk management, livestock transactions, as well as an animal welfare course: CB 21[33].

98. In [redacted] 2021, the plaintiff and the deceased opened the Westpac Business Account to manage income and expenses from rearing the cattle. The unit was rented to a tenant for about $300 a week and the plaintiff purchased a crush for $7,500 and cattle panels for $5,000: CB 21.

99. In [redacted] 2022, the deceased deposited $70,000 into the plaintiff's Suncorp Savings Account. The plaintiff’s affidavit evidence suggested that this was for the purpose of reducing the deceased's assets to obtain government grants: CB 21[34]. In cross-examination, it transpired that no government grants were actually applied for and that the $70,000 sum or whatever was left of it still remained in the plaintiff's savings account: T 16.16-.27.

100. In May 2022, the plaintiff and the deceased purchased a container home (see below).

101. On [redacted], the trial in respect of the charges against the deceased commenced at [redacted] District Court, with the deceased defending the charges: CB 22[39], 87. Approximately a week before the trial date the plaintiff states that one evening at [the Sunny End property], the deceased proposed to her in the presence of SAD1, [B] and [V] and produced a ring: CB 22[37].

102. Precisely what occurred in respect of the trial did not merge with crystal clarity on the affidavit and documentary evidence. During the course of the hearing, I sought to see if there was some greater clarity regarding the events of the trial. Following the morning tea adjournment, Dr Chapple SC informed me that he and Mr Ellison SC had had a conversation addressing what had occurred. I was informed that there was agreement that SAD2, “presumably through the playing of ERISP” ^[13] had given evidence, along with [Q], the plaintiff, the deceased, and three character witnesses on behalf of the deceased. The jury retired at the conclusion of evidence but were unable to return a verdict and overnight (I infer in the early morning hours of [redacted]) the deceased took his life. No verdict was ultimately returned and the jury were discharged: T 25.48-26.13.

Sexual abuse allegations

13. Obviously, ERISP is not the correct terminology regarding any evidence from SAD2. ERISP is an acronym for electronically recorded interview with suspected person. SAD2 was not the suspected person. I infer that SAD2’s Child Interview was played to the Court.

Real issues and relevance

103. In this case, the following facts are undisputed: (a) SAD2 had disclosed to her mother that the deceased had sexually touched her; (b) the deceased was charged with offences relating to child sexual assault; (c) the deceased defended those charges at a hearing at the District Court; and (d) the deceased committed suicide prior to the jury delivering a verdict.

104. On any view, leaving aside actual findings in these proceedings regarding whether the deceased committed the offences charged or not, the allegations that the deceased had sexually assaulted SAD2 and their consequential implications are matters of gravity.

105. The framing of the Statement of Issues by the parties was at a high level, essentially in terms of the jurisdictional questions for a family provision claim under Chapter 3 of the Succession Act and did not make any specific reference to sexual assault allegations.

106. Despite the seriousness of those allegations, the outline of opening submissions on the part of SAD2 did not indicate any express position as to what the Court should do in relation to those allegations and, in particular, whether the Court should make findings in respect of them.

107. SAD2’s counsel did however include the following statement in the outline of submissions at CB 311[30]-312[32]:

30. The Court will receive the report of [Dr Jones] dated 15 September 2023. The report is adduced on behalf of SAD 2 as general evidence of the effects of child sexual abuse on victims (s. 79(2)(b) of the Evidence Act 1995) as to the risk that [SAD2] will succumb to a psychiatric disorder in her life related to either, or both, the sexual abuse by the Deceased, or his suicide. It is submitted the risk to [SAD2] from both of those matters is a factor which underscores the moral duty which the Deceased owed to his daughter, [SAD2].

31. The Deceased had a clear moral obligation to provide for his daughter. He discharged that obligation by making a will which left the entirety of his estate to her. Given his alleged conduct towards her it is arguable that his obligation is even greater than that which might be seen as expected of a parent.

32. Furthermore, the moral duty which the Deceased owed to [SAD2] is informed by the fact that [SAD2] has not sought common law damages against the Deceased's estate for her abuse. As the annexed sample of awards of damages from this Court in cases of child sexual abuse shows, such damages, while being necessarily fact specific and varying accordingly, can nevertheless be very significant. A claim made by [SAD2] for common law damages had the potential to consume, a large part, if not all, of the estate, rendering the plaintiff's claim irrelevant.

108. On one view, that is an express submission that the deceased had sexually abused SAD2. Even if, properly construed, it is not an express submission, the clear implication of the statement in the context of the submissions (including that the plaintiff’s claim should be dismissed) conveyed that SAD2’s defence was being advanced on the basis that the deceased had sexually abused her.

109. Mindful of the seriousness of the allegations, early in the proceedings I sought to understand what the parties were requesting the Court to do in relation to the allegations. The following exchange occurred (T 4.42-5.17):

HIS HONOUR: As we come to deal with the directions, where are the parties sitting on the questions of abuse?  There have between some submissions in the outline of submissions that addresses the matter and what's the position?  Is there a contest as to whether the abuse took place?  What do parties say the Court can do and should do or should not do in terms of making findings?

CHAPPLE: There is a contest as to whether it took place.  There is no dispute on this side of the bar table that it was the belief of SAD2 that what she said and heard occurred but we say that is as far as the Court may make findings in respect of the abuse.

HIS HONOUR: Mr Ellison?

ELLISON: Your Honour, it's open to the Court to find that the assaults or abuse - however they're described - took place, but it is not determinative of the case because, unlike most cases, where is the plaintiff who says, for instance, "I've been excluded from the will because I made these allegations and the testator held it against me", in this case, for whatever reason, we make the point in our submissions, the testator made a will, or left a will which operated upon his death, to which he gave his whole estate to his daughter.  I think that's a significant difference that might make your Honour's task easier, or less complicated, but we say on the facts and circumstances and perhaps to draw an inference from the circumstances by which the deceased died, your Honour could be satisfied at the civil standard that the allegations were true, but as I say, I don't think your Honour has to be.

110. Mr Ellison SC did not abandon or withdraw the statement included in the outline of written submissions that I have extracted above (CB 311-312[32]). Certainly, Dr Chapple SC was conducting the proceedings on the basis that SAD2’s legal representatives were urging the Court to make a positive finding that a particular offence occurred: T 33.9-.13. At no stage did Mr Ellison SC strongly submit that the Court should or ought to make a positive finding regarding the alleged sexual assaults. His terminology was more neutral in terms that “it's open to the Court to find that the assaults or abuse - however they're described - took place” (T 5.6-.7) and that I “could be satisfied at the civil standard that the allegations were true, but as I say, I don't think your Honour has to be” (T 5.15-.17). His terminology that it was “open” to me to make a finding persisted in final submissions: see also T 40.44-43.6 (especially T 41.5, 41.8, 42.10, 42.36-.37).

111. In respect of the sexual touching and indecent assault allegations, the plaintiff's counsel noted that these had been denied by the deceased during his lifetime: CB 301[33].

112. They submitted that those allegations must be approached with caution because the deceased died prior to the resolution of the criminal proceedings: CB 301[34]. In this regard they made particular reference to decisions of Hallen and Pike JJ as follows:

34 Those allegations must be approached with caution because the deceased died prior to the resolution of the criminal proceedings. In Page v Page [2016] NSWSC 1218, at [57] Hallen J observed that “… [t]his 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 unable to defend himself”. More recently, in Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727 at [186], Pike J observed that “[t]here are many cases which make it clear that the Court on an application such as the present should not determine whether the allegations of sexual assault that have been made have been established”.

113. The plaintiff's counsel submitted that the Court should be slow to embrace any submission on behalf of SAD2 that the deceased’s conduct, if proved, and of itself, enhances the moral obligation of the deceased (to SAD2), though accepted that to the extent that the conduct enhanced any need of a beneficiary, then that conduct is relevant in determining the appropriate measure of provision, citing Litchfield v Smith [2010] VSC 466 at [57]; Williamson v Williamson [2011] NSWSC 228 (Williamson) at [125]–[127]: CB 302[35].

114. The passage from Williamson is as follows:

125 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.

126 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.

127 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].

115. Whilst Hallen AsJ did not make a finding on the issue of abuse (see [132]), the judgment does not support the proposition that generally no finding regarding abuse should be made.

116. Ultimately, Mr Ellison SC appeared to rely upon the fact that the deceased had sexually assaulted or abused SAD2 to underpin a submission that the deceased by reason of abuse owed SAD2 a “higher moral obligation than normal”: CB 311[30]-[32]; T 25.23, 43.4.

117. In those circumstances it seems to me clear that the spectre of the allegations of sexual assault by the deceased not merely formed part of the background of the proceedings but was advanced by SAD2’s representatives as being material to the parties’ Statement of Issues, in particular, whether the plaintiff had been left with inadequate provision and whether (as SAD2’s representatives contended) the plaintiff’s claim should be dismissed or (as the plaintiff’s representatives contended) a substantial order for provision should be made for her.

Should findings be made?

118. If the plaintiff’s above-mentioned submission (CB 301-302[34]) and the cases cited are intended to convey that it is not normally appropriate for the Court to determine allegations of sexual abuse or assault against the deceased in civil proceedings after the deceased’s death because the deceased is unable to defend himself, it is not evident to me that that properly reflects the appropriate legal principles.

119. There are many family provision claims in which serious allegations of misconduct (whether it be fraud or sexual abuse or otherwise) by the deceased as against the plaintiff or beneficiary or some other relevant person are raised which may bear upon a real issue in the proceedings.

120. The fact that the deceased is “unable to defend” him or herself in proceedings in respect of any allegation against themself ^[14] is an incident of every family provision claim that is ever heard. Further, the fact that “others involved in the life of the deceased” may have “little, or no knowledge, the truth of such allegations” ^[15] is not an uncommon incident of many family provision proceedings. Where serious allegations are made by plaintiffs, the executor/administrator defendant might or might not have evidence to respond to such allegations. If so, the evidence will be varied in type and cogency.

     14. In the sense that the deceased self-evidently is unable to address the allegations or give sworn evidence refuting the allegations.

     15. Page v Page [2016] NSWSC 1218 at [57].

121. The standard of proof in family provision proceedings, which are civil proceedings, is proof on the balance of probabilities: s 140(1) Evidence Act. The nature and strength of the evidence required to establish a fact depends on the nature of that fact and on the context in which the evidence is sought to prove the fact: Lim v Lim [2023] NSWCA 84 (Lim) per Kirk JA at [22] (Bell CJ at [1] and Griffiths AJA at [122] agreeing). In particular, the gravity of the matters alleged is a consideration that the Court may take into account in deciding whether it is satisfied that the matter has been proved to the appropriate standard: s 140(2)(c) Evidence Act.

122. This reflects the general law position which in some instances is described as the Briginshaw principle (Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 362; [1938] HCA 34 (Briginshaw)): see Lim at [23]; see also GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 at [57] per Kiefel CJ, Gageler and Jagot JJ, citing Rejfek v McElroy (1965) 112 CLR 517 at 521; [1965] HCA 46.

123. As observed by Kirk JA in Lim, Dixon J’s discussion in Briginshaw was concerned “with the appropriate standard of persuasion in respect of individual allegations of material fact rather than with the standard of persuasion appropriate to be adopted in respect of all allegations made in a particular civil proceeding”. ^[16]

     16. See [25]-[27] citing Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69 per Branson J at [125].

124. 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). One might doubt whether Hallen J in Page v Page [2016] NSWSC 1218 (Page) at [57]-[63] and Pike J in Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727 (Bradley and Irvine) at [186] were intending to convey any firm view otherwise. I doubt that those decisions, properly construed, support a proposition that sexual assault allegations generally should not be determined in family provision proceedings. If they do, I consider that any such proposition is too widely stated. I discuss those decisions below.

125. Understanding the statement in Page at [57] ^[17] requires some of the background to the decision. The claim was a family provision claim by a brother of the deceased who made allegations the deceased had sexually abused him.

     17. “...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.”

118. The setting of the sexual abuse claims was complex. An adult other than the deceased had been convicted of sexual assaults against the plaintiff for which the plaintiff had made a successful victims compensation claim: at [51]. During the trial of that other person the plaintiff had given some evidence of sexual contact of him by the deceased (some 40 years prior): at [52]. 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 (seemingly only months prior to the deceased’s death in July 2014) the plaintiff never pursued him for any compensation: at [53]. Hallen J observed that 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 the plaintiff: at [54].

119. In that context Hallen J stated at [57]-[58]

57 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.

58 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.

128. One reading of his Honour’s comments is that his Honour was guarding against the proceedings being used principally as a vehicle for compensation for sexual abuse: at [58]-[63].

129. In any event, a few points may be observed.

130. First, the comments of Hallen J in Page regarding the embarking of the Court on making findings of sexual abuse are, strictly speaking, obiter. The case was decided on a finding that the plaintiff was not an eligible person: at [170], [194].

131. Secondly, regardless, Hallen J was clearly not stating an inflexible rule. His Honour’s statement with respect to not determining “[t]his type of allegation” is qualified by the adverb “normally” thus leaving open the possibility that there will be occasions in which the allegations will need to be determined.

132. Thirdly, I do not read the Court of Appeal’s decision in Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331 (Page appeal) as endorsing the proposition that “… [t]his 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.” ^[18] Specifically, Sackville AJA (also in obiter) appears to acknowledge that there may be occasions in which a determination regarding historic sexual abuse may be relevant to a family provision claim, citing by way of an example, evidence establishing abuse which causes the claimant to suffer physical or psychological disability thus impairing his or her capacity to earn an adequate income: at [116]-[122].

     18. Plaintiff's submissions at CB 301-302[34].

133. As to Bradley and Irvine, that case is materially different from the present.

134. The case involved the hearing of two proceedings against the estate of the deceased. The Bradley proceeding involved an application by three stepchildren of the deceased. The Irvine proceeding involved an application by the deceased’s de facto partner of 35 years.

135. Relevantly, in relation to allegations of sexual abuse, the following may be noted:

1. each of the stepchildren contended that they had been sexually abused by the deceased and gave evidence which Pike J summarised at a high level (his honour considering it unnecessary to describe the allegations in the detail described by one of the stepchildren): at [49], [79], [112];

2. each of the stepchildren reported (to relevant authorities) allegations of abuse, made applications for victims compensation and received compensation: at [50], [82], [113];

3. there was a criminal trial in relation to the allegations of sexual abuse in which the deceased had given evidence and a verdict of not guilty had been returned: at [138], [213];

4. each of the stepchildren contended that they had left home as a result of the sexual and other abuse suffered at the hands of the deceased: at [25], [51], [114];

5. the allegations of abuse were denied by the deceased’s de facto spouse (being the stepchildren’s biological mother), and the deceased’s two sons from his first marriage, one of which was the defendant executor: at [25], [138], [152], [162];

6. one of the stepchildren, Glennis, returned to the property to live with the deceased and her mother and shortly thereafter made a statement withdrawing the allegation stating that her sibling Karen told her to make them up, though in cross-examination contended that she was brainwashed into saying that by her mother and the deceased: at [115];

7. each of the stepchildren maintained the allegations in the hearing but were cross-examined at a relatively high level such that his Honour concluded that there was no close examination or scrutiny of each of the allegations so as to permit a proper assessment of each: at [205]; and

8. a psychologist provided separate reports in relation to each of the stepchildren in circumstances where: (a) he was asked to assume that what he was told about the abuse allegations was in fact correct; (b) he agreed that if they were not correct, he would change his views; and (c) he was not asked to consider the basis on which the case was in fact conducted, namely, that each of the children believed they had been abused: at [164].

136. Pike J described the abuse allegations as a “critical issue” and stated as a “central core issue” what findings he would make on the sexual abuse allegations”: at [9], [11].

137. However, Pike J expressly records that none of the plaintiffs sought findings as to the truth of the abuse allegations: at [164].

138. In addressing the relevance of the sexual assault allegations, Pike J referred to the decision of Hallen J in Page extracting [57]-[60] of the reasons: at [175]. His Honour observed that the Page appeal from Hallen J’s decision was dismissed though did not expressly address the approach of the Court of Appeal to the abuse allegations in Page: at [175].

139. Pike J then stated:

177.   There are, however, cases where it has been suggested that if the Court determines that the allegations of sexual assault are false, that may totally disentitle a claimant: see Rowley v Bouwmeester [2005] TASSC 34 (Rowley) at [40]; Williamson v Williamson [2011] NSWSC 228 (Williamson) at [132] per Hallen AsJ.

178.   Other cases appear to have been determined on the basis that a belief on the part of the plaintiff that the conduct occurred is sufficient to explain the conduct of the plaintiff towards the deceased and the Court does not need to determine whether or not the allegations are true. Williamson was one such case. Fallow v Mullins [2012] NSWSC 406 is another.

140. It is significant to note that counsel for the three stepchildren plaintiffs did not contend that the Court was required to find that the alleged sexual assaults occurred but rather submitted that it was sufficient for the Court to conclude that each of the stepchildren believed they occurred: at [180],[185].

141. The defendant executor made a primary submission with a fallback submission, namely:

1. that the Court should positively conclude that the alleged sexual assaults did not occur, that they were made up relevantly to obtain money through victims compensation and motivated by hatred of the deceased and that, like the position adverted to by Blow J in Rowley, the making of the allegations disentitled each of the stepchildren from succeeding: at [181], [185], [200]-[203]; and

2. that the Court is not able to decide one way or the other as to whether the alleged assault occurred and as such it was a neutral factor: at [182].

142. In relation to belief of allegations, the defendant’s counsel submitted that most of the cases where a belief has been held to be relevant proceeded on the basis of a concession or acknowledgment by the estate as opposed to the Court determining what is relevant when the issue was contested. He submitted that a belief of sexual assault does not satisfactorily explain an estrangement and is therefore irrelevant: at [179], [182].

143. His Honour stated:

186.   There are many cases which make it clear that the Court on an application such as the present should not determine whether the allegations of sexual assault that have been made have been established. This no doubt explains the position taken by counsel for Cynthia, Karen and Glennis and the fallback position taken by counsel for Michael.

144. However, significantly, his Honour then went on to observe that:

187.   There is, however, some authority in support of the primary position advanced by counsel for Michael and as such I must consider whether I am satisfied on the evidence presented that the allegations are not true and that Cynthia, Karen and Glennis made them up.

145. On the stepchildren’s case, the relevance of adducing evidence of the allegations of sexual abuse was to explain why it is that they left the family home and had nothing to do with the deceased (or their mother) since that time (1997 in the case of two of the stepchildren and 1998 in the case of the other): at [184].

146. His Honour accordingly proceeded to address the issue regarding whether the abuse had occurred or was made up: at [191]-[203].

147. His Honour rejected the case theory and submissions of the defendant executor that the allegations were made up or (knowingly) false but proceeded on the basis that he was not able to determine one way or the other whether the allegations are true or not: at [204], [206], [215].

148. Importantly, his Honour found that there had been no contact between any of the stepchildren and the deceased for a period of over 20 years, in particular after the acquittal at the criminal trial. The lengthy non-contact and other circumstances of the case were fatal to the claims for further provision ([215], [224], [227]) and, in that context, Pike J stated there was no utility in considering whether the abuse allegations were believed to be true by the plaintiffs. Part of the other “circumstances” was that the de facto and the deceased’s sons had stood by him through the trial, working hard in the family business and thus assisting in maintaining and growing the deceased’s assets: at [215], [217].

149. Pike J did not at [186] identify the “many cases” said to support the proposition that the Court on an application such as the present should not determine whether the allegations of sexual assault that have been made have been established.

150. To the extent that it is submitted that there is some general principle of law that sexual assault allegation should not be determined in family provision cases, I reject that submission.

151. Undoubtedly, as clearly recognised by Hallen J, ^[19] the Court ordinarily scrutinises allegations made against a deceased person (e.g. Plunkett v Bull (1915) 19 CLR 544, per Isaacs J at 548-9; [1915] HCA 14) and it is at times very difficult to determine serious allegations that have occurred decades ago. However, the difficulty of the task, in particular where there are complicated issues of causation involved, ^[20] is an insufficient reason for not making such a determination should it be relevant to do so.

     19. Page at [48]-[49].

     20. Page at [63].

152. Depending upon the nature of the real issues in dispute in any given family provision proceedings, there may be proper and appropriate reasons to make findings regarding alleged abuse. For example, such findings may be necessary if it is said that an assault or abuse impinges upon an applicant’s present financial circumstances or relevantly provides an explanation for the conduct of the applicant towards the deceased generally or an explanation for the applicant’s mental state giving rise to needs. ^[21]

     21. Page per Hallen J at [59] citing Williamson at [124]-[127] (albeit in respect of parental behaviour).

The evidence

153. On the hearing, as noted above, it was uncontroversial that consequent upon SAD2 making a disclosure to [Q], the following occurred: a complaint was made to the police; the deceased was charged with specific offences; he was committed to a trial and defended the charges; and the trial progressed until the deceased’s suicide: CB 87[16]-[20].

154. The material which bears upon the question of whether the deceased sexually assaulted SAD2 was documentary, being (a) various police records, which I detail below and (b) brief affidavit evidence from [Q]. [Dr Jones’] report does not directly bear upon the question of whether the deceased sexually assaulted SAD2. The report was adduced for a different purpose of addressing the impact upon SAD2’s mental health going forward. I will say more about the report in addressing SAD2’s health and circumstances below.

155. The adduced police documentary evidence admitted without objection and without any limitation ruling under s 136 of the Evidence Act is a copy of:

1. the Indictment: CB 102-103;

2. the Child Interview Transcript of an interview as between DSC [redacted] and SAD2 (in the presence of [redacted], a witness intermediary) undertaken on [redacted], certified by DSC [redacted] on [redacted]: CB 132-154;

3. the ERISP Transcript of an interview as between DSC [redacted] and the deceased undertaken on [redacted], certified by DSC [redacted] [redacted]: CB 155-174;

4. the Police “Facts Sheet” pertaining to the deceased’s arrest on [redacted]: CB 175-179; and

5. the signed statement of DSC [redacted] dated [redacted] referring to exhibits of the record of the ERISP Interview and the Child Interview: CB 180-182.

156. The affidavit evidence of [Q] was:

1. of disclosures made by SAD2 to her - specifically that on [redacted] “SAD2 disclosed to me the Deceased had sexually assaulted her” (CB 87[15]); and

2. that the deceased gave evidence on the criminal trial denying the sexual assault allegations: CB 88[22].

157. That evidence is prima facie hearsay and objectionable as to form but was admitted without any objection. For his part Mr Ellison SC accepted that the deceased had not denied the allegations in the ERISP Interview but had done so in giving evidence in the trial: T 44.10-.13.

158. The “Facts Sheet” details 10 alleged offences occurring between approximately [redacted] when SAD2 [redacted]: CB 176-179. [Q], though not present in court, believes that SAD2 gave evidence at the trial on behalf of the prosecution, seemingly by the police recorded Child Interview being played to the Court: CB 87[21], 92[56(q)].

Determination

159. The outline of opening submissions from SAD2’s counsel elided two matters which need to be distinguished, namely whether sexual assault occurred and the consequences of such assault occurring. Their submission as to SAD2 having risks of psychiatric disorder and the greater moral obligation of the deceased was based on the premise or assumption that sexual assault occurred: CB 311[30],[31].

160. The Child Interview was conducted in a context of SAD2: (a) being alerted to the difference between a truth and a lie: CB 133-134; (b) having an initial “agreement” (strictly speaking a type of undertaking on SAD2’s part) prior to questions regarding matters which became the subject of the sexual assault charges “only to tell the truth today”: CB 134; and (c) affirming to DSC [redacted] that “everything you told me today [has] been the truth”: CB 154.

161. In the Child Interview Transcript, there are statements by SAD2 that the deceased touched her “in not good places” being around her chest and in between her legs: CB 134-137, 142. There is a specific statement that the deceased placed his hand inside her underwear and touched her vagina: CB 146, 148-149.

162. However, in these proceedings there was no sworn evidence adduced by SAD2’s legal representatives from SAD2 of any sexual assault. This appears to have been a deliberate forensic decision on the part of SAD2’s legal representatives: T 39.38-.42, 40.34-.35. Further, no transcript of the evidence from the hearing of the deceased’s trial was adduced in this case.

163. Thus, the hearing proceeded on the basis that the plaintiff’s legal representatives had no opportunity to question SAD2 regarding the allegations (leaving aside the question of whether they might have attempted any cross-examination or indeed even been permitted to cross-examine).

164. No medical evidence was adduced to establish that any such assault on SAD2 had occurred.

165. Despite evidence from [Dr Jones] of general effects of sexual assault, [Dr Jones] was not requested to interview SAD2 or provide any opinion on the effect upon SAD2 of any alleged assault.

166. Further, in the Child Interview Transcript, there is some material in which SAD2 informed DSC [redacted] that on a Sunday morning of the last occasion, she attended [the Sunny End property] house and watched a movie in the living room with the deceased and plaintiff when the deceased asked her to come over for a cuddle and started touching her around her chest: CB 135-136. SAD2 did not know whether the plaintiff could see what was happening: CB 137. Nonetheless, as I observed during the course of submissions (T 32.36-.38), the plaintiff was not cross-examined by Mr Ellison SC regarding that matter.

167. Dr Chapple SC submitted that I should be slow to make findings, having regard to the decisions of Hallen J in Page and Pike J in Bradley and Irvine: T 32.40-.43, 33.15-.17. For the reasons that I have articulated above, I do not accept that the court should be reticent to make findings or should not make findings on an allegation of sexual assault to the extent that it bears upon a real issue in the proceedings.

168. Dr Chapple SC understood that SAD2’s legal representatives were urging the Court to make a positive finding that a particular offence had occurred: T 33.10-.11. He submitted that, in those circumstances, it was incumbent upon SAD2’s legal representatives to put all of the evidence that was before the Court in the criminal proceedings into evidence in these proceedings and that their failure to do so meant that it is entirely inappropriate in civil proceedings for the court to make a finding that the offence actually occurred: T 33.7-.17.

169. An attempt by SAD2’s legal representatives to prove (on the civil standard) sexual assault might not necessarily have required them to adduce strictly speaking “all of” the evidence in the criminal proceedings. However, the tenor of the submission to the extent that it emphasised an obligation to place evidence before the Court has force. In accordance with s 140 of the Evidence Act, it was incumbent upon SAD2’s legal representatives to prove the matter contended for on the balance of probabilities by sufficient evidentiary means.

170. To the extent that Mr Ellison SC pressed a submission to the effect that it was open to me to draw an inference of an admission of guilt (of sexual assault) from the deceased’s suicide (T 41.3-42.43), I decline to do so. Dr Chapple SC submitted it would not be a fair inference to draw, in that there are a number of possible and cogent reasons as to why a person might act that way (suicide): T 33.37-34.2. One possibility which I ventured during submissions is that the suicide could be consistent with the deceased being innocent but nonetheless fearful that the verdict may go against him and he did not wish to face the prospect of being sentenced to prison as being a child sex offender: T 33.28-.35.

249. Dr Chapple SC contended that SAD2’s situation is not one of any immediate pressing financial need: T 32.20-.22.

First defendant’s submissions

258. Mr Morrison on behalf of the first defendant provided a written outline of submissions that essentially focused on the first defendant's costs. No submissions were directed to the substantive merits or otherwise of the plaintiff’s claim: CB 304-306. Nor, in light of the carriage order, do I suggest that Mr Morrison ought to have addressed the merits of the plaintiff's claim.

SAD2’s submissions

259. SAD2's counsel opposed any provision being made for the plaintiff, submitting that the claim should be dismissed on the basis that the deceased’s moral obligation to the plaintiff was completely outweighed by his moral obligation to his daughter: CB 308[8], 311[26], 312[33]; T 25.20-.31.

260. They emphasised that it is important to note that despite the fact that the deceased may have made his Will (just under) 2 years after commencing his relationship with the plaintiff, he made no provision for her and emphasised that his sole focus, even after the sexual assault allegations were made against him, was to provide for SAD2: CB 308[11]-309[14].

261. Dr Chapple SC responded by saying that it is not surprising that the deceased made his Will as he did. First, because at that time he had only been in a relationship with the plaintiff for less than two years and the plaintiff had only moved in to live with him on a full-time basis for less than a year. Secondly, SAD2 was only 7 years old at the time and, with the de facto relationship in its infancy, it is not surprising that he would wish to provide for his daughter: T 28.47-29.8.

262. SAD2's counsel contended that there is no evidence that the Plum Superannuation interest will not vest in the plaintiff or that SAD1 has sought to contest the nomination to protect the estate. They submit that in any event, the Plum Superannuation sum is well beyond what the plaintiff might appropriately be awarded: CB 309[16]-[17].

263. Mr Ellison SC did not accept that the plaintiff should get provision for an unencumbered house in [redacted]: T 38.34-.35. Whilst the plaintiff did not strongly press a claim for provision that would allow her to undertake some farming enterprise, Mr Ellison SC submitted that she was in no position to manage, fund or otherwise devote time to a proper farming enterprise and, further, that even a house on a lifestyle block was not appropriate by way of provision, if any provision be awarded: T 38.35-.44. On his view, it was important to note that the plaintiff has never owned accommodation since she separated and had a settlement with her first husband: T 38.46-.47.

264. Mr Ellison SC submitted that there is no reason why the plaintiff’s mother cannot live in any house which the plaintiff might purchase: T 38.25-.26.

265. SAD2’s counsel submitted that the death of the deceased has deprived SAD2 of the ongoing financial support she would likely have received from the deceased through her formative years in school and tertiary education and that it is a significant loss for her: CB 311[27]-[28].

266. SAD2’s counsel contended that the Court should reject a submission that the financial position of [Q] supports the plaintiff’s claim: CB 311[29]. It is not clear to me that the plaintiff’s counsel advanced any such proposition. In any event, the relative strength of [Q’s] financial position as a person who has an obligation to support SAD2 is clearly relevant to assessing SAD2’s claim as a beneficiary to retain the benefits given to her under the deceased’s Will.

267. SAD2’s counsel observed that the interest that [Q] has in a discretionary trust is no “interest” at all: CB 311[29]. Speaking generally, the rights enjoyed by a discretionary object are ordinarily not regarded as property: Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd [2017] NSWCA 184; (2017) 106 ATR 151 per Leeming JA at [17]. However, it would not be right to assume the object of discretionary trust has no rights of value. As Leeming JA observed at [17]:

The object of a discretionary trust is a person to whom, in the exercise of discretion by the trustee, a distribution of trust property may be made without breach. Moreover, the object of a discretionary trust has rights against a trustee, including rights to compel the proper administration of trust, to restrain an actual or apprehended breach of trust and to be considered in the exercise of the trustee’s discretion. The rights may be more substantial. In some (albeit relatively exceptional) circumstances leave may be granted to a discretionary object to bring a derivative suit on behalf of the trustee: see El Sayed v El Hawach (2015) 88 NSWLR 214; [2015] NSWCA 26. Speaking generally, the rights enjoyed by a discretionary object are neither assignable nor transmissible by will or operation of law; they are ordinarily not regarded as property.

268. Without abandoning or detracting from his submission that no order for provision should be made for the plaintiff, Mr Ellison SC at the end of oral submissions appeared to submit that if any amount was awarded, the provision should be no more than in the range of $200,000-$250,000 as a lump sum: T 43.17-.22.

Determination

Issue 1: Has adequate provision not been made for the plaintiff?

269. I have had regard to the nature of the relationship between the plaintiff and the deceased which I have addressed above in relation to the plaintiff’s eligibility.

270. I accept the plaintiff’s evidence regarding her financial circumstances.

271. During the deceased’s lifetime, the plaintiff contributed towards the mortgage on the property. Mr Ellison SC submitted that after the deceased’s death until March 2024 (a period of approximately 20.5 months), the plaintiff did not contribute to the mortgage and all that she did was pay the rates and taxes: T 39.6-.8. I have had regard to the fact that that is a benefit for her.

272. Mr Ellison SC submitted that “one has to be careful about property prices” in the context of submissions that the current value of the deceased’s property had more than doubled in value since the time that it was purchased in 2019: T 39.22. However, he did not strongly dispute that the plaintiff had contributed her labour to improvement of the property (T 39.32-.33) though qualified that to an extent, asserting that “she had to pull her weight”: T 39.13-.14. The plaintiff’s contribution in relation to the work which she says she did to the property outlined by her and other witnesses was not disputed as I have indicated above. I accept the plaintiff’s evidence regarding her contributions which is broadly corroborated by the evidence of [OP], [XZ] and [LN]. They are more than minimal contributions to the maintenance and improvement of the deceased’s property and I have had regard to those contributions.

273. It will be recalled above that SAD2's counsel submitted that the conduct of the plaintiff should be carefully scrutinised by the Court by reference to four specified matters (CB 310[18]):

The conduct of the plaintiff should be carefully scrutinised by the Court. The evidence will show that, since the death of the Deceased, the plaintiff has:

a. failed to pay rent for her occupation of the Deceased's home with her mother until recently;

b. permitted others to occupy the second house on the Deceased's property, apparently without charge;

c. failed to account to SAD 1 for the $70,000 which the Deceased deposited into her bank account for the purpose of allowing him to obtain government grants; and

d. failed to account to SAD 1 for the plant and equipment which it is understood was purchased for $109,308 for the Deceased.

274. In saying that the plaintiff’s alleged conduct should be scrutinised, SAD2’s counsel did not specify in particular the precise way in which this alleged conduct should inform the determination of her claim.

275. It seems to me there are two aspects of the submission that need to be distinguished. The first is whether the plaintiff engaged in any inappropriate conduct in relation to the 4 challenged financial items; the second is the relevance of the amount as a financial resource available to the plaintiff.

276. The plaintiff is not given any right to occupy [the Sunny End property] under the terms of the Will. The legal basis on which the plaintiff was occupying the property during her relationship with the deceased was not expressly examined on the hearing. Nor do I suggest that it should have been in any great detail. I infer that the arrangement likely resembled an express or at least implied revocable licence from the deceased. If that be the position, which prima facie appears to be the case, technically any such licence would have been automatically terminated by the death of the deceased. Thus, from the date of the deceased’s death, on termination of the licence, the plaintiff essentially became a trespasser in the estate property: see e.g. Public Trustee v Bellotti (1986) 4 BPR 9196 at 9203 per Cohen J, citing Terunnanse v Terunnanse [1968] AC 1086 at 1095 per Lord Devlin for the Board.

277. Leaving the aside the legal niceties of rights of occupation, there was no genuine dispute that had she not occupied the deceased's home, she would have incurred expenses (with a concomitant need or claim) for occupation elsewhere. I have referred to the evidence by which the plaintiff's occupation of [the Sunny End] farm has now been formalised in consultation with SAD1 as executrix and there is no dispute that the plaintiff has paid an amount for rent and agistment at least for the period between 1 March 2024 and 2 August 2024: CB 83[30]. To the extent that it is asserted that the plaintiff engaged in some grievous inappropriate conduct which impacts her claim by remaining in the property for some period of time without paying rent, I am not satisfied that that is the case. To the extent that the plaintiff received a financial benefit by remaining in the property without having to pay some form of occupation fee for a period of time, I have had regard to such benefit in assessing the plaintiff’s claim.

278. [V’s] residence on [the Sunny End property] was in all likelihood based on a similar arrangement with the deceased. It is not necessary to determine whether it was an express or implied revocable licence of the deceased terminating on the deceased’s death. Her continued residence on the property after the deceased’s death was no doubt a benefit to her and also to the plaintiff. To the extent that it was such a benefit I have had regard to it in assessing the plaintiff’s claim.

279. The complaint that the plaintiff permitted others to occupy a second house on the property apparently without charge was not particularised in the submissions, though I assume it is based on evidence of [Q] that she was “informed and believe[s]” that the [Smith] family resided in a second dwelling on the farm in the latter half of 2022 and that she was not aware of any disclosure of rent paid for the occupation of the granny flat: CB 92[56(h)(i)].

280. The plaintiff replied that there had been no income from the second dwelling and that the [Smith] family stayed at the farm to support her in the aftermath of the deceased's death and that they helped her with farm work, including slashing paddocks and moving cattle: CB 37. It suffices to say that I am not satisfied that this matter materially affects the assessment of whether to make a family provision order and the nature of any such order.

281. In relation to the claim that the plaintiff failed to account for the $70,000, there are two aspects that need to be distinguished. The first is whether the plaintiff engaged in any inappropriate conduct in relation to the deposit; the second is the relevance of the amount as a financial resource available to the plaintiff.

282. In relation to any suggestion that the plaintiff engaged in any inappropriate conduct in relation to the deposit, I reject any such suggestion. It may be noted that the plaintiff herself disclosed the deposit by the deceased in her initial affidavit: CB 21[34]. Whilst I did wonder whether there was any flavour of suggestion that the deceased or perhaps the plaintiff might have acted inappropriately in respect of the deposit which the plaintiff described as “for the purpose of reducing his assets to obtain government grants”, the plaintiff was cross-examined in respect of the payment and Mr Ellison SC did not particularly identify any offence that the plaintiff might have committed, or any matter that might render her liable to a civil penalty. Highly experienced counsel for the plaintiff did not request me to inform the plaintiff that she might have grounds for making some objection to any of the questioning: see ss 128, 132 of the Evidence Act. No grant was ever obtained and there was no further suggestion by Mr Ellison SC that the plaintiff had acted inappropriately. The plaintiff frankly acknowledged that she retained whatever balance of the amount in her account.

283. The high point of Mr Ellison SC’s submission in this regard was that the plaintiff received the amount into her bank accounts which she kept: T 39.14-.15, 39.34-.35. In relation to the relevance of the amount as a financial resource available to the plaintiff, I have had regard to it and in particular had regard to the fact that whatever balance remains in the plaintiff’s accounts (the precise amount of such balance is not the subject of evidence) has been or (if any is left) is a financial resource available to the plaintiff.

284. Lastly, in relation to the alleged failure to account to the executrix for plant and equipment, the submission referenced items “which it is understood was purchased for $109,308 for the deceased” citing annexure A to the plaintiff's third affidavit which were relevantly the plaintiff's financial statements for the year ended 30 June 2024. In the plaintiff's balance sheet in those statements, there is reference to plant and equipment at cost in the amount of $109,308: CB 283 and in particular CB 284. Eleven items are listed in the depreciation schedule. At least five of those items were purchased after the deceased's death. No attempt was made by Mr Ellison SC to demonstrate through cross-examination or otherwise, that any of the eleven items are property of the deceased and as far as I can tell none of those eleven items correspond with the plant and equipment items in the depreciation schedule for the deceased for the year ended 30 June 2022 at CB 213-215. The fact that [Q] believes the deceased owned such items of plant and equipment and that they remain unsold and on the farm does not assist Mr Ellison SC’s submission: CB 97[22].

285. Prior to the hearing, there was no disclosure of [V’s] financial position, which fact was noted in the written submissions for SAD2: CB 311[25]-[26].

286. However, just prior to the hearing, the plaintiff’s legal representatives served an affidavit by [V] setting out her financial circumstances which (as noted above) was ultimately relied upon in the proceedings. [V’s] financial resources are meagre although potentially of some relevance to assessing the plaintiff’s claim (see ss 60(1)(b), (2)(e) Succession Act), as I have earlier noted, and I have had regard to them.

287. I have had regard to all of the evidence which I have summarised above regarding SAD2’s position. As at [redacted], SAD2 was not receiving any treatment and, from [Q's] perspective, was well supported by her teachers, peers and [Q]. Despite [Q’s] concern that the deceased’s suicide has traumatised SAD2 and may affect her psychological welfare in the future with possible requirements for economic support, medical treatment and other assistance (CB 93[58]), other than the “generalised” evidence from [Dr Jones], there is no specific evidence of any impact in relation to SAD2: T 25.33-.44. I have addressed this above.

288. As I have indicated above, apart from the outline of SAD2’s financial position drawn principally from the evidence of [Q], the evidence discloses that SAD2 had as at 30 June 2022 an unpaid entitlement to a sum of $553,157 from the Trust, not merely the sum of $121,661 (T 31.48).

289. The difference between the balance actually due to SAD2 of $553,137 and the sum of $121,661 (which the plaintiff’s counsel referred to as being SAD2’s entitlement: T 31.48) amounts to $431,496. This is a very significant financial resource apparently available to SAD2 about which no submissions were made.

290. There is nothing in the evidence which suggests that SAD2 is not entitled to the full amount of the sum of $553,157. There may be tax consequences in respect of it. Neither party outlined to me what, if any, tax consequences there might be. However, as noted above, even if there are tax consequences, on any view of it, SAD2’s entitlement from the Trust is well in excess of $121,661 and is a financial resource apparently available to SAD2.

291. In addition, SAD2’s counsel submitted that (CB 311[32]):

Furthermore, the moral duty which the Deceased owed to [SAD2] is informed by the fact that [SAD2] has not sought common law damages against the Deceased's estate for her abuse. As the annexed sample of awards of damages from this Court in cases of child sexual abuse shows, such damages, while being necessarily fact specific and varying accordingly, can nevertheless be very significant. A claim made by [SAD2] for common law damages had the potential to consume, a large part, if not all, of the estate, rendering the plaintiff's claim irrelevant.

292. Four cases were cited in the schedule. I do not propose to set out the details of the schedule.

293. To the extent that those cases are deployed to try and quantify the loss suffered in some way, Dr Chapple SC gave a twofold response.

294. First, he noted that there is a long line of authority that provision for plaintiffs is not a case of compensation for past wrongs: T 34.46-.50. The point of the submission is that the assessment of the outcome of these proceedings, the claim of the plaintiff to provision and the claim of SAD2 to retain the benefits given to her under the Will, must be determined according to family provision principles. I accept that submission.

295. Secondly, he submitted that any finding regarding what is appropriate for the plaintiff is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases, citing Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 124-125 per Barwick CJ, Kitto and Menzies JJ; [1968] HCA 62 (Planet Fisheries): T 34.50-35.18. I accept that submission. Behind the principle in Planet Fisheries lies the basic proposition that each case turns on its own facts, such that simple comparisons between awards in different cases are likely to mislead: see State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 at [322] per Beazley P (McColl JA at [348] and Meagher JA at [359] agreeing).

296. Further, there are at least two reasons why I do not accord that particular submission of SAD2’s counsel any significant weight in determination of the outcome.

297. First, I have found that the fact of “abuse” has not been established in these proceedings (as distinct from whatever may be SAD2’s belief about the matter).

298. Secondly, even if I be incorrect in not finding that there had been one or more sexual assaults, it is not clear to me precisely how the deceased’s moral duty is informed by SAD2’s failure to seek common law damages.

299. The tenor of the submission is that a potential common law damages claim would lead to an outcome so large as to create a debt owing by the estate to SAD2 which would preclude any meaningful family provision claim by the plaintiff.

300. Conceptually, it is possible that a tutor on behalf of SAD2 could have commenced proceedings to seek damages, which might or might not have been successful. Even if the proceedings were commenced and successful, there is no evidence that the potential damages on such proceedings would be so large as to create a debt owing by the estate to SAD2 which would preclude any meaningful family provision claim by the plaintiff. In any event, such proceedings, if brought, might be a degree counter-productive because if the cost of running the proceedings were significant and there was an order that the deceased’s estate pay SAD2’s costs, practically speaking, she would bear the burden of that cost herself.

292. On the hearing, Mr Ellison SC seemingly acknowledged the futility of any claim for damages in circumstances in which SAD2 is entitled to the whole of the deceased’s estate in any event: T 34.42-.43.

293. The plaintiff was dependent upon the deceased for accommodation. Her existing resources do not enable her to buy accommodation. The analysis performed by Dr Chapple SC of the plaintiff’s existing expenses, for the purposes of pressing a claim for accommodation, excluded rent. However, it is clear based on the plaintiff’s expenditure (CB 49) that if she had to continue paying some degree of rent, her expenses would outstrip her net income. She is unable to access her superannuation until she retires.

294. Overall, I am satisfied that the failure of the deceased to make any provision for the plaintiff in his Will has left the plaintiff without adequate provision.

Issues 2 & 3: What, if any, order for provision should be made for the plaintiff?

304. In considering the question of what, if any, order for provision should be made for the plaintiff, I have considered all of the above evidence and in particular the s 60(2) factors, especially those emphasised by the parties’ counsel.

305. I am satisfied that in all the circumstances, the plaintiff ought to be given provision that would permit her to acquire accommodation together with associated expenses. It seems to me that that could be done without unduly impacting upon SAD2’s position.

306. Ideally, as noted above, the plaintiff seeks a property large enough to allow some grazing paddocks so that she can continue to run some cattle and possibly also explore an option to install a small residence to accommodate Airbnb guests or an area for functions such as weddings.

307. Whilst I accept that the plaintiff has some concern regarding her ongoing ability to have employment with [redacted], I am not persuaded that there is a significant risk that the plaintiff will be without any employment.

308. Further, leaving aside any lifestyle choices regarding cattle, any form of supplementation of the plaintiff’s income through running cattle does not seem to be realistic. Nonetheless, it seems to me not unreasonable that the form of accommodation the plaintiff seeks might allow her some possibility of supplementing her income through accommodating Airbnb guests or an area for functions such as weddings.

309. The plaintiff’s counsel submitted that the plaintiff wishes to remain living in the area surrounding [redacted] and would like to purchase a property large enough to accommodate her mother in a container home on the same block but separate from the house: CB 303[37]. They emphasised that the deceased with the plaintiff made plans for [V] to live at [the Sunny End property] with them, purchasing the container home (using funds provided by SAP’s aunt) and in so doing, the deceased assumed a degree of responsibility for the future accommodation of [V]: CB 300[25]. During the course of submissions Dr Chapple SC emphasised that the living arrangements of the deceased’s mother with the plaintiff and the deceased informs the nature of provision: T 37.7-.17.

310. It is not clear to me that any distinct plans were finalised as between the plaintiff and the deceased. Even if they were, strictly speaking, the plaintiff has no legal obligation to maintain her mother, certainly not in the same way as she would have in the case of a minor child. I do not think that the deceased assumed any legal responsibility for the future accommodation of [V].

311. In relation to any moral responsibility, I consider that the outline of written submissions of the plaintiff’s counsel puts the matter appropriately by qualifying the notion of any assumption of responsibility in terms that “it is accepted that any moral obligation in that respect is secondary to, and subsumed within, the moral obligation that the deceased owed to SAP”: CB 300[25]. I intend to proceed on that basis.

312. The evidence regarding the plaintiff’s proposed accommodation was not entirely satisfactory. There was a limited sample of types of accommodation adduced to give the Court some indication of the range of properties available and their costing. [The Sunny End property] is 200 acres. The four examples of recent property sales adduced by the plaintiffs showed varying sizes of properties. The [redacted] property is 262 acres, [redacted] property is 5 acres, the [redacted] property is 118 acres and the [redacted] property approximately 68 acres: CB 51[20(e)], 123-126; T 21.4-.30.

313. In my assessment, a figure of $1.175 million is the appropriate figure by way of provision for the plaintiff broadly speaking to cover the purchase of accommodation and associated expenses.

314. I am satisfied that provision in that amount will not unduly impact SAD2’s position having regard to her existing circumstances and going forward.

Conclusion

Provision

315. A family provision order must amongst other matters specify the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided: s 65(1)(c) Succession Act.

316. In the absence of an order designating property as notional estate there would need to be order for the legacy to be paid out of assets of the estate which, as intimated above, would likely be proceeds of sale of [the Sunny End property].

317. No order has specifically sought that the amount of provision be paid out of the superannuation proceeds. Currently, as such proceeds do not strictly speaking form part of the estate, there would need to be a designating order in respect of any such superannuation funds. While there is some evidentiary basis for making a designating order, it is not precisely clear because the relevant superannuation fund documents which bear upon it have not been adduced in evidence.

318. The better course is to give the parties some period of time to discuss the precise source of funding of the legacy and to enable the parties some period of time to formulate orders in that regard. There may be some careful wording that is appropriate regarding the source of the payment of the amount of provision, particularly in light of what has been stated above in respect of the deceased’s superannuation and the relevant undertaking foreshadowed by Dr Chapple SC. Mr Ellison SC appeared to accept that that was appropriate course and that if any order for provision were to be made, it may be appropriate that it be paid from the superannuation: T 43.39-.49.

319. During the hearing Mr Ellison SC intimated that there may be some possibility that the executrix would seek to pass administration of the estate or what is left of it and administration of any trust for SAD2 to the tutor and another person: T 44.13-.25.

320. I light of all of the above, I will ask the parties to bring in short minutes of order to give effect to my indications regarding the amount of order of provision and any ancillary orders.

Costs

321. Prima facie, the plaintiff’s costs, calculated on the ordinary basis, and the second defendant’s costs calculated on the indemnity basis ought to be paid out of the estate. I propose to make such orders subject to giving any party opportunity to propose a variation if there is good reason to do so such as an Offer of Compromise or Calderbank offer having been served.

322. Both the plaintiff’s counsel and SAD2’s counsel touched upon the question of the first defendant’s costs in the written outline of submissions. The plaintiff’s counsel submitted that the plaintiff is concerned that duplication of costs between the first and second defendants has the effect of reducing the available pool of assets from which provision for the plaintiff might be made: CB 295[8]. However, there was no evidence adduced by the plaintiff regarding any such duplication of costs and that submission was not further developed by the plaintiff’s counsel.

323. SAD2’s counsel submitted that the first defendant’s costs should be limited in time and amount to the period which preceded the appointment of SAD2 to represent the estate in the proceedings: CB 312[33].

324. Mr Morrison at the outset of the hearing (T 11.43-12.33) and Mr Ellison SC at its conclusion (T 43.24-.28) admitted of the possibility that that there might be some agreement as to a particular figure for the executrix’s costs.

325. On 5 December 2024, Mr Gayler (the solicitor for the second defendant) sent a letter to my Associate, noting that no such agreement had been able to be reached regarding the quantum of the first defendant's costs. There was some correspondence between the respective solicitors for the parties and my Associate and, despite an initial request that the matter be relisted for brief mention on 17 December 2024, that request was not pursued by Mr Gayler: email letter to my Associate dated 9 December 2024.

326. The precise reason why a carriage order was sought is not clear on the evidence. Possibly, part of the reason why [Q] sought to intervene in the proceedings on the part of SAD2 is that she believed that there is a close relationship between the executrix and the plaintiff from which the plaintiff has benefited including permitting the plaintiff to remain on the farm without cost since the date of the deceased’s death: CB 92[57].

327. I do not propose to plumb the depths of why the intervention was made. Whilst the usual course is that an administrator (under which term I include in executrix) conducts the defence of family provision proceedings, it is not unusual for a beneficiary who receives the entirety of the estate to seek to have the conduct of proceedings to lead particular evidence bearing upon the position of that sole beneficiary.

328. In any event, whilst there was objection by SAD2’s counsel to costs, (which regrettably has not been able to be solved) the executrix was not cross-examined regarding her conduct in the proceedings and the incurring of costs after the carriage order had been made. Likewise, Mr Lynch (her solicitor) was not cross-examined regarding the costs incurred after the carriage order had been made.

329. In those circumstances, prima facie, I consider that the first defendant’s costs on the usual indemnity basis after the carriage order should be paid out of the estate. If SAD2’s legal representatives wish to seek an otherwise order they can apply to do so at their own risk as to costs of any such application.

Orders

330. In the above circumstances, the orders of the Court are:

1. Order pursuant to s 8(1)(a) Court Suppression and Non-publication Orders Act 2010 (NSW), subject to further order, that the reasons for judgment should be restricted and proceedings suppressed generally including suppressing names of the parties;

2. I direct the parties to bring in short minutes of order by 4:00 PM on 17 March 2025 to give effect to the reasons for judgment, in particular in relation to the indication of the appropriate amount of provision for the plaintiff, any ancillary orders and my provisional views regarding costs, including any mechanism to resolve a dispute regarding costs;

3. If the parties are unable to agree on proposed short minutes of order or costs, by the time specified in Order 2 they should provide competing versions of such short minutes of order and short outline of submissions and any affidavit evidence bearing upon such disputes by that same time in which event I will arrange for listing of the matter to address any such disputes.

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Endnotes

Amendments

12 September 2025 - The text of this decision has been published with certain redactions and adoption of pseudonyms.

Decision last updated: 12 September 2025