CHURTON v CHRISTIAN

Mahoney JA. I have had the advantage of reading the judgments of Hope JA and Priestley JA.

I agree that the applications made by Mrs Bailey and Mr Christian should be dismissed. I do not desire to add in that regard to the matters referred to by Priestley JA.

Were the matter to be dealt with by me at first instance, my inclination would be to dismiss the application made by Mrs Christian. But, upon the question of entitlement, my colleagues are in agreement with Master Gressier that an order should be made and, against such unanimity of view, I do not press my doubts to the point of dissent.

In relation to the application by Mrs Christian, I desire to add certain observations of my own.

The extension of the class of persons who may make an application under the Act involves, I think, the adoption by the legislature of a principle different from that on which the original Act of 1916 was based. Applications under the 1916 Act could be made by persons who had essentially a familyrelationship to the deceased. With respect, I cannot see the rationale of the extension made by the present Act as lying in a new or extended concept of family. Thus, the right to apply is extended to any person who 'was, at any particular time, wholly or partly dependent upon the deceased person'. Such a broad category of persons cannot, I believe, be seen as falling within the idea of family.

The significance of this extension and of the fact that the relationship of such applicants is not based upon family ties goes not merely to form but to substance. By legislation of this kind, the legislature takes power to deal with a person's property, not as he or she would wish to deal with it, but because the legislature, through those it empowers, thinks that he or she should have dealt with it differently. It has taken this power not simply because the persons who may apply under the Act are without proper means: the justification is that the deceased

owed a duty to the applicant, that that duty involved that the deceased should have dealt with his property differently, and the failure of duty is to be rectified.

As the cases have shown from the commencement of the history of this legislation, this duty is a moral duty and an applicant who is without the provision referred to in the statute will have provision made for him or her out of the deceased's property only insofar as the deceased has failed to fulfil that duty: see the reference to considerations of this kind in White v Barron 144 CLR 431 at 438-9, and Goodman v Windeyer 144 CLR 490 at 496 et seq.

But it is not every moral duty the neglect of which justifies interference with the property of another. The nature of the duty that has been seen as relevant has been drawn from the kinds of persons who have been able to make an application and their relationship to the deceased. I have referred to this duty as based upon a family relationship between the deceased and the applicant. The duty which has been enforced has been a duty of that kind, that is, the duty which a person owes to members of his family and those relevantly related to him by blood. Other kinds of moral duty, eg, the duty of a student to a teacher or a school or the duty to a generous friend, have not been seen as warranting the intervention of the law in the property and affairs of a citizen.

But the new Act goes further. In a sense, it throws open the area of moral duty which the law sees fit to enforce. It allows interference with a citizen's property in favour of any person who 'was, at any particular time, wholly or partly dependent upon the deceased person'. In determining whether an application should be granted, it will be necessary to determine what duty the deceased owed to the applicant and whether he or she has failed in that duty. And it will therefore be necessary to determine what, for the purposes of the new Act, is the nature of the duty in question. It will, perhaps, be difficult to derive from the nature of the statutory relationship (dependency upon the deceased at some time) the kind of duty which, at his death, the deceased owed. It is, for example, of interest that that relationship is notone in which the deceased was dependent on the applicant and so may have owed moral gratitude but rather the reverse.

What, then, was the nature of the duty owed to Mrs Christian? She falls within one of the extended categories of possible applicants. The extension may have been due to considerations of the kind referred to by Stephen J in White v Barron at 439-40. If that be so, the moral duty is such as is apt to be owed to a former spouse. There may fall to be considered with this the implications of the 'final break' philosophy thought by some to underlie the Family Law legislation. However this be, the new Act recognises that there may be a moral duty to a former spouse and that the failure to fulfil it may warrant interference with what the deceased would have done with his or her property.

Priestley JA has detailed the circumstances which, in his view, cast upon the deceased the duty to provide for Mrs Christian after and notwithstanding the dissolution of marriage. These relate, I think, to the circumstances leading to the dissolution and the incidents of it. I do not dissent from the conclusion that from these a duty arose which was not discharged by the will. I therefore agree with the orders proposed in relation to Mrs Christian's application.

Priestley JA. This appeal raises questions under the Family Provision Act 1982 which now come before this court for the first time.

The Family Provision Act (the 'FP Act') replaced the Testators Family Maintenance Act 1916 (the "TFM Act'). The general purposes of the two Acts, and the relation between them, can be seen from their preambles. The TFM Act was to assure to the widow or widower and family of a testator an adequate

maintenance from the testator's estate; the FP Act was to amend the law relating to the assurance to the family of a deceased person and certain other persons of adequate provision from the estate of the deceased person. Thus the later Act is an amendment of the law introduced by the earlier one, with the same underlying 5 object. Experience with the TFM Act showed that the idea of family which it embodied wasnarrower than actual ideas of family in the community generally; so one of the amendments introduced by the FP Act was the widening of the range of persons entitled to apply for an order for provision to be made for them out of the estate of a deceased person. Some of the persons who did not fall 10 within the range of possible applicants under the TFM Act but whom the FP Act permits to apply are the persons now described in pars (c) and (d) of the definition of 'eligible person' in s 6(1) of the FP Act. These are:

(c) a former wife or husband of the deceased person; or 15 (d) a person - (i) who was, at any particular time, wholly or partly dependent upon the deceased person; and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member; Section 7 of the FP Act empowers the court on application by an eligible

order that such provision be made out of the estate ... of the deceased person as, in

the opinion of the Court, ought, having regard to the circumstances at the time the order

25 is made, to be made for the maintenance, education or advancement in life of the eligible person.

Section 7 is subject to s 9. Section 9(1) provides that where an application is made by an eligible person as defined in pars (c) and (d),

30 the Court shall first determine whether, in itsopinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors.

35 the Court shall not make an order ... unless ... satisfied that ... the provision (if any) made in favour of the eligible person by the deceased person ... is at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.

In the case under appeal, which was decided at first instance by Master

40 Gressier, there were three applicants; one was the son of the deceased person out

of whose estate an order for provision was sought, another was the former wife

of the deceased person and the third was a daughter of the former wife, who had

been from the age of four to twenty wholly or partly dependent upon the deceased

person and during almost the whole of that time a member of the household of

45 which the deceased person was a member. Thus the son, who under the FP Act

is an 'eligible person' within par (b) of the definition, was a person who would

have been entitled to apply under the TFM Act but the former wife and

stepdaughter were among those who could not apply under the TFM Act but by

virtue of pars (c) and (d) of the definition of 'eligible person' were entitled to

50 apply under the FP Act subject to the possible refusal, pursuant to s 9(1), of the court to proceed with the determination of their applications.

In the present case, Master Gressier was asked by Miss Churton, the executrix and sole beneficiary under the deceased person's will, to refuse to proceed with the determination of the applications of the former wife and the stepdaughter. The Master denied this request. In the event he made orders under s 7 in favour of the former wife, (one third of the estate) and the stepdaughter and the son (one third in equal shares between them) leaving one third to Miss Churton. As executrix she appealed against the orders.

The facts giving rise to the various arguments put before this court are, in outline, as follows. The deceased person in the case was Mr Christian. He was born in 1921. In 1948 he and Mrs Board, a war widow, were married. She went to live with him in his house at 52 Martin Street, Haberfield together with her daughter from her first marriage, born in 1943, who is now Mrs Bailey. In 1950 Mr and Mrs Christian had a son, Mr G. Christian. Mr and Mrs Christian and the two children lived as a family household until November 1964. The evidence in the case shows that Mr Christian was a man whose moods frequently changed for reasons not obvious to those around him. He could be pleasant or unkind, generous or mean. He suffered considerably from migraine headaches. He also suffered from arthritis which from a comparatively early age became increasingly severe. These things may have been at least partly connected with his moodiness, but whatever the reason, he appears to have been a difficult man to live with. He took what were regarded by the rest of the household as rigid views on comparatively unimportant matters. It seems that on someoccasions he showed a strong dislike for his stepdaughter. In 1963 he told her to leave the house. Mrs Bailey said that she did not know what his reason was. She left and lived with her grandparents for six weeks when her mother rang her and said she could come home, which she did. About three months later she was sitting one evening in the kitchen in hair rollers and dressing gown. Both her mother and she remember Mr Christian coming in and saying nothing, but later telling her mother that he had been upset by seeing her in that way in the kitchen and that she must leave and never come back. She then left. That event led to arguments between Mr and Mrs Christian and then a particular incident led to Mr Christian telling Mrs Christian also to leave home. Mr G. Christian, then just fourteen, chose to go with his mother. Mrs Christian and her son left the house on 7 November 1964. Mrs Bailey's marriage was a week later.

An element in the happenings in the household about which very little evidence was given, making it impossible to judge to what extent it had any real bearing on events was that late in July 1964 Mr Christian renewed a friendship with Miss Churton. He had known her a good many years before. By the time their paths crossed again in mid 1964, the general circumstances in the Christian household were unhappy; the characteristics mentioned above had produced tension between himself and the other three members of the household together with persistent bickering and quarrelling. When Mrs Christian left the house in November 1964 she lived for a short time close by. Mr Christian asked her to come and see him; he then told her that he had met someone else whom, after the divorce,he would like to marry. He also told her that the other person, who was Miss Churton, was worried she might have been the cause of the break-up of the marriage. He asked Mrs Christian to assure Miss Churton that was not so. Mrs Christian shortly after told Miss Churton that she certainly had not been the cause of the break-up of the marriage. In the course of cross-examination however, when asked about the incident, which seems to have been of a very trivial kind, which resulted in Mr Christian ordering his wife out of the house, she said that

she thought he would have been trying to keep her out of the house because he had met Miss Churton and she thought quite possibly he wanted to end the marriage.

The account of events to this point depends almost entirely on the evidence of Mrs Christian, Mrs Bailey and Mr G. Christian. The court can see those past events only through their recollections and without the benefit of Mr Christian's side of things. However, there was put into evidence the petition for dissolution of his marriage which Mr Christian filed in 1967. In an account of the facts supporting his allegation of desertion, verified by Mr Christian's affidavit, the petition said the marriage had been happy but the parties

began to quarrel because the respondent's daughter, Nancy, would not obey the orders of the petitioner with regard to doing necessary housework such as washing up, cleaning and so forth. On January 5, 1963. Nancy left the matrimonial home on the order of the petitioner and when she did so the respondent moved out of the petitioner's bedroom and said that she did not want to have anything more to do with the petitioner. Later Nancy returned home and there was a reconciliation between the parties.""The petition went on to state that after Nancy left home again Mrs Christian moved into another room, quarrelling continued and Mrs Christian eventually left on 7 November 1964. This is very much the picture presented by the applicants before Master Gressier and I think justifies some confidence in the general reliability of their evidence.

In his petition Mr Christian also set out his financial position and the arrangement that he proposed for his son:

The Petitioner for the past twelve months has averaged less than $40.00 a week net from his business as a plumber. The petitioner suffers from war injuries and he can only work about three days a week. He receives a military pension of $16.80 a fortnight. He has no other income. He has about $200.00 in the Commercial Bank of Sydney at Haberfield. He possesses a Station Waggon (Holden) valued at about $1,500.00 and is paying it off by payments of $31.50 a month. The respondent is employed as a clerk and earns about $38.00.

The petitioner pays the respondent $6.00 a week for the maintenance of the child and he also buys all the child's clothes and pays dentist's bills and all other extra expenses and all school books, and $2.00 a week pocket money. The petitioner will continue the maintenance and payments mentioned above and will assist the child in his education. Garry is now attending Balgowlah Boy's High School.

Mrs Christian did not defend the petition. Terms of settlement were filed in the Supreme Court referring to an agreement to maintain Mr G. Christian and stating that the existing arrangement between the parties should continue, that is that Mr Christian would pay $6 per week to Mrs Christian for maintenance of the child and would pay for the medical, dental, clothing and schooling expenses, until he left school or was self supporting. Mr Christian paid Mrs Christian's costs. MrChristian continued to live at 52 Martin Street, Haberfield. His friendship with Miss Churton continued and remained steady over the years. They became engaged to be married in February 1969. They saw each other regularly, particularly at weekends, but Miss Churton continued to live with her mother and brother in her mother's house. She and Mr Christian never married. When Miss Churton's mother died in 1981 she left the house to her seven children in equal shares, but subject to a right of residence to Miss Churton and her brother, who continued to live in it.

Mr Christian died on 14 April 1984. He had made his last will on 22 March 1972. In it he declared that it was made in anticipation of his marriage to Miss Churton and with the intention that it not be revoked by that marriage. He appointed her sole executrix; she was also the only beneficiary.

Both s 7 and s 9 of the FP Act make it clear that the time at which the Court must determine whether provision 'ought' in the case of s 7 to be made for the applicant or whether the provision made by the deceased person was 'inadequate' in terms of s 9(2) is the time of making or refusing to make the order. Before coming to the questions however whether provision ought to have been made for the various applicants and whether the provision made was inadequate, it is necessary to say something about the requirement in s 9(1) applicable to eligible persons such as Mrs Christian and Mrs Bailey that the court in dealing with their applications shall 'first determine' whether there are factors which warrant the making of the application etc. This provision, which was not in the draft bill prepared bythe Law Reform Commission upon which the FP Act was in large part based, has caused the judges who so far have had to consider it to doubt its usefulness. It raises at least two questions, one of which I will deal with at this stage, and the other subsequently. The first question is the stage of the proceedings at which the court must 'first determine' whether it will proceed or refuse to proceed with the determination of the application. The second is the nature of the 'factors' the court must consider in deciding whether the making of the application is warranted.

The answer to the first question, in the circumstances of the present case, seems to be reasonably plain. All the parties had filed affidavits at the time when the executrix asked the court to determine whether there were factors warranting the applications of the former wife and the stepdaughter. Because s 9(1)'s requirement that the court should first determine whether there were factors which warranted the making of the application had to be carried out 'having regard to all the circumstances of the case (whether past or present)', it is very difficult to see how the court could comply with this command until all the evidence that any party wished to put before it concerning the case was before the court and the court had had an opportunity to have regard to the circumstances shown by that evidence. In the present case, it seems to me that the only course the Master could have followed was to postpone deciding whether there were factors warranting the making of the applications by Mrs Christian and Mrs Bailey until the evidence was complete. It may be that thepersons responsible for having included in s 9(1) as enacted by Parliament the provisions now being discussed, had in mind some kind of preliminary procedure which would enable the court to dispose of applications by persons eligible under pars (c) and (d) lacking any merit, in a preliminary and summary way, thus reducing the possibility of estates being subjected to unnecessary expense by unmeritorious claims from persons who before the introduction of the FP Act could not have made a claim at all. If that was the intention, there is only one kind of case that I can at the moment think of in which the intention might be fulfilled. I mention it only tentatively, because it may be that an executor's duty in relation to the FP Act and the court is inconsistent with the possibility I am about to mention. It is unnecessary to consider the question of the executor's duty in the present discussion. It may have to be explored in future. The kind of case I have in mind is that of an executor, who thinks an applicant within pars (c) or (d) of s 6(1) has no chance of succeeding in the application, and applies to the court for a preliminary hearing of the question whether there are factors warranting the

making of the application, with the idea in mind that it may not be necessary for there to be any evidence from the executor at the preliminary hearing. The court would have power to hear the question separately, but both the executor in making the application, and the court in deciding whether to grant it would need to consider the situation very carefully; leaving aside for future consideration the possible problem of the executor's duty, other difficulties may arise. It is possible that if the executor, in the wish to keepproceedings summary, and confident the applicant can show no warranting factors, does not go into evidence, the result may be, contrary to the executor's expectation, that the court holds there are warranting factors, in which event the idea of saving expense by the preliminary procedure will be frustrated. On the other hand, if the executor goes into evidence, the court, in considering 'all the circumstances of the case' would have to do everything it would do in a full hearing of the application in any event, so that nothing would be gained, and unnecessary costs might overall be incurred. Thus, from the court's point of view, great care would be needed in deciding whether or not to grant the application for a preliminary hearing. If a practice of requesting such hearings were to grow up, there would be a risk of adding two contested hearings to the principal litigation; the application for preliminary hearing itself could turn into an expensive affair; then the preliminary hearing, and if the executor lost there, only then would the final litigation itself be reached.

It may be that as time passes, other situations will become apparent in which it will arguably be appropriate and of practical benefit for the court to make the 'first' determination required by s 9(1) in proceedings distinct from the principal proceedings. I think the court should not be too categorical in the laying down of rules at this early stage in s 9(1)'s history. Certainly, it seems to me, many cases will be like the present one, where the position seems quite clear. In the present case, the evidence being in the state it was at the time the matter was raised, the obligation upon the court tohave regard to all the circumstances of the case before 'first'? determining whether the particular applications should proceed, made it impossible to take any course other than that followed by the Master, that is, to hear the applications in full, and then make the necessary determination before going on to decide the applications themselves.

In order to consider the other questions raised in the appeal, it is now necessary to state the financial position of the estate of Mr Christian, and of Mrs Christian, Mrs Bailey, Mr G. Christian and Miss Churton on 3 December 1986, when Master Gressier stated his reasons for decision in regard to each of the three applicants.

Mr Christian's estate had been a simple one; on his death the house at 52 Martin Street, Haberfield, some furniture, a motor car, cash on hand and in the bank. Evidence shortly before 3 December 1986 showed that by then the estate consisted of the house, valued at $80,000, cash in an investment account of about $28,994 and personal estate of negligible value. The only liabilities were the cost of the proceedings under the FP Act. During the argument of the appeal the court asked to be supplied with an estimate of these. The parties raised no objection, and since the reservation of the decision the court has been told that the solicitor/client costs of all parties of the proceedings including the appeal, total approximately $34,500. It is also agreed that the value of 52 Martin Street, Haberfield is now $115,000, and the estate cash invested is $34,000.

On the evidence before Master Gressier as at 20 November 1986, the nett value of Mrs Christian's assets was $76,277. Her principal asset was a one bedroomed unit at Dee Why, in which she lived, the estimated value of which

was $57,000. It contained furniture to an estimated value of $2,000. She had $2,610 in her bank account and owned a Ford Laser car the estimated value of which was $7,000 and in regard to which she had an outstanding liability of $7,500. Her other asset was an interest in the estate of her late father, in which she had a one-sixth share. The only asset in that estate was a three bedroom fibro cottage at Dee Why. When Master Gressier made his order it was occupied by the sons of a brother of Mrs Christian. She was receiving no income from the estate. The value of the cottage was estimated as about $91,000 giving a value of $15,167 to her share in the estate. In 1971 she was working as a receptionist/telephonist at a firm of solicitors by which she was still employed at the time of the hearing, when she was 61, her after tax weekly wage was $289. Her evidence, accepted by the Master, was that this income was fully used up in paying the various expenses of the unit and in other ordinary living expenses. On the evidence before the Master, and in the light of ordinary experience, her assertion and the Master's acceptance of it appear entirely sound.

Mrs Bailey was married a week after the final separation of Mr and Mrs Christian in 1964. She lived in Canberra with her husband and three children aged seventeen, fifteen and twelve. Immediately before the Master's order, the assets of herself and her husband were valued at $108,615 including their home, estimated value $89,000; their liabilities were $21,412.

Mr Bailey was a teacher of photography at a technical tertiary education institution. His earnings after tax were $406.65. Mrs Bailey, a typist working in the Australian Bureau of Statistics was earning $231.96 after tax. She estimated the family's weekly outgoings to be slightly greater than their income. It would seem safe to assume that she and her husband have no surplus income after their various obligations and ordinary living needs are met, particularly in light of the ages of her children, for whom the parents have hopes of tertiary education. In the course of her evidence before the Master some details emerged of a small part time business run by her and her husband, which incurred a loss for the year ending 30 June 1986 in an amount of $4,739.68. Efforts to get clear details of the finances of this business, which involved door to door selling, while she was in the witness box, were unsuccessful. Although this does not seem to have been any fault of Mrs Bailey's, whose evidence as recorded shows fairly clearly that she had no grasp of the financial side of the business, the details were left obscure.

The evidence bearing upon Mr G. Christian's financial position related to that position as it was immediately before the making of the order by the Master. Mr G. Christian was a tradesman plumber, who had three children. Two were the issue of a relationship, of which his father had disapproved, which lasted from 1972 to 1979. At the time of the hearing these two children were living with their mother at Batemans Bay. The third child was born in 1980. He married the mother in 1981; their marriage was dissolved in 1985. His former wife lives with their child at Lismore. He pays $325 a month in all towardsthe maintenance of his children from what was recorded in his income tax return for the year ended 30 June 1985 as a taxable income of $11,716. No income figure was available for the year ended 30 June 1986. He expected his taxable income would be approximately the same. In addition to the monthly maintenance for his children his other current expenses on a monthly basis were approximately $987. These included payments on a first and second mortgage on his home totalling $564.40 monthly. The balance consisted of payments for telephone, electricity, gas, council rates and water rates, and appear to be reasonable. His principal asset was

a cottage at Avalon with an estimated value of $90,000. Motor vehicles, (utilities for his business), together with tools and furniture were estimated to be worth a further $20,000. The amount owing on the two mortgages totalled $36,450. In addition there were further debts to banks totalling slightly more than $17,000. He tried to visit his children regularly and as two of them were living on the mid south coast and the other on the far north coast of the State, the cost of his visits was quite high.

The evidence relating to Miss Churton's financial circumstances showed she was born in 1926 and worked as a clerk until she retired in November 1984 in part because of arthritis in her fingers. She estimated the value of her one-seventh interest in her mother's estate as about $8,000. She owned debentures and bank accounts to a value of about $81,000 the bulk of which derives from a sum of $75,000 she received on retirement. She was owed $4,259 by a nephew. She was not charging the nephew any interest and there was no fixed date forrepayment of the loan. In January 1986 she had given $5,000 to a sister who was ill. Her income from her investments was about $200 a week and she said her weekly liabilities were slightly more than this. As in the case of Mrs Bailey it seems safe to assume that she had no surplus income after meeting all her ordinary needs.

The second of the two questions arising under s 9(1) in regard to Mrs Christian and Mrs Bailey can now be approached. What are warranting factors within the meaning of the subsection? I agree substantially with the analysis made by McLelland J of this question in Re Fulop Deceased (1987) 8 NSWLR 679 at 681:

... the subsection appears to be premised upon a distinction between "factors which warrant the making of the application" on the one hand, and circumstances which would justify the making of an order granting the application, on the other: otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are "factors which warrant the making of the application" within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (cf the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that "factors" referred to in the subsection are factors which when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object oftestamentary recognition by a deceased.' (at 681)

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

In the present case Mrs Bailey seems to me to be a clear example of such a person. She lived as a member of Mr Christian's family household from about the age of five until she was twenty. Asked by Mr Christian in 1963 to leave the house, for what appears a trivial reason, she was later told by her mother she could come home. To all outward appearances, and in fact, until she was twenty, 52 Martin Street, Haberfield was her home. I think most people would regard the

relation between Mr Christian and Mrs Bailey as being either that of father and daughter, or if not precisely that, so close to such a relationship as to make no practical difference. It may be that it should be inferred from Mr Christian's behaviour towards Mrs Bailey that he formed a dislike for her; that would no more exclude her from the class of persons who would ordinarily be regarded as natural objects of testamentary recognition than it would a natural daughter disliked for some reason by a parent. In a case where a parent had a sound reason for disliking either a child or a stepchild, that might, dependingon the precise circumstances, justify the parent in not making provision for that child or stepchild, and the court also in subsequently refusing to make any provision; but the child could not be excluded from applying for the court's consideration of the case, and similarly, I do not think a stepchild, at least when in a position virtually indistinguishable in important respects from that of a child, should be shut out from having the court consider that stepchild's case, even if the final result is the refusal of an order.

Mrs Christian is a member of a class in respect of whom warranting factors may often be more difficult to find. It is common experience that divorce sometimes brings to an end all links between previously married people. In such cases, warranting factors might well be expected usually to be absent, although this need not be universally so. On the other hand, divorced persons may remain on close terms, sometimes little different from those on which they lived when married. In every case it is necessary to examine the actual relationship between the two people concerned, as far as possible without preconceptions based only on the fact of divorce.

In the case of Mr and Mrs Christian, their lives remained to a noticeable extent connected notwithstanding the separation and divorce. Mrs Christian had the responsibility of looking after the son of the marriage; Mr Christian contributed financially to his maintenance. After both the separation and the divorce Mr and Mrs Christian stayed in touch with one another; this was both because of the need to discuss matters having to do with their son and also on a more general basis.

One would make gifts to or otherwise get in touch with the other on occasions such as Christmas, Mothers Day, and birthdays. When Mrs Christian needed items of furniture or household appliances, Mr Christian would give them to her, sometimes secondhand, sometimes new. He occasionally did plumbing jobs for her, where she was living. During the first few years after the separation Mrs Christian did domestic chores for Mr Christian such as looking after his clothes and sewing. This was apparently on an occasional rather than a continuing wifely basis. Nevertheless, the evidence, although not voluminous, indicates that there was a moderately good relationship on foot between the parties once the quarrelling arising out of their living together had been ended. At a fairly low level of intensity something of a family relation persisted between the two parents, the stepchild and the child. One example given by Mrs Christian was that a bassinet which Mr Christian had made for their son when he was a baby was repainted by Mr Christian and given to Mrs Bailey when her first child was born. An element of co-operation in this gift is shown by the fact that Mr Christian asked Mrs Christian to make a new cover for the bassinet, as part of the gift, which she did.

Another indication of continuing contact between Mr and Mrs Christian is that in 1971 he made a will in which Mrs Christian was named as the sole beneficiary. If she failed to survive him, by this will he made their son his sole beneficiary. This will was revoked because of Mr Christian's disapproval of the son and his

girlfriend living together. The evidence does not explain why, because of his views about theson, when he came to make a new will he also changed his previous intentions and left his former wife out of it, making Miss Churton his sole beneficiary. However, the fact of the 1971 will is one of the clear indications in the evidence of continuing contact between the parties and of their mutual recognition that each was, to some degree, of concern in the other's life.

Another minor indication of recognition of family ties happened in 1983 when the husband of Mrs Christian's sister died. Mr Christian acted generously and kindly to the sister on this occasion; he told her at the time that he would go down to see his former mother-in-law (Mrs Stevens) whom he referred to, as he had always done, as 'Mum'. Of course, Mrs Stevens was not only his former wife's mother, she was his son's grandmother, and I do not attach more than passing significance to this incident; nevertheless, it indicates the persistence of a family-type relation, probably as I have said, of low intensity, in which Mr and Mrs Christian were both involved.

The matters I have mentioned regarding the relation of Mr and Mrs Christian after their separation and divorce seem to me to be factors which warrant Mrs Christian's making of an application under s 7 of the FP Act. They seem to me to show that the separation and divorce did not completely sever Mrs Christian's relationship with her former husband and that she was in a position different from that of a woman of whose relationship with her former husband all that is known is the fact of the divorce. The circumstances make applicable to her the description of a person who might well, to use McLelland J'swords, be 'regarded as a natural object of testamentary recognition' by the deceased.

Thus, in my opinion, Master Gressier was right in deciding that in regard both to Mrs Christian and Mrs Bailey there were factors which warranted the making of their applications and that he should therefore proceed to determine each of their applications along with that of Mr G. Christian.

To this point, I have been in general agreement with the reasons and decisions of Master Gressier in the case. There is however one aspect of the case in regard to which I do not think he sufficiently explained his conclusions. After setting out the history of the matter, and making a fully adequate summary of the evidence concerning the four people interested or contingently interested in the estate, he did not discuss either the relative needs of the four parties, or attempt to evaluate the weight of the competing claims or the obligations of Mr Christian in regard to the four parties. In earlier discussing the s 9(1) issues he had mentioned some of the matters bearing upon whether he should make orders in favour of the applicants and he had also indicated a view of Miss Churton's position. Further, some indication of his train of thought is given by the authorities to which he referred. But he did not give reasons for his treatment of the three applicants as between themselves. He simply said:

In my view, having regard to all the circumstances, a wise and just testator would divide the deceased's estate into three parts and give one part to Miss Churton, one part to Mrs Christian, and one part to Mrs Bailey and Mr Christian in equal shares.""In not giving reasons explaining his division of two thirds of the estate between the three applicants in the proportions he decided, the Master made it impossible for the reader of his reasons to know, otherwise than by conjecture, what matters he took into account and, more particularly, what weight he gave to the various competing factors as between the interested parties, in arriving at his evaluative judgment. It is true that cases such as the present are difficult to decide, and much must be left to the sense of judgment of the person entrusted with the decision. However, it seems to me that more in the way of

reasons is required than the Master gave voice to in the present case, because, amongst other reasons, on appeal in cases of this kind the appellate court is required to see whether matters were taken into account which should not have been taken into account, matters were not taken into account which should have been taken into account and whether the discretionary type judgment was exercised in accordance with principle. On the reasons given by the Master, I do not think it is possible for this court to satisfy itself of each of these things. It therefore seems to me that the court is bound to test the conclusions arrived at by the Master against the court's own views of the appropriate judgment to be made in the case.

Notwithstanding that the ingredients of the case are not out of the ordinary, evaluation of appropriate orders is not easy. Now, in early 1988, the court is told the value of the estate to be distributed will be approximately $115,000. That is, at any date that it is looked at, the estate must beregarded as small. Neither the sole beneficiary under the will nor any of the applicants for provision from the estate is well off. Each of the three applicants lives in his or her own home, in the cases of Mr G. Christian and Mrs Bailey, subject to mortgage. Miss Churton seems to have a secure home for her lifetime but no legal interest in it beyond what seems to be a life estate she must share with her brother. The income of all four of them is modest. Although Mr G. Christian's income seems surprisingly low for a qualified tradesman, there appears to have been no suggestion before the Master that he was understating it and the appeal must be approached on the footing that the figures he put before the court were accurate.

In the circumstances that have been set out, it seems to me that each of the three applicants was a person in need of provision of maintenance and to whom Mr Christian owed a duty, not of equal weight in each case, to make some provision, if the size of his estate permitted. The critical matters in the present case are the size of the estate, the different degrees of need of the three applicants and the different strengths of the obligations upon the deceased to each applicant separately.

Turning first to Mrs Christian, it seems to me that of the three applicants, her need was the greatest. Obviously, her working life would come to an end a generation before that of her children and at the time when Master Gressier was considering what order should be made the circumstances were such that it was probable her working life would not go on very much longer. Once she stopped working, it seemed upon the evidence that she would be almost entirely dependent for income uponthe age pension. Mr Christian's moral obligation to her arose from the circumstances already set out together with two others not yet mentioned. The first is that upon marrying him her entitlement to a war widow's pension came to an end. The second, and more important is that at the time of the divorce, she sought no property settlement. From the evidence before the court, including Mr Christian's own grounds for divorce sworn to in his petition, there appears to have been no moral blame attributable to Mrs Christian in regard to the ending of the marriage relationship. It seems to have been Mr Christian who by his character and temperament caused the family to disintegrate. At the time when many persons in Mrs Christian's situation would have sought and in my opinion have been likely to obtain a property settlement, Mrs Christian elected to forego her claim in return for the custody of her son and a small but no doubt adequate provision for his maintenance. On the materials in evidence, I draw the inference from her conduct at that time that it was influenced by the very modest position in which Mr Christian then stood; his only asset of value was a small house, his only income that from the small business which he ran singlehanded.

The evidence shows that Mrs Christian had done all she could, to the time of separation, to maintain and improve the home and to support and help her husband in his business. Upon their separation she took the responsibility for the upbringing of their son and, by not seeking a property settlement, permitted Mr Christian to remain in what had been his home before marriage, and their home, in a non-legal sense, after it; had she sought a property settlement, it seemsto me extremely likely that the home would have had to be sold. Her moderation at the time of the divorce seems to me to have been a further element in Mr Christian's continuing moral obligation to her. When the position of the other two applicants is compared to that of their mother, although obviously they also could well do with further moneys to strengthen their capital position, they seem distinctly more secure. Mrs Bailey and her husband, so far as the evidence goes, are well able to continue to earn the incomes they are presently receiving for a long period into the future; so long as they do so, they will be able to continue to live in the moderately comfortable circumstances in which they were at the time of the hearing before Master Gressier. Similarly with Mr G. Christian; he has his three children to provide for, he otherwise lives as a single man, and as a competent tradesman with nothing presently foreseeable to prevent him earning the income a competent tradesman can earn for the rest of his working life, and, housed as he was at the time of the hearing, his position seems obviously to me to be better than that of his mother.

Miss Churton's position must also be taken into account. In many respects her situation at the time of the hearing was similar to that of Mrs Christian; it seems to me that her needs for moneys were greater than those of Mrs Bailey and Mr G. Christian for much the same reasons as obtained in regard to Mrs Christian. Miss Churton of course had already retired from work at the time of the hearing. Although there was not a great deal of detail of the relationship between Miss Churton and Mr Christian between 1964 and 1984, it is quite clear that shefurnished him with companionship and friendship during the whole of that period, gave him help in running the clerical side of his small business for so long as he continued in business on his own account and was regarded by him as someone to whom he had a considerable moral obligation arising from their twenty year association.

In these circumstances it seems to me that upon weighing the needs of the four persons to whom the testator had obligations and bearing in mind the smallness of the estate he had available to discharge his obligations and, further, looking at the matter at the time Master Gressier made the orders, the primary obligations of the estate were to Mrs Christian and Miss Churton. The smallness of the estate makes it impossible for adequate provision to be made for all the parties; it seems to me that the fairest way of discharging Mr Christian's obligations and duties is by ordering that the estate be shared between the two persons whose needs are greatest. That is, what seems to me to be the most appropriate order, in difficult circumstances, is that in lieu of the provisions contained in cl 2 of Mr Christian's will his nett estate be held by his trustee upon trust: (a) as to one half thereof for Miss Churton absolutely and (b) as to the other half thereof upon trust for Mrs Christian absolutely. These orders are equally appropriate whether looked at as at the date of the Master's orders, or of this court's orders.

Having arrived at the division of the estate which seems to me to be most appropriate in the circumstances, I return to the question whether Master Gressier's exercise ofjudgment can be seen to have miscarried and if so for what reason. In my opinion, the Master did not sufficiently appreciate the

comparatively greater need of Mrs Christian than that of either of her children, in all the circumstances at the relevant time. Upon due weight being given to that need, and upon recognition that the needs of Miss Churton, who was as legitimate an object for testamentary recognition by Mr Christian as was Mrs Christian (as the Master also thought), the conclusion should have been reached that the interests of Mrs Bailey and Mr G. Christian should be subordinated to those of Mrs Christian and Miss Churton to a greater extent than was involved in the Master's decision. In my opinion the sound exercise of judgment required that they receive nothing from the estate notwithstanding that had it been larger, it would have been appropriate for them to have had provision made for them from it by the order of the court.

My conclusion therefore is that in Mrs Christian's application an order should be made in the terms I have earlier set out. The applications of Mrs Bailey and Mr G. Christian should be dismissed. The costs of all applicants on a common fund basis and Miss Churton's costs on a trustee basis should be paid out of the estate. The parties should bring in short minutes of the proposed orders, together with any consequential orders they may see fit to seek. Orders can be made upon the short minutes on a day to be fixed between the parties and the Registrar.

Parties to bring in short minutes of order in accordance with reasons of the Court within 7 days. determination, but which also enabled the Court to have before it all the circumstances to which it was required to have regard for the purposes of s 9(2). I have no doubt that the existence or non-existence of a duty by the testator to a person falling within the provisions of pars (c) and (d) of the definition of "eligible person" in s 6(1) of the Act, similar to the type of duty (called a moral duty) on the part of a testator which was relevant in determining applications under the previous legislation, is a factor which may, and may possibly always be, relevant in determining whether the making of an application was warranted. In order to decide whether there is such a duty it would be only in the most exceptional case that the determination whether the application was warranted could be made without regard to all or most of those circumstances which are before a court in deciding whether a widow, widower or child of the deceased should have an order made in his or her favour. It does not arise for decision in the present case, but it may be that, apart from those exceptional cases, the executors should put all this information before the court so that it can have regard to all the circumstances of the case in making its first determination.

As is apparent from what Priestley JA and I have said, the requirement that the Court should first determine whether such an application is warranted does not mean that there must be some kind of preliminary hearing on the question; it merely means, as has happened in the present case, that before the Court proceeds to the final determination of the application or applications before it in the sense of determining whether applicants within pars (c) and (d) of the definition of "eligible person" or applicants outside those paragraphs should or should not have an order made in their favour, a determination whether applications by eligible persons within pars (c) and (d) are warranted must first be made.

Counsel for the appellant: PW TAYLOR / CB LOVEDAY Solicitors for the appellant: CARROLL and O'DEA Counsel for the respondent: J CRUMPTON QC / R SETON

Solicitors for the respondent: RH FARMER and CO and GD CAMPBELL and co