Daley v Donaldson

Court of Appeal (NSW)|2022-06-10|Before: Leeming JA, White JA, Mitchelmore JA, Hallen J

Background

The applicant, Mr Glenn Eric Daley, is the biological son of the late John Bernard Richardson. The respondent, Ms Dawn Jeanette Donaldson, is a biological daughter of the deceased. She was appointed executrix under her father's will and has obtained a grant of probate. A mediation of the applicant's claim for a family provision order resulted in a compromise, from which the executrix shortly thereafter resiled, saying she had been under a misapprehension. The primary judge declined to make orders giving effect to the compromise.
Without conveying any informality or disrespect, it will be convenient to refer to the parties and other family members by their given names.
Dawn is the oldest sibling, born in 1958. Glenn is the youngest, born in 1961. A sister Rosealie was born in 1960. She is not party to this litigation, although she has brought separate proceedings seeking a family provision order. It is impracticable for Rosealie's proceedings to be determined until the dispute between Glenn and Dawn concerning the compromise is resolved.

The judgment at first instance

The primary judge delivered judgment on 23 November 2021. His Honour summarised the procedural history and observed at [17] that: "The affidavit should not have been delivered to the Court. The Court's direction stipulated that submissions were to be provided on a limited topic. No application was made for leave to re-open the Plaintiff's case or to rely upon further evidence. Nor has any such application been made since the conclusion of the hearing of the notice of motion."
His Honour stated at [18]-[19] that he had ignored the affidavit attached to the submissions: "In any event, in view of the opportunities given to the Plaintiff between April and September 2021 to file and serve evidence on the topic of the Plaintiff's adoption to which I have referred above, the dictates of justice and the need for the Court to make orders with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial, I have ignored the affidavit. In all the circumstances, I do not propose to delay the determination of the issue the subject of the notice of motion which notice of motion has already delayed the determination of these, and the associated, proceedings."
The "associated proceedings" were those brought by Rosealie, which had not, and have not, been given a date for hearing because of the dispute between Glenn and Dawn.
His Honour said at [37] that he accepted the evidence of Dawn's solicitor the effect of which was that at the mediation: "both the Defendant, and she, believed, on the basis of documents that were then available, that the only ground of eligibility upon which the Plaintiff relied, was that he was a child of the deceased."
After a review of authorities under the legislation as well as decisions on common mistake, his Honour concluded at [86] that: "the Court must consider, in every case involving a claim for a family provision order, whether it should make orders to give effect to the compromise reached between the parties".
His Honour's dispositive reasoning was at [87]-[94]. He stated that neither side was aware of the adoption order when the settlement agreement was signed, and that there was little doubt that the parties' actions were the result of a common mistake, namely, that Glenn was a child of the deceased. His Honour relied, in reaching that conclusion, on the fact that Glenn had failed to provide any evidence as to his childhood family and relationship with his adoptive father. His Honour then addressed the critical paragraph in Dawn's affidavit: "Whilst the Defendant's affidavit made on 13 March 2021 referred to documents relating to an adoption having been signed, I do not accept that this, when taken with the deceased's Will, the allegation of the Plaintiff that he was a son of the deceased, the deceased's Death Certificate, and the Notice of Eligible Persons, prevented each party from having a positive state of mind that the Plaintiff was in fact the deceased's child. The fact that neither party investigated the possibility of the Plaintiff's adoption, despite having the opportunity to do so, does not preclude the parties from having formed a positive state of mind that the Plaintiff was the son of the deceased. In my view, this they did."
His Honour regarded the mistake as to Glenn's status as a mistake about "a fundamental matter underlying the settlement or compromise" and "a fact that went to the root of the settlement or compromise". He then added, without expressing a view as to the status of Denning LJ's statement of principle in Solle v Butcher [1950] 1 KB 671, that: "… the common misapprehension concerning the status of the Plaintiff as an eligible person attracts the exercise of the Court's jurisdiction in the interests of justice. Even if I am wrong in reaching this conclusion, any settlement or compromise reached requires orders to give effect to it. As a matter of discretion, I would refuse to make orders that reflect any compromise that was reached between the parties."
Accordingly, his Honour dismissed the notice of motion.

The appeal to this Court

There was a concurrent hearing of the application for leave to appeal and the appeal. Glenn sought leave to rely on 11 proposed grounds of appeal. They are most efficiently addressed in approximately the same order, and with the same degree of emphasis, as was adopted in oral submissions. In part that reflects the fact that, constructively, Dawn acceded to Glenn's application to have the question of law which was at the forefront of his submissions, and which had not been fully considered by the primary judge, determined in light of all of the evidence now available.

Grounds 10 and 11 - does Glenn remain a child of the deceased?

Glenn presently lives in New South Wales, and even if he were domiciled elsewhere, his status for the purposes of the definition of "child of the deceased" in the Succession Act is determined in the first instance by New South Wales law. However, s 102 of the Adoption Act 2000 (NSW) provides: "An order for the adoption of a person that was made in another State (whether before or after the commencement of this section) that - (a) is in accordance with, and (b) has not been rescinded under, a law of that State is to be treated as having the same effect as an adoption order made under this Act."
Similar provisions have long been in force in all other States: see M Davies, A Bell, P Brereton and M Douglas, Nygh's Conflict of Laws in Australia (10th ed LexisNexis Butterworths, 2020) at [30.12]. The Victorian counterpart was said by Zelman Cowen to "put at end the controversy over the decision in Harris v Harris [[1947] VLR 44] and the implications of that decision" as to the effect of s 118 of the Constitution: Z Cowen, "Marriage, Matrimonial Causes, Legitimacy and Adoption: Miscellaneous Notes on Recent Australian Statutes" (1965) Australian Year Book of International Law 23 at 32. The good sense of those provisions is evident from what appears in the present case, namely, that some adoptions may be effected by executive act rather than court order, and thus may fall outside of the recognition reflected by s 118 of the Constitution, formerly by s 18 of the State and Territorial Laws and Records Recognition Act 1901 (Cth) and, since 1995, by s 185 of the Evidence Act 1995 (Cth), as well as avoiding the potential for dispute based on the adopted child's domicile (an example of which may be seen in In the Estate of Searle, Deceased [1963] SASR 303).
The evidence establishes that Glenn was adopted in Queensland in accordance with the Adoption of Children Act 1964 (Qld) by order made by a senior public servant and that order has not been rescinded. Accordingly, Glenn is to be treated as having been adopted under the Adoption Act 2000 (NSW).
Sections 95 and 97 of the Adoption Act 2000 (NSW) were central to Glenn's submissions on this point. They provide as follows: "95 General effect of adoption orders (cf AC Act s 35 (1) and (4)) (1) An adoption order made by the Court gives sole parental responsibility for a child to the person or persons named in the order (the adoptive parent or adoptive parents). (2) For the purposes of the law of New South Wales, if an adoption order is made - (a) the adopted child has the same rights in relation to the adoptive parent, or adoptive parents, as a child born to the adoptive parent or adoptive parents, (b) the adoptive parent or adoptive parents have the same parental responsibility as the parent or parents of a child born to the adoptive parent or adoptive parents, (c) the adopted child is regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent or adoptive parents are regarded in law as the parents of the adopted child, (d) the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child. Note - For example, for the purposes of a distribution on intestacy, an adopted child is regarded as a child of the adoptive parent or parents and the child's family relationships are determined accordingly. See section 109 of the Succession Act 2006. (3) Despite subsection (1), an adopted child does not cease to be regarded in law as the child of a birth parent or adoptive parent, and the birth parent or adoptive parent does not cease to be regarded in law as the parent of the child, if an adoption order is made in relation to a step parent with whom the birth parent or adoptive parent is living. (4) For the purposes of any law of New South Wales relating to a sexual offence (being a law for which the relationship between persons is relevant), any relationship that would have existed if an adoption order or discharge order had not been made continues to exist for the purposes of that law in addition to any relationship that exists under this section by virtue of the order. … 97 Effect of orders as regards property (cf AC Act ss 35 (2) and (3) and 36) (1) Section 95 does not have effect so as to deprive an adopted child of any vested or contingent property right acquired by the child before the making of the adoption order."
Glenn acknowledged that the effect of s 95(2)(d), if considered in isolation, was that upon his adoption in 1973, Glenn ceased to be regarded in law as the child of the deceased, and instead he came to be regarded in law as the child of his adoptive father Keith Daley. However, Glenn contended that s 95(3) and s 97 had the effect of him continuing as the son of the deceased. There were three strands to the submission. 1. First, it was said that s 95(2)(d) should be understood as being qualified by s 95(3). It was to be inferred that Glenn's birth mother was living with Keith Daley when Glenn was adopted, and thus it followed that the deceased, Glenn's birth father, did not cease to be regarded in law as Glenn's parent. 2. Secondly, it was said that at the time of the adoption, Glenn had a right to apply under the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) for an order for provision, and that that right was a "vested or contingent property right" which engaged s 97(1) thereby precluding the effect of s 95(2)(d). 3. Thirdly, it was said the effect of s 97 was to preserve in point of law Glenn's status as a child of the deceased.
These submissions cannot be accepted.
Section 95(3) is more complex than it may at first seem. A textual error coupled with its unusual syntactic structure contribute to this. The subsection has four elements, which may be summarised thus: 1. Despite subsection (1), 2. an adopted child does not cease to be regarded in law as the child of a birth parent or adoptive parent, and 3. the birth parent or adoptive parent does not cease to be regarded in law as the parent of the child, 4. if an adoption order is made in relation to a step parent with whom the birth parent or adoptive parent is living.
The structure of the provision is that if the condition in the fourth element is satisfied, then each of the second and third elements have effect, notwithstanding what would otherwise be the effect of the legislation mentioned in the first element. It is understandable that the drafter gave prominence to the fact that this provision overrode what preceded it, by placing the words "Despite subsection (1)" at the beginning, but the key to the provision is to observe that it only applies if an adoption order is made in relation to a step parent with whom the birth parent or adoptive parent is living. Thus the logical starting point is the fourth and final element in the provision.
The Dictionary defines "step parent" to mean, in relation to a particular person, another person who (a) is not a birth parent, parent or adoptive parent of the particular person, and (b) is married to the particular person's birth parent or adoptive parent or is the de facto partner of the birth parent or adoptive parent. Thus after Keith Daley married Glenn's biological mother, he became Glenn's step parent.
Separately from the above, there is an obvious textual error in s 95(3). Although it is expressed to qualify s 95(1), in order for it to be read sensibly, it must be understood as qualifying s 95(2). The point of s 95(3) is to identify circumstances in which, exceptionally, the birth parent does not "cease to be regarded in law as the parent of the child", being the very words used in s 95(2)(d). Those words are absent from s 95(1). What was said by reference to authority in Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100 at [20] is equally applicable here: "This is a clear case where the drafter has made a mistake for a reason which is readily identifiable. The Court should read the definition in accordance with its former operation and clear intention."
First instance decisions have proceeded on that basis, including Re D [2006] NSWSC 808 at [4] and Adoption of ESF [2014] NSWSC 687 at [17].
The effect of s 95(3) can readily be seen in, say, the case of an adoption by, solely, a step-father of the biological child of a mother with whom he is living. But for s 95(3), the child would cease to be regarded as the child of the birth parents, including the birth mother. Subsection (3) avoids that result. This was an aspect of what was said by White J in Application of A and B and the Adoption Act 2000 (2005) 63 NSWLR 594; [2005] NSWSC 916 explaining the operation of the provision. It was also the mischief identified by the New South Wales Law Reform Commission, whose 1997 report Review of the Adoption of Children Act 1965 (NSW) (NSWLRC Rep 81) preceded the enactment of the Adoption Act 2000 (NSW), and which stated: "At present, a step-parent wanting to adopt his or her step-child must make a joint application with his or her partner (the "custodial parent"), involving the custodial parent having to first relinquish his or her own child for adoption. Not surprisingly, this requirement is found by most applicants to be offensive, and it has been abandoned in other States. The Commission recommends that a step-parent be able to make a sole application, without having legal effect on the custodial parent's relationship with the step-child."
In the facts of this case, the children were formally adopted by both Jeanette (their birth mother) and Keith. However, the condition at the end of s 95(3) would have been satisfied by the adoption order made in 1973 in relation to Keith (who had become Glenn's step father no later than his marriage to Jeanette). Even if the adoption had been by Keith alone, so long as Jeanette was living with him, Glenn would continue to be regarded in law as her child. But s 95(3) says nothing about how the law regards Glenn's biological father, who was not living with the adopting step father.
Glenn's submission is that because Glenn's birth mother was living with his adoptive father so as to engage s 95(3), the result is that Glenn's birth father does not cease to be regarded as a parent of the adopted child. That is a strained construction of the provision, to say the least. There is nothing to suggest that the disapplication of the general rule in s 95(2)(d) applies to both birth parents, even one who is separate from the adopting parent. When once it is apprehended that the starting point is the concluding words "an adoption order is made in relation to a step parent with whom the birth parent or adoptive parent is living", it is clear that it can only be the birth parent or adoptive parent living with the step parent who gains the benefit of the exclusion from the effect of s 95(2)(d). The definite article "the" preceding "birth parent or adoptive parent" in s 95(3) (in the third element) refers to the person identified in the condition at the end of the provision, namely, the person with whom the step parent is living. Glenn sought to rely upon the potential width of the words "in relation to", but by no stretch can those words defeat the explicit requirement in the provision that the birth parent or adoptive parent must be living with the adopting step parent.
For those reasons, the fact that the biological mother was living with Glenn's step father when the adoption order was made did not have the effect of disapplying s 95(2)(d) with respect to Glenn's biological father.
The second strand of Glenn's submissions was that, in counsel's words, "when the applicant was born in New South Wales in 1964, he did indeed have a vested or contingent property right, namely the right to bring a family provision claim against his biological father that, at that time, existed because of the old Testator's Guardianship of Infants and Family Maintenance Act, which … Act was still current in 1964." That cannot be so. There was no vested right of any kind, because such rights as Glenn had under the various legislation for family provision did not exist prior to the death of his biological father. Until and unless the father predeceased the son, the son had merely an expectation that he might become entitled to apply under the statute.
Another way of seeing this is as follows. Prior to his biological father's death, Glenn had no property rights in relation to the assets owned by his father. He had merely an expectation or hope that he might be entitled to property under his will. He had "no more than a mere expectancy or as it is sometimes called a mere spes successionis and such a hope or expectancy gives rise to no rights in law at all. It is a mere possibility", as Lord Upjohn expressed the position in Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32 at 37. So too the statutory power to alter the distribution of property upon death through making a family provision order does not give rise to anything capable of being a property right prior to death.
The third strand of the argument is difficult to summarise, such that it is best to reproduce counsel's own words: "What I'd say is that, that the effect of s 97(1) of the Adoption Act, when construed in conjunction with s 95 of the Adoption Act (NSW) had the effect that the applicant was still in a father son relationship with his biological father. That relationship was not lost when the 1916 Act was initially repealed. The significant point is that, as at the date of adoption, by virtue of s 97(1) and by virtue of s 53A, [sic] which talk about in relation to a step parent. If your Honours go back to s 95 of that NSW Act, and subs (3), it uses the expression 'in relation to' the birth parent. In my submission, the Court has to give weight of this concept of 'in relation to'. That in relation to, the legislative intention is that the relationship between the applicant and his birth father was preserved, insofar as he was an eligible claimant in the family provision claim against his biological father's estate. The wording 'in relation to' has to be, in my submission, given some work to do."
The submission is that s 97 somehow preserved Glenn's status as a child of his biological father for the purposes of being able to make a claim decades later as an eligible person. But this is in the teeth of s 95(2)(d). By no mode of statutory construction can the precise statement in s 97 about property defeat the precise statement in s 95(2)(d) about status. The two sections speak of quite distinct subject matters. The only qualification upon the operation of s 95(2)(d) upon the status of an adopted child is s 95(3) - that is the point of the opening words "Despite …" - but s 95(3) is ineffective to do so in the present case for the reasons already given.
Accordingly, these grounds are not made out. The primary judge correctly proceeded on the basis that Glenn was not a child of the deceased for the purposes of the definition of "eligible person" in s 57(1)(c) of the Succession Act.

Grounds 8 and 9 - improper rejection of the affidavit supplied after judgment was reserved?

It was properly conceded that these grounds impugning the refusal to have regard to the affidavit supplied after judgment was reserved did not arise if Glenn's submissions as to the effect of ss 95(3) and 97 were rejected. The concession was properly made; only failures to accord procedural fairness which are material can be the subject of complaint: see, most recently, MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [2]. There could be nothing procedurally unfair in Glenn being denied the opportunity to make submissions on a point of law based on evidence he was prevented from adducing if the point of law is wrong.
Although no more need be said of these grounds, it is no small thing to allege that a judge has acted in a way which is procedurally unfair. Such submissions should not be made lightly. In order to dispel any suggestion that there was any potential procedural unfairness in the hearing conducted by the primary judge, it should be observed that there was ample opportunity prior to the hearing in October 2021 to adduce the evidence sought belatedly to be adduced, and there was ample opportunity during the hearing to apply to re-open, at which stage the Court could assess the reasons for the delay, the quality of the explanation (if any) and the attitude of the defendant.
True it is that his Honour was incorrect to state that no application to re-open had been made. An informal application, unsupported by any evidence of why the material had not been sought and obtained months earlier, was made in the written submissions. But it would have been well open to decline the application to re-open, which in substance amounted to an application for further delay so as to make out the integers of a legal argument which had not been fully presented at the hearing.
It is important that parties and practitioners, bound as they are by the duties in s 56 of the Civil Procedure Act, attend to the significance of achieving finality at an interlocutory hearing of what was, after all, a relatively small claim in relation to a relatively small estate. It should not be thought that it is ordinarily appropriate, when directions are made permitting supplementary submissions on a point which should have been advanced at the hearing, to make an informal application to re-open, without a motion, and unaccompanied by a supporting affidavit explaining why after a hearing which occupied most of a day it was sought to re-open, on an issue which had been explicitly raised by the primary judge.

Grounds 2, 3, 4 and 6 - were the parties subject to a common mistake that went to the root of the settlement?

Glenn submits in a variety of ways that the primary judge was wrong to find that the parties laboured under a common mistake. It was put that there was no common mistake (ground 2) because Dawn is to be taken to have known that there was a chance that Glenn had been formally adopted. It was put that the compromise should have been upheld as a "considered commercial decision" with the parties deciding to bear that risk (grounds 3-4). It was said that there was a binding agreement falling within the ratio of Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 which should have been enforced (ground 6). Aspects of these submissions were not without force, in light of paragraph 41 of Dawn's affidavit.
Some of the parties' written submissions were addressed to the status in this country of Solle v Butcher and the broad discretion which the primary judge mentioned at the conclusion of his reasons to set aside an agreement affected by "serious" misunderstanding, reasoning which has been disavowed in the United Kingdom in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679; [2002] EWCA Civ 1407 and in this country by the Queensland Court of Appeal in Australia Estates Pty Ltd v Cairns City Council [2005] QCA 328.
These submissions were not developed orally. In particular, no submissions were made as to the effect of the references to Solle v Butcher in Taylor v Johnson (1983) 151 CLR 422; [1983] HCA 5, which is surely the only substantial reason, if there be any valid reason, for continuing to apply a principle from the English Court of Appeal which was never free from controversy and which has long since been discredited in that country. It is not necessary to decide this point, and although it is one which has attracted strongly held views, notably N Seddon and R Bigwood, Cheshire & Fifoot Law of Contract (11th Aust ed, 2017, LexisNexis Butterworths) at [12.3], I do not think it is appropriate to address it.
The reason for taking that course is not so much the absence of anything like full argument, but its irrelevance to the issues presented in the appeal. This was not a case where a party was seeking to rescind a contract at common law or in equity, or to resist specific performance. Still less was it a case of a party seeking to recover payments made by mistake. The parties' submissions displayed a tendency to latch onto statements of principle from decisions in other contexts, where mistake founded a cause of action or gave rise to a defence, rather than attending to the actual application determined by the primary judge.
An agreement between the parties that the Court make a family provision order does not (pace Glenn's submissions to the contrary which I shall shortly address) entitle the parties to such an order. It remained necessary for the Court, in the exercise of its discretion, to make that order, or perhaps some different order, or to decline to make any order leaving the application to be determined at trial. The exercise of discretion by a court presented with a consent order signed by the parties' representatives for the making of provision out of an estate pursuant to s 59 of the Succession Act, but which by the time the order is sought to be made is opposed by one party, is different from the issues which arise when a party seeks rescission or opposes specific performance, and thus little assistance will be found in statements of principle in those other areas. I understood both parties to have accepted as much when the appeal was heard.
The primary judge said that if, as Glenn contended, there was a binding enforceable agreement, then even so as a matter of discretion and in light of his findings as to Dawn's knowledge, he would decline to enforce it. Only if that reasoning discloses appellable error can Glenn's appeal be allowed. Accordingly, I turn to the grounds which challenged that exercise of discretion.

Grounds 5 and 7 - Did the discretion exercised by the primary judge miscarry?

Glenn's proposed notice of appeal was premised on the primary judge exercising a discretion, and at first counsel proceeded on that basis: "LEEMING JA: And if there were a binding contract, it did not follow, as night follows day, that you had an entitlement to orders; rather, the Court had to exercise the discretion. Is that something you accept? BATES: I accept that, your Honour."
However, later in oral address, counsel maintained that once it was established that the parties' agreement bound them, his Honour had no discretion which could properly be exercised. After a series of exchanges with members of the Court, the conclusion reached was as follows: "LEEMING JA: What you do say, I think, is that his Honour was wrong at the end of his judgment to regard there being a separate discretion. His Honour was wrong to proceed on the basis in the fallback position [at] the end that, if you had a binding agreement because of as you say the parties had entered into this knowing there was a chance that he wasn't an eligible person as a son, his Honour was wrong to say there was a discretion he had to exercise. BATES: Yes. I say, at that point, the Court has a discretion about - the Court has to have a basis to exercise that discretion, and my submission is that there is no fact that would give rise to engaging some further or extra discretion. I'd put it that way. LEEMING JA: I'm going to regard proposed ground five, which is an error in exercising this discretion as extending to a claim that, in the facts of this case, there was no discretion to exercised. BATES: Yes. LEEMING JA: I think that's the substance of what you're saying. BATES: That's the substance. Yes."
As Mr Daniels, who appeared at first instance and in this Court submitted, that the Court has a discretion to make or not make consent orders is axiomatic. It is plain on the face of the specific section of the Succession Act, s 98, dealing with compromises of claims for family provision orders. Section 98(3) provides: "The Court may make a family provision order in terms of a written agreement (a consent order) that - (a) is produced to the Court by the affected parties in relation to an application after mediation, or on the advice of a legal practitioner, and (b) indicates the parties' consent to the making of the family provision order in those terms."
Glenn's notice of motion invoked s 73 of the Civil Procedure Act rather than s 98 of the Succession Act, but nothing turns on this and neither side suggested that it did.
Contrary to Glenn's oral submissions, there was no entitlement to the making of the family provision order contained in the "CONSENT ORDER" document, even though that document prima facie satisfied the requirements of s 98(3). The Court retains a discretion.
That the Court retains a discretion may be seen most directly from the use of the permissive "may" in s 98(3).
It is obvious as a matter of principle. If the Court is being asked to make an order under the Act, with the consequences that entails, then the Court must first form the view that any prerequisites to the statutory power have been satisfied. The fact that the parties agree that a person in whose favour a family provision order is to be made does not relieve the Court from being satisfied that that is so.
It is also well settled as a matter of authority. In Bartlett v Coomber [2008] NSWCA 100 at [84]-[86], Bryson JA, with whom Hodgson JA agreed, emphasised how the parties' agreement could not by itself effect the alterations in property brought about by the making of a family provision order: "The agreement could only be given effect by an order made by the Court, and the Court could only act in exercise of the power in s 7 of the Family Provision Act 1982. If claimants and executors agree to settle a Family Provision claim their agreement cannot have effect unless the Court exercises its power under s 7 and orders provision in accordance with the agreement. Whatever their agreement says, obtaining an order of the Court is impliedly a condition of its effectiveness. If the Court simply accepted the agreement of the parties and ordered the provision for which the agreement provides without considering exercise of its power under s 7 the Court would act in error; it would in substance fail to exercise its power. An order for provision always adversely affects property rights in estate assets which somebody would otherwise have. Alterations of property rights of this kind are authorised by law only if the Court makes a decision under s 7; not otherwise."
Mason P confirmed as much at [39]. The same has been reiterated in a very large number of cases, including by way of recent examples Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [4] and Liprini v Hale (2020) 103 NSWLR 275; [2020] NSWCA 130 at [112]. True it is that a court will, in the exercise of its discretion, give a measure of deference to a compromise reached between parties to litigation, especially if the parties are represented and may be taken to be conscious of the constraints upon the making of a family provision order. This reflects the more general propositions that a court must be satisfied that there is jurisdiction, but that where the parties are agreed, the court may quite readily be satisfied: see for example Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 428; [1911] HCA 31 where it was said that "very slight inquiry may be adequate". Glenn's submission that the primary judge erred in regarding there to be a discretion to be exercised must be rejected. The contrary is the case; indeed it is axiomatic.
Once it be accepted, as it must, that the primary judge was called upon to exercise a discretion to make orders resolving the dispute between Glenn and Dawn, the issue is whether it has been shown to have miscarried. It was accepted before his Honour that the only basis on which Glenn had propounded his entitlement to a family provision order at the mediation was as a son of the deceased. No challenge was sought to be made to the finding to that effect at [37] which is reproduced above.
That basis was regarded by Dawn, shortly after the compromise was reached, as incorrect. With the benefit of the documents and submissions now available, it is clear that Dawn was correct to form that view. Glenn is not a child of the deceased for the purposes of s 57(1)(c) of the Succession Act.
The primary judge refrained from determining that issue, no doubt being conscious of the incomplete state of the evidence, but nonetheless declined to make the orders, leaving the correctness of the issue arising under s 57(1)(c) to be determined at a hearing. There was no error in that approach.
Of course, it is quite plain on the material now available that the compromise was reached on a basis which is established to be false. Irrespective of whether Glenn is an eligible person by reason of s 57(1)(e) (an issue as to which these reasons express no view), it was unquestionably open for the primary judge to decline to make orders reflecting a compromise which Dawn had entered into on a basis now demonstrated to be false.

Orders

For those reasons, while there should be a grant of leave, the appeal should be dismissed. There is no reason to depart from the usual rule as to costs.
I propose these orders:
Grant leave to appeal in terms of the notice of appeal contained in the White Folder, amended by including ground 5A "The primary judge erred in proceeding on the basis that, on the facts of this case, there was a discretion to be exercised".
Direct the applicant to file a notice of appeal, but otherwise dispense with the requirements of service.
Appeal dismissed, with costs.
WHITE JA: I agree with Leeming JA.
MITCHELMORE JA: I agree with Leeming JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2022

Adoption of Children Act 1964(Qld)

State and Territorial Laws and Records Recognition Act 1901(Cth)

Testator's Family Maintenance and Guardianship of Infants Act 1916(NSW)

Adoption of Children Act 1965(NSW)

Solicitors: Gerard Malouf & Partners (Applicant) Digital Age Lawyers (Respondent) File Number(s): 2021/00362070 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2021] NSWSC 1507 Date of Decision: 23 November 2021 Before: Hallen J File Number(s): 2020/00353698

(2020) 103 NSWLR 275

At a glance

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Judgment (9 paragraphs)

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Legislation Cited (8)

Cases Cited (20)

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