Ellem v Webber [2020] NSWSC 910 | Case summary

Supreme Court of NSW|2020-06-16|Before: Robb J

Solicitors: Andrew Sheeley & Associates (plaintiff) HepMac Lawyers (defendants) File Number(s): 2018 / 351164

Judgment

The plaintiff, Cheryl Ellem, is the thirteenth child of the late Terrence Victor Webber, who died on 20 November 2017.
Carmel Webber, who was the wife of the deceased and the mother of all of his children, died in May 2019.
By summons filed on 15 November 2018, the plaintiff seeks an order pursuant to s 59 of the Succession Act 2006 (NSW) (the Succession Act) for further provision for her maintenance, education and advancement in life out of the estate of the deceased.

The will

The deceased's last will made on 3 February 2017 relevantly provided as follows: 1. I revoke all previous testamentary acts. 2. I appoint my son MICHAEL JOHN WEBBER and my daughter MARIE THERESE CHAMBERS (together and the survivor called "my Trustees") executors of my Will and trustees of my estate. 3. I GIVE: 3.1 my "blessing from the Pope", the family Bible and any shares I own at the date of my death in INSURANCE AUSTRALIA GROUP LIMITED To my daughter MARIE THERESE CHAMBERS; 3.2 any shares I own at the date of my death in NIB HOLDINGS LIMITED, any motor vehicle I own at the date of my death, my coin collection, War Service Metals and tools to my son MICHAEL JOHN WEBBER; 3.3 the balance of the contents of my home including my personal belongings and effects, furnishings, furniture and items of household use and adornment to my son MICHAEL JOHN WEBBER. My son, MICHAEL JOHN WEBBER may, in his own absolute discretion, gift any item of my personal belongings as he sees fit, to any others of my beneficiaries. He has no obligation to do so; 3.4 my principal place of residence at the date of my death, including all fixed floor coverings, blinds, curtains and light fittings or any interest I have in it at my death or the balance of any capital sum remaining from the sale of the property, assets arising from the release of any accommodation secured for me from the property, accumulated income derived from the investment of capital arising from the sale of the property (as the case may be) to my son MICHAEL JOHN WEBBER and my daughter MARIE THERESE CHAMBERS as tenants in common in equal shares; … 4. I give the residue of my estate, after payment of all my just debts, funeral and testamentary expenses to my Trustees on trust to: 4.1 divide the residue of my estate or treated as being divided into twenty equal parts and the words part or parts in this paragraph refer to those equal parts; 4.2 subject to sub-paragraphs 4.3 and 4.4, hold those parts for those of the following who survived me: (a) as to nine parts for my son TERRENCE PATRICK WEBBER; (b) as to one part for my daughter VICKI WEBBER; (c) as to three parts for my son DAVID MARK WEBBER; (d) as to one part for my son STEPHEN WEBBER; (e) as to two parts for my son KIERAN WEBBER; (f) as to one part for my son GLENN WEBBER; (g) as to one part for my daughter MICHELLE WEBBER; (h) as to one part for my daughter JANINE WEBBER; (i) as to one part for my daughter CHERYL WEBBER. 4.3 If any of the persons referred to in sub-paragraph 4.2 dies before me or before attaining a vested interest, leaving children who reach or have reached 18 years of age than those children take equally the part or parts which their parent would otherwise have taken; 4.4 If any of the above parts fail to vest then those parts are, from the time of that failure, to be added to the other parts in the proportion which those parts bear to each other and this provision shall apply to the original parts and the parts which have increased as a result of this provision.
The plaintiff was referred to in cl 4.2(i) of the will by her maiden name. Louise Webber has since died. Although David Mark Webber received a share of residue by cl 4.2(c), he became a missing person before the date of the will in circumstances that will be described below. The deceased's son, Christopher Webber, did not receive any share of the deceased's estate.

The deceased's property and the effect of the will

Henceforth, and without meaning any disrespect, I will refer to the deceased's children by their first names in order to avoid confusion, given their number and common surnames.
Probate of the deceased's will has been granted by this Court to Michael and Marie.
The inventory of property annexed to the grant of probate states that the value of the property owned by the deceased at the date of his death was $796,702.93. Of this sum, $625,000 was attributed to the deceased's home at Hamilton North near Newcastle. The balance of the estate was made up of shares in Insurance Australia Group Ltd (IAG) valued at $10,260.27, shares in NIB Holdings Ltd (NIB) valued at $20,280, and a balance worth $141,162.66.
On 16 November 2018, Glenn and Kieran commenced proceedings for further family provision under s 59 of the Succession Act. On 15 June 2020, the Court made orders in settlement of those proceedings. By those orders, Glenn received a lump sum of $24,250 and Kieran received a lump sum of $22,750. The burden of the provisions made in favour of Glenn and Kieran was ordered to be borne by Michael and Marie equally. There was also an order that Glenn's and Kieran's costs of the proceedings be borne equally by Michael and Marie.
The parties to Cheryl's proceedings agreed to the present value of the estate and the effect on the estate of the settlement of Glenn's and Kieran's claims. Following the Court having reserved judgment, I realised that the parties had not addressed all relevant matters concerning the administration of the estate. I made a further enquiry of the parties through my Associate. On 18 June 2020, the defendants' solicitor provided a detailed response. That response was also provided to Cheryl's legal representatives. As those legal representatives have taken no issue with the information provided by the estate's solicitor, I will assume the truth of that information for the purpose of these reasons.
The defendants have not yet made any distributions to the residuary beneficiaries. The amount of the residue cannot be ascertained until the result of these proceedings is known.
As David has been missing for a little over seven years, the defendants propose, at this stage, to act upon the common law presumption of death, and to apportion David's share among his surviving four adult children.
The calculation set out above at [8] suggests that, at the date of the death of the deceased, the residuary estate had a value of $141,162.66. The defendants' solicitor's response advised that the residual estate in fact had a value of $139,642.69. The difference is small and I will accept the latter figure.
The value of the assets in the estate on the date of the hearing was $656,051, made up of the Hamilton North property at $540,000, cash in the defendants' solicitor's trust account of $93,626.12, parcels of NIB and IAG shares worth $13,200 and $7,725.41 respectively, and a 1994 motor vehicle worth $1,500.
The defendants had, to the date of the hearing, paid out of residue $29,115.57 for legal costs of both proceedings and $16,901 in respect of the estate's disbursements. Consequently, as at that date, the current balance of the residuary estate was $93,626.12.
The Court was told by the parties during the hearing that the effect of the settlement of Glenn's and Kieran's proceedings is that a net amount of $70,000 will be paid out of the distributable estate. That is made up of the total lump sum payments to Glenn and Kieran of $47,000, and payment of their legal costs at $35,000, less the amount of $12,000, which was the amount to which Glenn and Kieran were entitled under the deceased's will, and which they agreed to forgo as part of the settlement. Order 1 made to give effect to the settlement provided that the lump sums were in lieu of the provisions made in the will for Glenn and Kieran.
It appears, per the response of the defendants' solicitors, that the defendants understand the effect of orders 1, 3 and 4 in Glenn and Kieran's settlements to be that the defendants will bear the difference between the lump sums payable to Glenn and Kieran and the amount of their shares in residue, as well as the full amount of the agreed legal costs.
The result will be that Glenn and Kieran will receive their shares in residue under the will, but the balance of the settlement monies payable to them, including their agreed legal costs, will not reduce the residue, but will be borne by the defendants.
The parties also agreed that Cheryl's costs on the ordinary basis of these proceedings will be $40,500. Cheryl's solicitor's evidence was that her costs on the indemnity basis will be $53,900, so Cheryl would have to fund the shortfall of $13,400, even if she succeeds on her claim.
If Cheryl succeeds on her claim in these proceedings, the effect of an order that Cheryl's costs be paid out of the estate on the ordinary basis would be to reduce the value of residue by $40,500, unless the Court makes an order that those costs be born on some other basis.
The Court was advised by the defendants' solicitor's response that the defendants have incurred unpaid legal costs of $22,660, being $19,360 for the present proceedings, including indemnity costs that they were ordered to pay as a result of an earlier interlocutory application, plus $3,300 in relation to the proceedings by Glenn and Kieran.
The defendants' solicitor also advised that he had realised that the amount that he had stated for the value of the residue included dividends from shares that had been left to the defendants under the will, and also an amount of $1,556 paid by Marie for the filing of the application for the grant of probate, which had not been repaid by the estate. I will accept these figures.
The result will be, on the assumption that the Court does not make any order to the contrary that prevents the usual course of the defendants' costs of these proceedings being paid out of the estate, the value of the residue as at the date of the hearing was $67,449.80.
If that is ultimately the amount of the residue, then when the defendants distribute the residue in accordance with the will, as varied by the orders made in settlement of the proceedings by Glenn and Kieran, the residuary beneficiaries will receive the following amounts: Terence $31,961.75 Vicki $3,373.49 David's children $10,120.47 Stephen $3,373.49 Glenn $3,373.49 (plus $20,876.51 from the defendants) Kieran $6,746.98 (plus $16,003.02 from the defendants) Michelle $3,373.49 Janine $3,373.49 Cheryl $3,373.49
I note that the Court was told during the hearing that Glenn's and Kieran's shares of residue had a value of $12,000, whereas the figures in the preceding paragraph total $10,120.39.
The Court must therefore approach Cheryl's application for further family provision on the basis that she is only entitled to a share of residue presently valued at $3,373.49. That amount, together with the shares of the other residuary beneficiaries, is liable to change if the Court makes an order for further provision in favour of Cheryl and the payment of her costs, subject to the Court making an order that those payments be borne other than by residue.

The conduct of the proceedings

These proceedings were, if I may respectfully say so, conducted on a particularly fair and decent basis by all parties. In particular, the defendants in their separate affidavits admitted substantial parts of the evidence given by Cheryl in her affidavits. Perhaps as a result of the size of the family and the ultimate estrangement between some of its members, the subject matter of a substantial part of Cheryl's evidence was unknown to the defendants, and accordingly they properly responded in their affidavits by informing the Court that they did not know and could not admit the assertions made by Cheryl.
The testimonial evidence in the proceedings was given by Cheryl and each of the defendants. There was no evidence from any other member of the family.
The only witness who was called for cross-examination was Cheryl. Cheryl's evidence was tested in a sensitive and appropriate way on a number of subjects, but she was not contradicted in any significant way.
Cheryl gave her evidence in an entirely open, candid and satisfactory manner. I accept Cheryl as a witness of truth with a reasonably accurate memory of relevant events. Where I have said in what follows that Cheryl made some assertion of fact in her evidence, I have accepted that evidence. The contrary was not suggested by the defendants.
In particular, Cheryl was punctilious in not exaggerating the conduct of the deceased towards her, but restricted her claims to those matters for which she had a clear and genuine recollection.
Although in final submissions, the defendants asked the Court to find that Cheryl has better future income-earning prospects than Cheryl believes to be the case, there were no significant controversies in this case concerning the material facts.
As the defendants' evidence was not challenged, I have also accepted their evidence.
I have dealt with the facts to the extent that I have considered necessary in order to properly determine Cheryl's claim. I have not referred to some issues, either at all or in any detail, where the events occurred a long time ago, and where the resolution of uncertainties is not necessary for the determination of the proceedings. For example, I have not dealt with Cheryl's understanding that substantial loans were made to some of her siblings, and I have not considered in any detail evidence concerning the extent to which individual family members may have received relatively small distributions from the family business at a time so long ago that the amounts received would be of little significance to the issue of whether the Court should now make an order for additional family provision in favour of Cheryl.
Following a discussion on the subject between the Court and the parties during the course of submissions, I understand the parties to have agreed that the Court should determine Cheryl's application for further provision on the basis of her evidence as to her circumstances and the defendants' evidence concerning their circumstances. The Court has no evidence concerning the circumstances of the residuary beneficiaries other than Cheryl. The Court will proceed upon the basis that the settlement reached between Glenn and Kieran and the defendants is a proper and adequate outcome in relation to those beneficiaries' claims against the estate, and that the other beneficiaries, having notice of Cheryl's claim, have been content to leave it to the defendants, as the executors, to respond to Cheryl's claim in the manner that they considered to be appropriate, having regard to their knowledge of the circumstances of all of the beneficiaries.

Cheryl's circumstances

Cheryl said that she was born on 9 March 1976, which means that she is now 44 years of age. As noted, Cheryl was the youngest child of the 13 biological children of the deceased. Assuming that David has died, 11 of the children survive.
At the time of Cheryl's birth, her parents were living in a tiny house at Hamilton North. Cheryl slept on a portable bed in her parents' room for the first three years of her life. Later, she shared a room with her sisters Janine, Michelle and Louise.
Cheryl said that her relationship with the deceased was tumultuous from her birth, and that the household was one of physical and mental abuse. Marie admitted this claim, although Michael said that he did not know and could not admit it.
Marie agreed that the family household was at times one of physical and mental abuse, and that the deceased was physically and verbally abusive with all his children for many years. She said that, as the oldest daughter, she made efforts to shelter her younger sisters from that abuse to the best of her ability.
Marie said that the categorisation of household activity as physical and mental abuse would accord with modern views on that subject, but that, as she was growing up, she saw it as strong discipline much in line with the use of the cane in school rooms.
Marie said that the deceased was a strict disciplinarian and was prone to violent outbursts from time to time, mainly directed at his sons but sometimes directed at his daughters.
Marie recalled that the deceased maintained a number of straps, which hung on a wall at the family home. The site of the straps intimidated Marie and she assumed the other children as well, and was a deterrent to act contrary to the deceased's wishes.
Michael also agreed that the deceased was a strict disciplinarian, and that, by the time he was about nine years old, the deceased was under financial stress from maintaining a family of seven children. This pressure was, Michael said on reflection, a factor that caused the deceased to drink more and which led to violent outbursts that were directed towards Michael and his brother Terrence.
Michael said that, as he reached his mid-teens, the deceased began to moderate his drinking and became less violent.
Cheryl gave evidence of a number of incidents that she could remember, which she offered as examples of conduct demonstrating the way that she was treated by the deceased. Cheryl's evidence was that, because of what she considered to be the traumatic nature of her upbringing, she had very little visual memory of her childhood, and was not able to give much evidence of the specific ways in which she was treated by the deceased. Her counsel described the recollections that she did have as being vignettes.
Cheryl said that in 1980, when she was aged four, her sister Michelle was aged eight and her sister Janine was aged five, the deceased took the three girls to the beach. When the girls went into the water to dunk their bodies in the ocean, the deceased ordered them not to get out of the water. The deceased then went for a walk, leaving the girls in the water, when he knew that none of them could swim. When the tide started to get stronger, Cheryl and Janine got swept away onto nearby rocks. Cheryl became fully immersed in the water and began to drown. Michelle tried to save the younger girls, before two ladies came to rescue them. When the deceased returned from his walk along the beach, he yelled abuse at the two ladies who rescued the girls, and then turned his verbal tirade at the girls for getting out of the water without his permission.
In 1989, at age 12, Cheryl stopped speaking to the deceased. She said that she and her father had never really spoken that much anyway. The deceased was of the opinion that "children were to be seen not heard".
Cheryl recalled, from a very early age, that when the deceased would come into the lounge room where children were watching television, they were expected to get up and leave the room immediately and silently. If her male siblings dared question the deceased they would be subject to physical abuse. The girls were subjected to verbal and emotional abuse.
Cheryl said that, as a child, she would always tell her mother or her sisters that she was going to have a shower, so that the deceased would not walk in. Each time she had a shower, she would make sure that the window was closed and that there were no holes in the room for the deceased to look in.
In 1990, when Cheryl was aged 13, on an occasion when she was going to have a shower, she yelled to her mother that she was going to do so, so that her mother would not let the deceased walk in on her in the shower.
Cheryl said in her 26 November 2018 affidavit: 25. When I stepped out of the shower, I felt a cool breeze. When I looked around I saw that the window was open and dad was there holding a pipe with a mirror attached up to the window ledge. 26. It was then that I realised Dad had attached a mirror to a piece of pipe to create a make-shift periscope which allowed him to watch me in the shower. I screamed out "Mum" for my mother to come, so I could tell her what happened before I proceeded to put my clothes on under my towel. 27. I waited for him to leave and when I heard the back door close I ran up the stairs. When Janene (sic) came up the stairs to talk to me, I told her what had happened.
Cheryl gave evidence of a later incident, apparently in about 1993, when she confronted the deceased about him watching her in the shower. The deceased blamed it on Glenn, but Cheryl said: "No, I saw your grey hair."
Cheryl gave evidence that in 1990 she began to work in the family business in the office with Janine as her manager. She said: 32. Throughout the time that I was working in the family business, Dad's makeshift pipe periscope which he had used to watch me in the shower, sat on my desk as though it was a paperweight.
Cheryl did not attempt to prove that the deceased had in any positive way sexually molested her. She could give no evidence of recollections of that occurring. Cheryl believed that her inability to recall in any visual way anything about her early childhood was caused by the way she was treated by the deceased, but she accepted that there was no objective evidence of that having occurred.
Cheryl gave evidence that her sister Michelle claimed to have been abused by the deceased, and that Louise, who was 16 years older than Cheryl, had told her that Louise knew that Michelle, Janine and Cheryl had been sexually abused by their brother, David and the deceased.
Cheryl gave evidence that, in late 2013, the deceased pleaded guilty to four counts of sexual assault against Michelle. The deceased was sentenced with four separate good behaviour bonds and allowed to return home. Marie admitted that evidence.
Cheryl's brother, David, was charged with sexual offences involving Michelle at the same time as the deceased, and David disappeared the next day, never to be seen again.
Cheryl said that, in 2013, following the deceased being sentenced, she stopped all communication with all of her family, including her mother. She said that she thought that this was the best thing to do, as she could not bear the thought of having her children exposed to her father or her family's traumatic past.
Cheryl said of the consequences of her upbringing, in her 26 November 2018 affidavit: 129. I suffer emotionally and mentally due to my traumatic childhood and have previously sought counselling to assist me in dealing with my past. I suffer from panic attacks and flashbacks of abuse triggered by persons, scents, tastes, smells and locations that I experienced during my childhood. I have little visual memory of any moments of my childhood, including the abuse I suffered, unless triggered by one of my other senses. My mental condition has had a significant detrimental effect on my personal relationships over the years. 130. I feel as though my mood is getting lower over time and that I'm being triggered a lot more easily of late. I'm looking at attending my general practitioner and getting more counselling in the near future so as to try to get on top of my condition.
In cross-examination, it was suggested to Cheryl that she could increase her income by taking in more clients for the purposes of providing remedial therapy. Cheryl's circumstances require her to offer that service to clients from a room in her rented home, where she lives with her three sons. Cheryl's evidence was that her clients were mostly long-term clients who she trusted. In re-examination, Cheryl was reminded, at T 30.10, of the answer she had given in cross-examination concerning conducting her business at home, when she had said that she did not want strangers in her house for the safety of her children. Asked to explain her concern, Cheryl said: "Because I'm a single mum. I'm a girl. I'm vulnerable." From my observation at the time, Cheryl was emotionally upset by the need to focus on having to have strangers in her house in order to earn income from her profession.
I will now turn my attention to Cheryl's schooling, her profession, and her income-earning capacity.
Cheryl started primary school in 1981 and finished in 1987. The next year she commenced high school and ultimately graduated from year 10.
In 1992, at age 15, Cheryl wanted an apprenticeship with the family business, but the deceased told her that she was not allowed an apprenticeship because she was female. The deceased told her that she was only allowed to work in the office. There were two family businesses. One was a building company and the other an investment company. The investment business would buy land and get the building company to build residences on the land.
It was during this time that Cheryl worked in the office with the makeshift pipe periscope sitting on her desk, as mentioned above.
After only a few months, in 1992, Cheryl stopped working as an administrative assistant in the family business and started working at Kmart in Waratah doing data entry.
In August 1994, Cheryl temporarily left her job at Kmart, as she had saved up enough money to go on a holiday with her sister, Janine, to America.
In mid-September 1994, Cheryl resigned from her job at Kmart because she had decided to leave home so that she could get away from living with the deceased.
At the age of 18, Cheryl ran away from the family home to live in Wagga Wagga with her sister, Louise and her husband.
While Cheryl was living in Wagga Wagga, Louise and her husband took Cheryl to a counselling session at the hospital to try and help her to start to deal with the abuse that she believed that she had suffered at the hands of the deceased and David "and the fact that this was now all coming out in the open between us daughters".
After a week of staying at Louise's home, Cheryl moved into the home occupied by Terrence at Hamilton North.
In early 1995, Cheryl moved out of Terrence's home and into a rental property with her then partner, David Ellem, located at Hamilton North.
In 1996, Cheryl completed a Responsible Service of Alcohol course at the Leagues Club in Newcastle. She also commenced a computer course in Newcastle.
In 1998, Cheryl commenced working at Coles in The Junction in the Deli section and later on she was promoted and became second in charge of that section.
In 1998, Cheryl moved in with her mother and Janine to live in a house in Lambton owned by Michael.
In February 2001, Cheryl gave birth to her first son, Cadel. She was then living with her mother in a rental property in Waratah. At that time, Cheryl's mother had been separated from the deceased since 1994.
In 2001, Cheryl moved out of that rental home and into another rental home in Hamilton with Cadel and Cheryl's partner at the time, David.
In 2003, Cheryl and her partner David bought a two-story home in New Lambton. Cheryl's mother provided the $50,000 deposit, upon the agreement that she could live downstairs and the couple would repay the deposit plus interest when she moved out into a retirement home, or wanted the money for alternative accommodation. Cheryl's mother did not pay rent while she was living in the property, and the only outgoing she paid was for her own phone line and groceries.
In mid-2003, Janine and her daughter moved into the New Lambton property, sharing the downstairs living area with Cheryl's mother.
Following a disagreement in 2004, Janine was required to leave the home and consequently so did Cheryl's mother. Cheryl and David had to sell the house so that they could repay Cheryl's mother. That happened in August 2006.
Earlier in 2006, Cheryl and David separated whilst living under the same roof. Cheryl continued to work at Coles as a register assistant. During this time, Cheryl and David shared an on and off relationship.
After the sale of the New Lambton property, Cheryl and Cadel moved in with Michelle's family at The Junction. Cheryl stayed there for six weeks and paid rent.
In November 2006, Cheryl and Cadel moved into a rental property in Georgetown.
The following year, on 9 August 2007, Cheryl gave birth to her son Reef. David was the father. Cheryl was still living as a single mother at Georgetown and was on leave from working at Coles and surviving off a single parent pension.
Cheryl gave birth to her third son, Lynx, on 14 September 2009. Again, David was the father.
Cheryl returned to work at Coles in 2011 and did night shifts. David would come over and look after the children during the night and Cheryl would care for them during the day. David and Cheryl were still living separately.
At the start of 2013, Cheryl and her children moved out of the rental property at Georgetown and into their current home, which is a rented house at New Lambton. At this time, Reef was starting kindergarten.
It was at this time, in January 2013, when the deceased and Cheryl's brother, David, were charged with multiple counts of sexual assault against Michelle.
In 2016, Cheryl completed a Diploma of Remedial Massage Therapy at Newcastle TAFE.
In April 2017, Cheryl started working a couple of days a week at Charlestown Remedial Sports Injuries Clinic. Cheryl worked as a qualified massage therapist and as a sole trader/contractor. She split her earnings roughly 60% to 40% with the business owner, with Cheryl retaining the 40%.
On 4 September 2017, Cheryl left her job at Coles and started working in the clinic full-time.
Following the business owner suffering a heart attack in December 2017, in May 2018 he sold the building and retired and Cheryl became unemployed.
In April 2018, Cheryl set up her own business, operating as "Remedial Sports Injuries Treatment", from a room in in her rental home in New Lambton. The business commenced operating on 7 May 2018. The business initially performed well and Cheryl saw 21 clients during that month. She was still dependent on receiving Centrelink's Newstart and the family tax benefit, together with child-support, to supplement the income that she earned from the business to support herself and her children.
Unfortunately, in June 2018, Cheryl became increasingly unwell. She lost her appetite, felt nauseous and lethargic on a regular basis. That affected her ability to provide massage services to her clients. She only saw 13 clients in June.
In her evidence, Cheryl described the symptoms of her illness and the medical tests that she undertook. Her symptoms reduced her capacity to provide services to her clients and affected her mental health. She felt numb and increasingly depressed.
By December 2018, Cheryl was only able to provide services to seven clients.
On about 16 January 2019, Cheryl was diagnosed with having a large cyst on her upper uterus. Her general practitioner advised conservative management rather than surgical intervention.
During January 2019, Cheryl was only able to see eight clients. She continued to be dependent on Centrelink benefits.
Over time, Cheryl's weight had increased substantially.
On 14 February 2019, Cheryl attended a Biochemist Health Clinic and was diagnosed with leaky gut, which caused strain on her kidneys and her liver. Cheryl said that the toxins in her body were affecting her hormones and causing problems with her mental health.
Cheryl was prescribed supplements and a vegan diet to treat her condition. She felt an immediate improvement and lost 6 kg in eight weeks and felt her overall health improve.
By March 2019, Cheryl had lost a significant amount of weight and her aches and pains were decreasing. The business had picked up a bit as she felt physically able to service more clients.
In April 2019, the business improved as Cheryl felt more physically, mentally and emotionally able to provide her massage services, although, in that month, her mental health started to decline again and she began to go to yoga and to do meditation.
Between April 2019 and November 2019, the business continued to operate steadily with Cheryl seeing an average of 20 clients per month. During this period, Cheryl continued to be dependent on Centrelink's Newstart, the family tax benefit and child support to supplement the income she received from her massage therapy business to support herself and her children.
In October 2019, Cheryl applied for an early partial payout of her superannuation on financial hardship grounds. She withdrew $10,000 gross, which resulted in a net payment of $7,500 after tax. Cheryl used $5,000 of this money to pay off some of her debts, including a MasterCard debt, and she used the remaining $2,500 to fund a trip to Thailand to complete a Thai Yoga Massage Course, as part of her Continual Professional Development points. The course was the least expensive one of two courses approved by Cheryl's Association. Cheryl said that the course in Thailand ran for three weeks and was needed so that Cheryl would get the CPD points to continue to keep practising as a massage therapist and improve her credentials.
In February 2020, Cheryl got a job as a remedial massage therapist at the Movement Collective at Waratah. Cheryl was working five days a fortnight earning on average $400 gross. She had to pay the Collective a percentage of her takings.
In late March 2020, Cheryl's work through her business at her house and the Movement Collective was only just starting to get a bit more lucrative when the COVID-19 pandemic caused the enforced closure of those activities. Cheryl had to cease her work at the Movement Collective in Waratah.
Following the introduction of the restrictions, Cheryl completed a NSW online COVID training course for health professionals including massage therapists. For the first few weeks of March, Cheryl did massage work following the advice of her Association.
After getting the all clear from her Association and with the appropriate COVID-19 training, Cheryl has continued to operate a business from the massage room at her home, servicing regular clients who require treatment. On average between March and May 2020, Cheryl has worked approximately two days (sometimes three, sometimes only one) per week and has seen 27 clients during those three months.
On approximately 11 May 2020, Cheryl accessed another early partial payout of her superannuation, in the sum of $10,000 net. She was able to get this payment as she met the criteria for the COVID-19 economic response, as a person that had been receiving the family tax benefit for a continuous period of time. Cheryl used $5,000 of this money to pay off the remainder of her MasterCard debt, $3,000 to get on top of her rent, and she put $2,000 into her savings.
In May 2020, Cheryl enrolled to study full-time at Newcastle TAFE to complete a Certificate III Individual Support for Ageing. She will be attending this course Wednesday, Thursday and Friday from next semester, according to her 28 May 2020 affidavit. Cheryl enrolled in this course so that she could focus on her remedial massage business, and still gain qualifications which would allow her to get more permanent and sustainable work should Australia experience another pandemic like COVID-19. Cheryl said that she needed a sustainable and reliable job to support herself and her family.
Unfortunately, Cheryl's son Cadel has scoliosis and pectus excavatum and has undergone extensive surgery to control the symptoms of these conditions.
In November 2016, Cadel underwent an anterior chest wall reconstruction, whereby a titanium rod was inserted into his rib cage to support the sternum and to help expand the anterior thoracic wall of his chest. The surgery was performed at Westmead in Sydney. The surgical procedure was covered under Medicare. Following the procedure, Cadel underwent pain management and had to go to various appointments. Cheryl paid for all of the appointments and the medication. She used her long service leave taking Cadel to and from Sydney.
Cadel commenced a TAFE course in Newcastle in early 2018. For the first six months of the course Cadel did not perform well, as he did not apply himself to his studies. Cadel assisted Cheryl with picking up and dropping off Reef and Lynx from their school at New Lambton South. At the time, Reef was in year 5 and Lynx was in year 3.
Cheryl said that Lynx and Reef are already displaying symptoms of the same disease from which Cadel suffers. On 26 May 2020, Reef had an x-ray that revealed that he has scoliosis.
Cheryl is unmarried and is not supported by any other person, although she continues to receive child support for her children from David.
Cheryl gave the following evidence concerning her income, assets and liabilities as at 28 May 2020. Income Earnings including Centrelink receipt of $26,000 estimated for the financial year ending 30.06.2020 E $38,980.00 Child support from David for the financial year ending 30.06.2020 $6,856.00 Total income E $45,836.00

Assets Savings E $1,000.00 Superannuation E $35,612.29 Motor vehicles E $3,000.00 Household contents E $3,000.00 Total assets E $42,921.29

Cheryl said that she had no liabilities at the date of her affidavit.
Cheryl gave evidence concerning her aspirations for the future.
Cheryl said that she aspires to be able to buy a home for herself and her children. A suitably sized property in the Newcastle area where she has established her business and her children go to school would cost about $600,000. The deposit would be about $60,000.
Cheryl accepts that she will not be able to buy a home unless her business becomes more profitable and she is able to secure an appropriate mortgage.
In order to further her business, Cheryl needs a sum of approximately $5000 to undertake an intensive seven-week/300-hours teachers training course in Thai Yoga Massage. Cheryl has already done 90 hours of this course by completing her three weeks of training in Thailand in 2019. This course is recognised and approved by her Association, and would allow her to teach Thai Yoga Massage in Australia.
Cheryl needs to undertake further courses to continue to hold her qualifications and be eligible for the government health rebates that benefit and subsidise the costs of her services for some of her clients. She would like a sum of money to be able to continue to undertake this ongoing professional education.
Cheryl would like a sum of money to put aside for foreseeable future treatment and surgery that Reef will require to treat his scoliosis. All of her boys need dental and orthodontic treatment that Cheryl cannot afford. Reef needs braces. Cheryl would like enough money to pay for the dental and orthodontic work that they need and to have her family covered by private health insurance.
In April 2020, Cheryl returned to the Biochemist Health Clinic as she noticed that her weight was fluctuating again. Cheryl has been prescribed more supplements. The average cost of one consultation and supplements and vitamin C is $250. Cheryl would like a sum of money to allow her to continue to get treatment, as it is the only treatment that she has found that has helped her to reclaim her health.
Cheryl said that she continues to suffer emotionally and mentally due to her traumatic childhood, and she suffers panic attacks and flashbacks of abuse triggered by persons, scents, tastes, smells and locations that she experienced during her childhood.
Cheryl has discussed her psychological symptomatology with her general practitioner, and if she had the funds, she would like to get treatment from a psychologist or psychiatrist to help her deal with and improve her mental health.
As Cheryl is presently required to conduct her remedial massage business from a room in her rental property, she would like a sum of money to be able to afford to lease and fit out proper commercial premises to conduct her business from.
She would like to be able to supplement her savings and her superannuation, and to replace her car that is 14 years old and in poor condition. A reliable vehicle would also allow her to conduct home visits with the patients of her remedial massage business.
Finally, Cheryl would like a fund to protect her from the unexpected contingencies in life.

Michael's circumstances

Michael was born on 8 October 1957, and is now 62 years of age. He is the oldest of the deceased's children.
Michael was removed from school at the start of what is now known as year 10, and required to enter the family business that was then a partnership trading as TV & GC Webber. The reason was that Michael's parents could not afford to pay their apprentice.
Michael attended night school four nights a week while working full-time to obtain a certificate of attainment for year 10.
Between 1972 and 1977, Michael was often short-paid or not paid at all, because of the family's increased living expenses, as by that time the family had grown to include 12 children. Michael did not receive holidays except for seven days over Christmas and public holidays.
Between 1979, after Michael's marriage, and 1984, Michael left the family business and worked as a sole trader. Michael received his full building licence in 1983.
In 1984, the deceased suffered a heart attack at the age of 51. From that time the deceased was unable to work full-time and, in order to help, Michael returned to the family business as a manager.
Michael gave evidence concerning the activities of the family business from 1989, when Newcastle suffered an earthquake that resulted in a large increase in work for the business.
In March 1993, Michael instigated the purchase of another company to act as a development company with the family business.
In early 2011, the deceased resigned due to his ill-health, and later in that year the company through which the family business was operated went into voluntary liquidation. Michael estimated his personal financial loss due to that liquidation as being $100,000.
Michael said that, from 1995 to about 2005, the deceased was paid a "directors fee" of $50 per week to supplement his pension. The deceased continued to have an active role in the business, even though he was restricted by ill-health.
Michael said that, when the investment company was ultimately wound up, it was owed $6,067 by Cheryl, as recorded by the deceased. In cross-examination, Cheryl acknowledged that the loan had been recorded as being owed by her, although she said that the money had in fact been spent by one of her sisters.
Michael said that, following a downturn in building renovation in about 1993, he moved the family business towards institutional maintenance and commercial construction, and between 1998 and 2010 the business was at its peak.
Michael suffered a heart attack in June 2008, and was diagnosed with chronic heart disease. The effect of his illness and a coincident over-commitment to a particular building contract was that the family company was placed into voluntary liquidation.
Michael gave evidence concerning the criminal charge faced by the deceased in 2013 and his conviction.
Michael said that he understood that the deceased pleaded guilty on a utilitarian basis, and that he always maintained he was innocent of all charges. Michael annexed to his affidavit part of a letter from the deceased's solicitors in respect of the prosecution. The letter recorded that the deceased had always given instructions that he was not guilty but that, after having been advised of the likely cost of the defence, the deceased gave instructions that he would plead guilty on a utilitarian basis.
It is appropriate at this point to note that there is no issue in these proceedings as to whether or not the deceased was guilty of the charges that were laid against him. Cheryl has not positively alleged that the deceased was guilty. The fact remains that the deceased pleaded guilty, and that evidence given to the police concerning the deceased's conduct in relation to Michelle led to the charges being laid.
From Cheryl's perspective, the fact of the charges being laid and the deceased having pleaded guilty would naturally cause significant emotional trauma, and would also exacerbate the consequences of Cheryl's own recollection of her relationship with the deceased and her experiences during her childhood.
Michael said that, throughout his life, he always maintained a strong relationship with the deceased.
As I have recorded earlier, Michael accepted in his evidence that the deceased was a strict disciplinarian and that his drinking lead to violent outbursts by the deceased, which moderated when Michael reached his mid-teens.
Michael said in par 48 of his 31 January 2019 affidavit: 48. Overall I had a strong caring and respectful relationship with the deceased I would visit him several times a week throughout the last 30 years of his life, during these visits the deceased would constantly ask for any news or gossip concerning all of his dependents he always responded with positively (sic) and with only kind words to any information I could share with him.
Michael said that, during the later years of the deceased's life, he was on call for trips to the hospital emergency ward, and would visit the deceased daily when he was admitted to hospital, and consult with doctors and relay information to other family members.
Michael said that, in his experience of the deceased, the deceased was always pragmatic, and Michael believed that the deceased expected his will to be executed according to his terms, as he spent several years fine-tuning his will, making adjustments when the circumstances of individual dependants changed, and he was fully aware of what each dependent would receive.
Michael and his wife own a house at Merewether near Newcastle with a value of approximately $1,250,000, subject to an outstanding mortgage.
The amount of the loan as at 20 May 2020 was $193,007.
Michael and his wife are also liable with two other people for a debt incurred by a now deregistered company in the amount of $92,857.
Recently, Michael's wife has inherited approximately $1,500,000 from her father. Of that sum, $300,000 was used to reduce the home mortgage, and an amount of $192,998 was paid into an account at the National Australia Bank to offset the interest on the joint home loan.
The balance of Michael's wife's inheritance was invested in a share portfolio in the joint names of Michael and his wife. As at 20 May 2020 the shares were valued at $727,880.
Michael and his wife also had the sum of $78,635 in two further savings accounts with the National Australia Bank as at 20 May 2020.
Consequently, as at 20 May 2020, Michael and his wife had net assets of about $1,963,649, putting aside Michael's interest in the deceased's estate. Obviously, Michael's wife's inheritance was largely responsible for the couple having net assets of that value.
It is also necessary to take into account the share of the deceased's estate that Michael will receive under the will, as varied by the orders made in the proceedings commenced by Glenn and Kieran.
Michael will be entitled to half of the home at Hamilton North under cl 3.4 of the will. As I have noted above at [8], the deceased's home at Hamilton North was valued at $625,000 in the inventory of property annexed to the grant of probate of the deceased's will. Michael explained, in his 1 June 2020 affidavit, that a formal valuation of the property at $540,000 had been obtained as a result of the discovery of contamination in the groundwater at the property. That valuation has been agreed between the parties, and is recorded above at [14]. Michael's share will be $270,000.
Michael will also be entitled to the value of the NIB shares under cl 3.2 of the will. That amount is $13,200: see [14] above. The total is $283,200.
From that must be deducted Michael's share of the amount to be paid by Michael and Marie to Glenn and Kieran as a result of the settlement. As I understand it, Michael will be responsible for half of the agreed $35,000 for costs. He will also be responsible for half of the lump sums agreed to be paid to Glenn and Kieran after allowance is made for what would have been their shares in the residuary estate. As appears from [24] above, the total of the additional payments is $20,876.51 and $16,003.02, giving $36,879.53. Michael's share will be $18,439.77.
Consequently, Michael's entitlement to $283,200 from the estate will be reduced by the total of $17,500 and $18,439.77, being $35,939.77. Michael's final share of the estate, before the effect of Cheryl's proceedings is taken into account, will therefore be $247,260.23.
Michael gave evidence that he has been working as a self-employed building consultant undertaking building inspection work. His pre-COVID-19 income was approximately $1,000 per week.
As a result of the pandemic, the contract business that Michael had was effectively suspended, and at the time of his 1 June 2020 affidavit he was in receipt of Job Keeper payments of $750 per week.
As I have recorded above, Michael suffers from heart disease and is required to have the stent inserted to assist blood flow to his heart reviewed each year by his cardiologist.
Michael's wife has recently suffered an optic nerve stroke and has lost the vision in one eye. Prior to that injury, she had reduced her part-time working week by one shift and was in receipt of the gross wage of $720 per week.

Marie's circumstances

Marie was born on 29 July 1959, and is 60 years of age. She is the second of the deceased's children.
Marie attended primary and high school in Newcastle but left school at age 15 to work at Coles.
By the time she was 17 in about 1976 she had saved $1,000 from her work, which she loaned to her parents to start a small business at Hamilton North.
In 1979 Marie, married her first husband and left the family home, but within a few years that marriage came to an end.
Marie married her second husband on 18 October 1986.
Marie gave evidence that was slightly at odds to that given by Michael concerning the deceased suffering a heart attack in about the middle of 1988 (as opposed to 1984) and essentially ceasing work. This difference is not material. Marie started to work in the family business after the 1989 earthquake in Newcastle.
In December 1994, Marie left Newcastle to reside in the Northern Territory with her second husband, and from that point in time she had little contact with her siblings.
Marie gave evidence of her dealings with the family businesses, including that in 1987 she borrowed $3000 to buy a car and repaid it within two years.
Marie referred to the fact that the family members were provided with a dividend of $500 or $600 each Christmas for a number of years before the family investment business was wound up.
After the breakdown of Marie's second marriage, she returned from the Northern Territory in 2014, and resided in the deceased's Hamilton North property and became her father's carer from that time until the time of his death.
During that period, Marie assisted the deceased to manage the home by undertaking cleaning, doing the household shopping, attending to manage outgoings on the property and the preparation of some meals for the deceased.
Marie still resides in the Hamilton North property.
She is not employed and manages financially by using funds available to her from working, saving and investments over her working life whilst single and in marriages. Marie does not receive any government benefits.
She spends a good deal of her time assisting two members of the local church, who are both 80 years of age, by taking them to medical and other appointments and assisting them with their household shopping.
Marie meets the costs of Newcastle Council rates of $529 per quarter and Hunter Water rates of $339 per quarter, along with gas and electricity used through Energy Australia.
Marie said in her 1 June 2020 affidavit that, since the date of her earlier affidavit, she had paid $33,000 towards the maintenance and repair of the Hamilton North property, including fixing a shower, the fitting of a toilet inside the residence, and electrical work in the kitchen and laundry to bring them up to good working order.
As a result of her savings and the receipt of the monies from her second husband, pursuant to orders made in the Family Court at Adelaide on 29 January 2019, as at 1 June 2020, Marie had the amount of $326,763 deposited in a savings account in the Westpac Bank.
The balance of Marie's superannuation fund, including funds transferred as a result of the family law property settlement with her former second husband, now total $563,101.
The total amount of the funds to which Marie is entitled is $889,864.
Marie's half share in the Hamilton North property under cl 3.4 of the deceased's will is $270,000. The value of the shares in IAG given to her by cl 3.1 is $7,725.41: see [14] above. The total is $277,725.41.
As Marie's share of the net lump sum and legal costs payable to Glenn and Kieran should be the same as Michael's share, being $35,939.77, the total value of Marie's share in the estate should now be $241,785.64.
Marie's financial position is much less secure than Michael's. In particular, the only home available to Marie is the deceased's home. There was no evidence of the arrangement between Michael and Marie whereby Marie has been able to live in the home by herself.
Marie has not given any evidence concerning how she might secure proper accommodation if, by reason of the orders in the proceedings commenced by Glenn and Kieran, or by reason of orders in these proceedings, it is necessary for the defendants, as executors of the deceased's estate, to sell the North Hamilton property.
Consequently, the Court must determine the present application without having any information about the effect that any orders that the Court may make may have on the arrangements for Marie's accommodation.
Marie suffers from CREST syndrome which gives her pain and discomfort like arthritic pain. She has difficulty sitting or standing for long periods of time and takes medication for that condition.
Marie has also been advised by her doctor that she will need to have a bone spur on her neck removed to improve her general well-being.

Statutory principles

As a child of the deceased, Cheryl is an eligible person for the purpose of making her application pursuant to s 57(1)(c) of the Succession Act.
Cheryl's application was made within the 12 month period required by s 58(2) of the Succession Act.
The Court's power to make an order in Cheryl's favour is found in s 59 of the Succession Act, which relevantly provides: (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made…
Section 60(2) of the Succession Act sets out a non-exhaustive list of the matters that the Court may take into account in determining the application of s 59(1)(c) and s 59(2) of the Act. The material parts of that provision are: (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, … (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.
In the present case, the factors in pars (a) and (b) are of particular significance. That is because Cheryl is the adult child of the deceased, and she was entirely estranged from the deceased, according to her own evidence, from the age of 12 in 1988 to the deceased's death in 2017, almost 30 years later. Cheryl actively avoided contact between herself and her children and the deceased.
Although the defendants contested Cheryl's claim, they did not submit that the circumstances that Cheryl was a child of the deceased and entirely estranged from him for the period referred to above was a ground for the Court to deny the claim, if Cheryl could otherwise establish that additional family provision ought to be made for her under the principles that govern applications of this type.
I consider that, in the special circumstances of this case, Cheryl's application is not significantly undermined by the fact that she is a child of the deceased who was entirely estranged from him for a very long period.
In explaining my reasons for this conclusion, I will, with respect, restate the relevant principles as collected by Hallen J on a substantial number of occasions. As his Honour has stated the principles in a way that I consider is generally accepted by the judges of this Court who decide applications for family provision orders, I consider that it is undesirable for trial judges to restate the principles in different terms, where that is not necessary to deal with special features of the case at hand.

Cheryl as an adult child of the deceased

Hallen J has relatively recently stated the principles that are applicable to applications by adult children of the deceased for family provision orders in Pilotto v Cosoleto; Papi & Papi v Cosoleto and Cosoleto v Cosoleto [2019] NSWSC 1454. The same principles have been stated in many other decisions. Relevantly to the present case, his Honour said: [218] I have, in many cases, referred to some general principles in relation to a claim by adult child of the deceased. I repeat the principles that I have set out: (a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801, at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452, at [121]; Salmon v Osmond [2015] NSWCA 42, at [109]. (c) Generally, also, "the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia, at [58]. (d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, at 45; Taylor v Farrugia, at [58]. (e) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 , at [179]-[182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17]. (f) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 at 149. [219] A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox at [21] and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson [2015] NSWCA 297, at [62].
In the present case, given the modest value of the deceased's estate, Cheryl has recognised that there is no question that she could be provided with a house, or that the estate could look after her into the future. As she entirely lacks reserves, she seeks a relatively modest lump sum to provide her with some limited financial security, and to protect her against the ordinary vicissitudes of life. She hopes that, if she becomes able to increase the income generated by her remedial therapist business, she will be able to draw on the lump sum for a deposit, to enable her to buy a modest home in the area in which she lives, and be able to service the necessary mortgage with her income. In Cheryl's case, she was given virtually no start in life by the deceased. While she received some modest amounts from the family business many years ago, she has effectively had to make her own way in life. She was not encouraged or supported to extend her education beyond the school certificate. The deceased declined Cheryl's request to become an apprentice through the family business. She has had to gain her qualifications as a remedial therapist through dint of her own efforts and at her own cost. Cheryl has little by way of financial reserve to protect her and her children from the ordinary vicissitudes of life.
Taking all of the evidence into account, I am satisfied that the community would expect the deceased to have provided Cheryl with a buffer against contingencies that was reasonable when measured against the modest size of his estate.
In these circumstances, measuring the history of Cheryl's relationship with the deceased against the circumstances of her life and her needs, she is not, in my view, disentitled from her claim for a lump sum by way of family provision relief by reason of the fact that she is an adult child of the deceased.

Cheryl's estrangement from the deceased

Concerning the significance of Cheryl's long-term estrangement from the deceased, Hallen J stated the following principles in Pilotto v Cosoleto: [223] On the topic of estrangement between parent and child, in Underwood v Gaudron [2014] NSWSC 1055, I set out the relevant principles at [230]-[233]. An appeal was dismissed: Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269, with the summary of principle not disturbed on appeal. [224] That summary of the principles was also referred to by Ward JA (as her Honour then was) (and with whom Meagher JA agreed) without any dissent, in Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195 at [95]. It was also referred to, more recently, by Holt AsJ in Nicholas v Tubb [2016] TASSC 53, at [21], with approval, in Toscano v Toscano [2017] NSWSC 419, by Robb J, at [90], and by Kunc J in Condello v Kim [2018] NSWSC 394, at [190]. [225] Relevantly … the following passages of what I wrote in Underwood v Gaudron, at [230]-[232], remain apt: … Because, in this case, there is a factor raised by the deceased (and by Mary and Kathryn) that bears on the quality of the relationship, being that Helen was estranged from the deceased for about 20 years before death, it is necessary to set out some other general principles which should be remembered: (a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33]. (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88]-[94]; Foley v Ellis. … (c) There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to 'ample' provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. (d) As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574-575, per Kirby P (with whom Hope and Priestley JJA agreed): 'If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will.' (e) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. (f) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]. (g) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102]. In Andrew v Andrew, Basten JA endorsed what I had said about estrangement, much of which is set out above, as follows: 'As explained by the primary judge, the term estrangement, which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties….' [226] Acrimony or estrangement does not necessarily destroy the bonds of parental ties: Diver v Neal [2009] NSWCA 54 at [27]. In this case, there appears to have been no acrimony, but simply estrangement between Milvia and the deceased and between Luella and the deceased.
It is necessary in the present case to have regard to the particular circumstances that led to Cheryl being estranged from the deceased. They are largely related to the deceased's conduct towards Cheryl, his youngest child, as well as his other children. The evidence establishes that life in the deceased's family was tumultuous, and that the deceased subjected his children to significant physical or emotional abuse and emotional deprivation. Apparently, he was an extremely strict disciplinarian, and did not encourage warm and nurturing relationships with his children - at least in the case of his younger children.
The Court was only given evidence of isolated incidents of specific conduct of the deceased towards Cheryl that would naturally have the effect of diminishing the bonds of respect and affection of the daughter for her father. I refer to the incident where the deceased left Cheryl and her sisters in peril of drowning, and berated their rescuers. I refer also to the deceased's conduct in spying on his 13-year-old daughter in the shower. That was reprehensible conduct on the part of the deceased, from the perspective of community expectations, and was aggravated by what seems to have been the gratuitous placing of the makeshift periscope within Cheryl's sight while she was working in the family business as a young woman.
There was no specific evidence of sexual misconduct by the deceased in relation to Cheryl other than the episode with the makeshift periscope. The evidence concerning Michelle is at least a little indecisive, notwithstanding the deceased's guilty plea. It is difficult for the Court to accept that the deceased, given his strong religious views, would have accepted a conviction as a sex offender in relation to his own daughter for 'utilitarian reasons'. However, I am satisfied that the evidence justifies a finding that the deceased's conduct towards some of his daughters generated a justifiable level of fear and distaste on the part of Cheryl that, in the whole of the circumstances of the relationship between Cheryl and the deceased, caused Cheryl to run away from home; which resulted in her estrangement from the deceased, and her loss of an effective, nurturing family from the early days of her womanhood. I say that, bearing in mind the evidence that Cheryl continued to have a relationship with her mother and a number of her siblings, but the evidence seems to justify the conclusion that the family was largely fractured.
Principle does not permit the Court, however, to make a family provision order on the basis that the applicant is entitled to reparation or compensation for wrongful conduct by the deceased towards the applicant.
Again, I take the relevant principles to have been correctly stated by Hallen J in Harris v Carter [2020] NSWSC 196: [158] Yet, just because a child has been neglected during the joint lives of the parent and the child, the Court should not, necessarily, right the wrong thereby done, by granting an order for provision out of the parent's estate without reference to the requirements of the Act. Provision should not be made merely for the purpose of holding a deceased person to account for what might be regarded as unacceptable behaviour during his, or her, lifetime (although, of course, a deceased person's conduct may be considered in determining whether to make a family provision order and the nature of any such order). The focus of the Act is not to somehow punish the deceased, or to provide for reparations in order to right past wrongs, or to compensate the Plaintiff for the deceased's limitations as a parent. [159] As I wrote in Savic v Kim [2010] NSWSC 1401 at [82]: It is not the purpose of the Act to punish, or redress, past bad, or unfeeling parental behaviour, where that behaviour does not still impinge on the applicant's present financial situation. [160] 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 [2010] VSC 466 at [57] (Hargrave J).
Consequently, while the Court should not make any family provision order in favour of Cheryl to compensate her for the consequences of the deceased's conduct towards her that the Court may consider would be regarded as blameworthy by the community, the Court is required to take into account those consequences to the extent that they engage the statutory principles contained in s 59 of the Succession Act that govern the making of family provision orders.
Thus, the Court should have regard to the circumstances that Cheryl was denied an apprenticeship because she was female, she left school and home early to work in Kmart and Coles to support herself, she was forced to live a relatively peripatetic existence, eventually in rented accommodation, and she was able to obtain certification as a remedial therapist relatively late, and at a time when her obligations to care for her three sons has substantially impaired her ability to build a sustainable remedial therapy business. Other factors have also affected Cheryl's financial circumstances, such as the failure of her relationship with her partner, David, notwithstanding that the relationship led to the birth of Cheryl's three sons. The medical disabilities from which the sons suffer has also impaired Cheryl's financial prospects, and that is a matter that is not attributable to Cheryl's family circumstances.

General principles

The Court must first decide whether the provision for Cheryl in the deceased's will was not adequate for the proper maintenance, education or advancement in life of Cheryl, as required by s 59(1)(c) of the Succession Act, and, only if that requirement is satisfied, does the Court make an order under s 59(2) for provision in favour of Cheryl out of the estate of the deceased, as the Court thinks ought to be made for her maintenance, education or advancement in life.
Both of these determinations are required by the statutory provisions to be made having regard to circumstances as they exist as at the time when the Court is considering the application and, in an appropriate case, making the order.
The first question, whether the deceased has made adequate provision for the applicant, is a question of objective fact whose determination involves an evaluative judgment, and is not usually capable of precise or mathematical explanation: see the cases cited by Hallen J in Pilotto v Cosoleto at [176] and [177]. Section 59 of the Succession Act does not prescribe criteria for the making of the required determinations, although s 60(2) sets out a non-exhaustive list of matters that may be taken into account, where they are relevant to the circumstances of the particular case. The weight to be given to the factors may differ from case to case, and ultimately the Court must make an intuitive assessment having regard, at the one time, to all relevant matters.
It is fundamental that s 59 of the Succession Act does not speak solely in terms of "adequate" provision for the applicant, but requires that the provision be "adequate" for the "proper" maintenance, education or advancement in life of the applicant for further family provision. It is well-established that, while the determination of what is adequate tends to be an objective consideration, which can often to a considerable degree be determined in financial terms, the requirement that the provision be proper introduces wider considerations, involving more subjective notions concerning the size of the estate, the relationship between the deceased and all persons having a call on the deceased's bounty, and the competing claims of those persons, among other matters.
As Dixon CJ and Williams J said in McCosker v McCosker (1957) 97 CLR 566 at 571-572; [1957] HCA 82: It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent.
"Adequate" and "proper" are inherently relative concepts; there are no fixed standards, and the Court must apply the statutory provisions having regard to "its own general knowledge and experience of current social conditions and standards": Goodman v Windeyer (1980) 144 CLR 490 at 502; [1980] HCA 31 per Gibbs J.
The Court must give proper weight, in an appropriate way, to the judgments made by the deceased in formulating his or her will concerning what provision is adequate and proper for each potential beneficiary. As White JA said in Sgro v Thompson [2017] NSWCA 326 at [86]: I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is 'proper'. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.
In the present case, in addressing the terms of his will, the deceased was faced with the reality that he had a relatively modest estate and 13 children. He had separated from his wife and made a financial settlement with her. It is clear from the terms of the will that the deceased believed that his two eldest children, Michael and Marie, had by some margin the greatest call on his testamentary bounty, as he divided his home between them and gave each one of his two parcels of shares.
Although the evidence of the relationship between Michael and Marie and the deceased was not extensive, there was enough evidence to make this aspect of the deceased's testamentary wishes understandable. Michael appears to have managed the family business over a considerable number of years, particularly after the deceased suffered his initial heart attack, and Michael involved the deceased in the business. Michael maintained a relationship with the deceased, and assisted him with his needs in the deceased's final years.
Marie, on the other hand, resided at a distance from the deceased for many years, but returned to the deceased's home in 2014, and then lived with and cared for him up until the 3 February 2017 date of the will, and thereafter until the deceased's death on 20 November 2017.
As appears from the terms of the will, the deceased decided to give a substantial part of the residue to Terrence and slightly more to David and Kieran than the 1/20 of residue that he gave to the balance of his children, including Cheryl.
There is no evidence concerning the relationship between any of the children and the deceased other than the parties to these proceedings.
The Court must avoid speculation, but it does appear that the absolute number of the children sired by the deceased had the effect that the deceased's personal and emotional connection with his children became attenuated with their increasing numbers.
Cheryl's application does not seek entirely to disturb the deceased's testamentary wishes, at least in so far as Cheryl invites the Court to make an order for her further family provision that reduces the deceased's relative preference for Michael and Marie, but without substantially destroying those preferences.
While the deceased was a capable testator, and made testamentary provisions in his will that are readily explicable from his personal perspective, I do not consider this to be a case where the Court should proceed upon the basis that the deceased has made an assessment of what was adequate for Cheryl's proper maintenance or advancement in life from a "superior position" to that of the Court, to use the words of White JA in the extract from Sgro v Thompson set out above. The deceased's testamentary deliberations were likely influenced by his own perceptions concerning the propriety of his own conduct towards Cheryl, and would have been made in substantial ignorance of Cheryl's objective needs and circumstances.
Having regard to the financial circumstances of Michael and Marie, as set out above, and considering the evidence concerning the condition of each of those beneficiaries' health, and in the absence of any evidence concerning the competing needs of the other beneficiaries, I am satisfied that Cheryl has established that the provision made for her in the deceased's will is inadequate for her proper maintenance, education and advancement in life.
That provision is presently expected to be $3,373.49. On any view, in Cheryl's circumstances as set out above, that sum will not objectively be adequate. When the relative disparity in the financial circumstances of Cheryl, on the one hand, and Michael and Marie on the other hand, are given due weight, then even accepting the reality of the stronger bond between the deceased and Michael and Marie, when due allowance is made for the significant connection between the reasons for Cheryl's circumstances and the cause of Cheryl's estrangement from the deceased, I find that the provision made for Cheryl in the deceased's will was also not proper.
The most significant determinant of what provision would be proper in the present case is the size of the remaining estate and the need to give adequate weight to the deceased's testamentary wishes as expressed in his will. Additionally, the estate has already been depleted to some extent by the orders made in the proceedings commenced by Glenn and Kieran.
Cheryl, through her counsel, recognised that the Court could do no more than to make an order for a greater lump sum to be paid to Cheryl than that for which the will provides. Although all of Cheryl's expressed aspirations are reasonable and appropriate, Cheryl accepted that they could not all be accommodated by even the highest amount that Cheryl could ask the Court to order that she be paid out of the estate.
Cheryl submitted that the evidence justified the making of an order that she be paid a lump sum of $100,000, but that, having regard to the reality of the size of the remaining estate, the Court should make an order that she receive in total lump sum of $75,000 plus an order that her costs in the agreed amount of $40,500 be paid out of the estate.
The defendants submitted that Cheryl had not established an entitlement to an order for further provision under s 59 of the Succession Act, but, in the alternative, if any such order was made, it should be "modest". Counsel for the defendants approached his task in a very proper way, and focused on the relatively moderate size of the remaining estate, and the proposition that the deceased was entitled to structure his affairs in any way he saw fit. Counsel also referred to the small dividends of about $500 that Cheryl received for a number of years, and the fact that she was recorded as having been loaned about $6,000 from one of the family businesses. While that appears to have been the case, as I have noted, above the evidence is equivocal, and it is likely that the money was in fact spent by one of Cheryl's sisters. Counsel also referred to the fact that Cheryl had been employed in the family business after she left school, although the evidence shows that this was only for a short period.
Counsel acknowledged that Cheryl had urged on the Court that she is in an urgent and desperate financial position, but counsel submitted that the cross-examination of Cheryl had established that she "has a small but resilient business, with regular, it would seem, clientele". Although the business provides Cheryl only with a modest income, she has obtained skills as a businesswoman when she was employed as a massage therapist. Counsel acknowledged that Cheryl's means were modest at the moment, but he suggested that she was able to enlarge her business by, for example, opening a website.
The problem is that Cheryl is obliged to accommodate herself and her family in a rented home, from which she operates her remedial therapy business from a room set up for that purpose. She does not have capital to expand her business or establish it on a commercial basis. To the extent that she invites clients into her home, where her children also live, given her vulnerability as a woman and a single mother, there are real limitations on the extent that she should be expected to invite strange potential new clients into her home. Her younger sons are presently 12 and 10 years of age, so that it will be many years before Cheryl is freed from the immediate need to care for her children and to convey them to and from school. She is presently getting some help from Cadel, but that must be balanced against the health needs of her children.
A suggestion was made, albeit faintly, that Cheryl may not have pursued the expansion of her business, because that would probably lead to the reduction of the government benefits that she presently receives. I do not accept that Cheryl has moderated her business aspirations to preserve her entitlement to government benefits. In my view, the circumstances that entitle Cheryl to receive those benefits are real, and are presently inescapable. Cheryl acknowledges her aspiration to build up her business in the future, and if she is successful she may be able to borrow money to acquire her own home. But the probability is that Cheryl will be constrained in that endeavour, at least during the childhood of her children, given her complete lack of available capital to expand her business and to provide for other urgent family needs.
As I have recorded above, after allowing for the effect of the settlement of the claims made by Glenn and Kieran, Cheryl is entitled to receive $3,373.49 (see [24]), Michael is entitled to receive $247,260.23 (see [163]), and Marie is entitled to receive $241,785.64 (see [188]).
In a case such as the present, the Court is not realistically able to determine the appropriate order for further provision in favour of the applicant by objectively taking into account the cost of the applicant's needs in relation to the value of the estate. The remaining value is simply too low, and it is not feasible for the Court to make an order that meets the applicant's actual needs. The Court must undertake a judgment exercise that achieves what appears to be the most satisfactory balance. In small estates, the need to provide for the applicant's costs can inhibit the Court's ability to strike that balance. I do not consider the amount of the costs incurred by Cheryl in the present case to be unreasonable. Unfortunately, the costs of prosecuting a family provision application are not uniformly sensitive to the value of the estate, and a certain amount of costs will need to be incurred whatever that value may be.
If the Court were to award Cheryl the lump sum of $75,000 that she seeks, together with her costs on the ordinary basis of $40,500, the additional amount payable out of the deceased's estate would be $112,126.51, after allowing for the $3,373.49, which is Cheryl's present share in the residuary estate. Cheryl's counsel submitted that it would not be unreasonable for the Court to make a family provision order for a lump sum payment in favour of Cheryl that required each of Michael and Marie to bear, to the exclusion of the residuary beneficiaries, a payment of between $55,000 and $60,000 each. As a practical matter, the Court must bear in mind that Cheryl will be liable for the shortfall in the recovery of her actual costs of $13,400 payable to her lawyers.
I have decided that the appropriate result is to make orders that will lead to Cheryl receiving a lump sum of $50,000 (or close thereto, as the arithmetic of the amounts involved may permit) after the payment of all of her legal costs, including the part of her costs that she must pay herself.
A result close to that will be achieved if an order is made for payment to Cheryl of a lump sum legacy out of the deceased's estate of $65,000, together with her costs on the ordinary basis of $40,500. I will make that order on the basis that it is in lieu of Cheryl's existing entitlement to 1/20 of the residue.
An order should be made that Michael and Maria bear between them the net additional amount of the lump sum legacy, and Cheryl's costs on the ordinary basis.
I have not heard submissions from the defendants as to the proportion of the additional payment out of the estate that should be borne by each of the defendants. It may be that their counsel's silence, in response to Cheryl's counsel's submission that any additional payment in favour of Cheryl should be borne equally by the defendants, signifies their consent to that approach. However, I think that it is appropriate for the Court to allow the defendants time to consider the issue and to provide any additional submission that they may wish to make in writing.
I consider that, because of the significant difference between the financial positions of Michael and Marie, there is a reasonable case for making an order that the additional burden be borne in the ratio of 2 to 1 as between Michael and Marie.
As it appears that it may be necessary for the house in which Marie is living to be sold to give effect to the orders that will ultimately be made, I am concerned to hear what arrangements will be made for Marie's accommodation, even if that only concerns the timing of the sale of the property, in respect of the time that should be provided for in the orders as to when Cheryl should be paid her lump sum before interest begins to run.
The parties should consider these reasons, and the plaintiff should be responsible for providing draft short minutes of order to my Associate to give effect to them, having regard to the few issues that I have raised above that may require some further consideration, after appropriate discussions with the defendants.

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 July 2020

Ellem v Webber

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