Foley v Ellis

Appeal Outcome: Special leave dismissed with costs - 19 June 2009 (S522/2008)

JUDGMENT OF: Beazley JA at 1; Basten JA at 2; Sackville AJA at 16

2. The orders made by the Associate Justice dismissing the appellant's claim and in relation to the costs of the proceedings be set aside.

3. The bequests to Karl Konrad Foley and Patrick Walter Foley under the will of the Deceased dated 23 August 2002 remain unaltered and be paid without the deduction of any costs or expenses associated with the proceedings in this Court or in the Court below.

4. The bequests referred to in Order 3 be satisfied by the payment to each of Karl Konrad Foley and Patrick Walter Foley the following sums: (i) $184,000 (ii) a sum representing simple interest on the sum of $184,000 calculated at the rate of 6% per annum from 19 June 2005 until the date of payment. DECISION: 5. In lieu of the provision for the appellant in clause 5 of the will, the appellant be paid a legacy of $500,000.

6. Pursuant to s 13 of the Family Provision Act 1982 (NSW) the burden of payment of Order 5 shall be met out of all assets remaining in the estate after payment of the bequests referred to in Order 3 above, with the intent that the burden of the payment should be borne in equal shares by the beneficial entitlements of Peter James Ellis and Vivienne Joan Ellis.

7. The estate of the Deceased to pay the appellant's costs of the proceedings below, including the hearing before the Associate Justice and the costs of her appeal, on a party/party basis.

8. The respondents' costs to be paid out of the estate on an indemnity basis.

9. The estate of the Deceased is to have credit for any amount paid to the appellant on account of the provisions made in these orders.

CATCHWORDS: FAMILY PROVISION - Estate of about $2.8 million - beneficiaries are three children of the deceased and two grandchildren - appellant (one of the children) received one-ninth share of residue worth about $165,000 - strained relationship and lack of contact between appellant and the deceased - whether primary Judge erred in dismissing appellant's claim - re-exercise of discretionary power conferred by s 7 of the Family Provision Act 1982 (NSW).

Civil Procedure Act: s 56 LEGISLATION CITED: Industrial Relations Act 1996: s 191 Family Provision Act 1982: ss 6, 7, 9, 11, 13, 14 Supreme Court Act 1970: s 75A

Bosch v Perpetual Trustee Co Ltd [1938] AC 463 CDJ v VAJ [1998] HCA 67; 197 CLR 172 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 Costa v The Public Trustee of NSW [2008] NSWCA 223 Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR(NSW) 283 Foley v Ellis [2008] NSWSC 1277 Goodman v Windeyer [1980] HCA 31, (1980) 144 CLR 490 House v The King [1936] HCA 40; 55 CLR 499 CASES CITED: Mulcahy v Weldon [2002] NSWCA 206 Palmer v Dolman [2005] NSWCA 361 Shorey v PT Limited [2003] HCA 27; 77 ALJR 1104 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan [1931] HCA 34; 46 CLR 73 Vigolo v Bostin [2005] HCA 11; 221 CLR 191 Warren v Coombes [1979] HCA 9; 142 CLR 531 Western Australia v Ward [2002] HCA 28; 213 CLR 1 Wentworth v Wentworth, Estate of G. M. Wentworth (unreported 14 June 1991) Wheatley v Wheatley [2006] NSWCA 262

PARTIES: Jeanette Ann Foley (Appellant) Peter James Ellis (Defendant)

COUNSEL: Mr P Menadue (Appellant) Mr L Ellison SC (Defendant)

SOLICITORS: Kydon Segel Lawyers (Appellant) Bartier Perry (Defendant)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT JUDICIAL OFFICER: McLaughlin AsJ

LOWER COURT DATE OF DECISION: 12 November 2007

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 1277

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40829/07

BEAZLEY JA BASTEN JA SACKVILLE AJA

6 November 2008 Jeanette Ann FOLEY v Peter James ELLIS Judgment 1 BEAZLEY JA: I agree with Sackville AJA. 2 BASTEN JA: This appeal comes from a judgment of McLaughlin AsJ, dismissing an application under the Family Provision Act 1982 (NSW): see Foley v Ellis [2007] NSWSC 1277. I agree with the orders proposed by Sackville AJA and, subject to what follows, with his Honour's reasons.

Nature of jurisdiction 3 The power of the Court to order provision out of an estate, conferred by s 7 of the Family Provision Act, is subject to two conditions. The first, which is not in issue in the present case, is that the applicant be an "eligible person", within the definition in s 6(1). The second condition requires the satisfaction of the Court that such provision as the deceased made for the applicant was "inadequate for the proper maintenance, education and advancement in life" of the applicant: s 9(2). That state of satisfaction depends upon a multi-faceted evaluative judgment. The correctness of such a finding in a particular case is no doubt one about which reasonable minds may differ. Nevertheless, it is not a finding of a particular point within a range; it is a finding between alternatives and could arguably be reviewable pursuant to principles established in Warren v Coombes [1979] HCA 9; 142 CLR 531; Shorey v PT Limited [2003] HCA 27; 77 ALJR 1104 at [16] (Kirby J) and discussion in Costa v The Public Trustee of NSW [2008] NSWCA 223 at [41]-[51] (Ipp JA) and at [58]-[105]. 4 Upon satisfaction of the statutory conditions, an order may be made pursuant to s 7, either making no additional provision or allowing a figure deemed appropriate by the Court. The exercise of this power by the trial judge will be reviewable, but subject to the constraints on the review of the exercise of a discretionary power identified in House v The King [1936] HCA 40; 55 CLR 499. That will require identification of an error of principle affecting the outcome, even though the appeal is by way of a rehearing and is not limited to errors of law. 5 Contrary to the tentative analysis set out above, a review of a determination as to the adequacy of provision is also to be undertaken according to the more restrictive principles applicable to discretionary judgments: see Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 212 (Mason CJ, Deane and McHugh JJ); see further at [83] below. A reason for not distinguishing between the formation of the relevant satisfaction and the exercise of the discretionary power is that "the twin tasks which face the primary judge are similar, and … it would be artificial to say that the exercise of discretion begins only when the judge has completed the first of his tasks and decided that the appellant was left without adequate provision for proper maintenance": Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 502 (Gibbs J). 6 However, a question arises as to whether that approach may require qualification in the case of an appeal with respect to a state of satisfaction for the purposes of s 9(2), because the adequacy of provision must be assessed "at the time the court is determining whether or not to make such an order". In many cases the factual material available on appeal will be the same as that before the trial judge. In the present case, other evidence was tendered on the appeal suggesting that the applicant's circumstances had changed. As noted by Sackville AJA, there was a dispute as to whether the further evidence was admissible to justify appellate intervention on the basis of new facts, said to demonstrate the inadequacy of the provision made by the deceased in her will, if no error were demonstrated in the findings made by the trial judge on the material before him. 7 The appeal to this Court is by way of rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW). It is well-understood that an appeal by way of rehearing must be determined by reference to the law and facts as established at the time of the appeal: see Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73 at 108-110 (Dixon J); CDJ v VAJ [1998] HCA 67 and 76; 197 CLR 172 at [109]-[115] (McHugh, Gummow and Callinan JJ); Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [70]-[71]. The Court's jurisdiction in that respect has been described as "neither purely appellate nor purely original": CDJ at [111]; Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR(NSW) 283 at 283 (Jordan CJ, Davidson and Street JJ agreeing). It is clear from the discussion in CDJ that, whilst the appellate court has a discretion as to whether to admit further evidence, the fact that the evidence is likely to form the basis of a different result from that at trial is itself a factor favouring its admission, rather than its rejection. Prior demonstration of error by the trial judge is not a precondition to the admission of further evidence. Similarly, the appellate court must determine the appeal by reference to the law as it stands at the time of the appeal, whether or not the judgment of the trial judge was correct according to the law as it then stood: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [14]; Western Australia v Ward at [71]. There is a degree of tension between the statutory mandate that the Court conduct a rehearing and the general law principles of restraint in relation to the exercise of discretionary powers, the resolution of which will depend on the circumstances of the case. There is no explicit assistance to be derived from s 75A of the Supreme Court Act as to how the tension is to be resolved: cf Industrial Relations Act 1996 (NSW), s 191. 8 It is not clear whether the approach to the admission of further evidence should vary depending upon whether the evidence goes to the formation of an evaluative judgment or whether it goes to the proper exercise of a discretionary power. That question need not be decided in the present case because the new evidence proffered by the applicant was somewhat ambivalent. It appeared to demonstrate that the applicant's former husband had tendered an amount in settlement of the Family Court judgment which was less than the full amount owing, because he sought to set-off an amount payable to him by way of costs in respect of those proceedings. The evidence to which the Court was taken did not disclose whether any part of the applicant's debts of $107,000, arising from the Family Court proceedings, involved costs owing to her former husband. If they did, and if the set-off were properly available, the new evidence disclosed no material change in circumstances from those established at trial. I would place no weight upon the further evidence.

Error at trial 9 I agree with Sackville AJA that the trial judge erred in his assessment of the applicant's earning capacity. His Honour is also of the view that the trial judge erred in treating the respective claims of the applicant and her siblings as irrelevant to an assessment of the adequacy of the provision made for her by her mother. I agree with his Honour's statement of principle; whether the trial judge intended to depart from those principles is, however, less clear. The quantum of the applicant's claim suggests that it was designed to achieve a degree of financial equality with her siblings. That would not be a proper basis for determining the adequacy of provision. It may have been that, in making the impugned remarks, the trial judge intended to reject that approach, rather than deny relevance to the relationship of the deceased with the applicant's siblings, or the social or moral context more generally. 10 There were other potential errors. One was that the trial judge assessed the adequacy of the bequest against the position the applicant would have been in had she not instituted proceedings under the Family Provision Act: at [93]. To exclude from consideration the diminution in the estate and hence her expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant's position at the time the Court "is determining whether or not to make such an order". 11 Further, I am inclined to think that the different treatment of the offensive letters, adopted by Sackville AJA in his reassessment of the adequacy of provision, also demonstrates relevant error on the part of the trial judge. 12 Because no reliance is placed on the further evidence tendered on the appeal, there is no basis for the respondent's contention that if error were disclosed, the matter should be remitted for further hearing. Indeed, that proposal was in any event inapt. The fact that the Court admits further evidence is not a sufficient basis to permit remittal for the purpose of cross-examination. If further cross-examination had been appropriate, the admission of the evidence should have been made conditional upon that course being allowed. The appeal being by way of rehearing, it is usually appropriate for this Court to dispose of proceedings by way of final orders, in accordance with the mandate of s 56 of the Civil Procedure Act 2005 (NSW) and s 75A of the Supreme Court Act. The need and likely extent of cross-examination is a factor relevant to the Court's decision to admit further evidence, but the admission of such evidence does not necessarily justify a remittal for further hearing in the trial court.

Proper provision 13 The appropriate order is one sufficient to give effect to the statutory purpose. The circumstances of the applicant's siblings are relevant to the level of provision which ought to be made, both because they tend to place the applicant's expectations in her family environment, but also because it is their expectations which will be diminished by the order of the Court. 14 It is also relevant that the applicant gained no assistance from the matters set out in s 9(3)(a), relating to contributions to the deceased's welfare or estate. Nor is the rupture in the familial ties between the applicant and her mother, as reflected in the quite limited provision made for the applicant in her will, to be ignored. These factors militate against an order erring on the side of generosity in assessing the applicant's needs for maintenance and advancement in life. 15 The provision proposed by Sackville AJA is appropriate and the burden of that provision should be borne in equal shares by the beneficial entitlements of the applicant's siblings, Peter James Ellis and Vivienne Joan Ellis. 16 SACKVILLE AJA: This is an appeal against a judgment of an Associate Justice of this Court, delivered on 12 November 2007 dismissing an application by the appellant for an order for her provision out of the estate of her late mother, Suzanna Maria Ellis ("the Deceased"). The appellant filed a summons seeking an order under the Family Provision Act 1982 (NSW) ("Family Provision Act") on 8 July 2005: see Foley v Ellis [2008] NSWSC 1277. The defendants named in the summons (the respondents to the appeal) are the executors of the estate of the Deceased. THE PROCEEDINGS 17 The Deceased died on 19 June 2004, aged 84. She was a widow, her husband, William Ellis, having died in June 1995, aged 78. The deceased was survived by her three children, Peter (born on 2 November 1950), Jeanette (the appellant, born on 13 September 1952) and Vivienne (born on 27 August 1954). (Like the primary Judge, I refer to the appellant's siblings and to her former husband by their first names. I do this for convenience and without intending any disrespect.) 18 Probate of the Deceased's will, which was made on 23 August 2002, was granted to the defendants on 24 March 2005. Under the terms of the will, which are referred to later, the beneficiaries are the three children of the Deceased and the Deceased's two grandchildren. Peter and Vivienne, however, received larger shares of the estate than did the appellant. 19 The appellant was estranged from the Deceased for some years prior to the latter's death. The appellant has also been estranged from her two siblings for some years. 20 The appellant has two children from her marriage to her former husband, Tad Foley. The appellant and Tad met in the United States in 1987. The appellant became pregnant to Tad in 1988 and gave birth to her older son, Karl, on 19 December 1988. She and Tad were married in Australia in February 1990 and their second child, Patrick, was born on 26 February 1992. 21 The appellant and Tad were divorced in 1999 and have been parties to bitter and protracted litigation ever since. As a consequence of the family conflict and of court orders, the appellant has had no contact with her sons for some years. 22 Karl and Patrick each receive a share of the Deceased's estate equal to that of the appellant (their mother). The appellant's counsel has made it clear that, although the appellant seeks an order for her maintenance or advancement in life pursuant to s 7 of the Family Provision Act, she does not seek to disturb the testamentary gifts made to her two children. 23 At the time of the hearing below, which took place on 21 and 22 June 2007, the Deceased's estate had a value of approximately $2,785,144. The estate had two categories of assets (ignoring interim distributions): 1. shares in an unlisted company, Ellis Holdings Pty Ltd (" Ellis Holdings "), having an estimated value of $1,135,443; and 2. cash in the amount of $1,649,701. 24 The appellant gave evidence before the primary Judge that her needs included: * paying off her outstanding liabilities of $129,000; * the purchase of a three bedroom house in the lower north shore of Sydney, at an estimated cost of about $800,000; * a new motor vehicle ($40,000}; * replacement of household appliances ($42,500); * a fund for future contingencies ($30,000); and * a fund sufficient to provide an income to cover weekly expenses. She sought orders providing her with a total of $1,692,740 from the Deceased's estate. 25 The appellant contends on the appeal that the primary Judge erred in dismissing her claim. She asks the Court to set aside the orders made by his Honour and invites the Court to make an order in her favour. The appellant submits that as her needs have not changed, she should receive an order for provision out of the estate of $1,692,740 (of which the interim distribution of $80,000 already paid to her would form part). However, her counsel recognised that the Court might well think it appropriate, if the appeal is allowed, to order payment of a lesser sum. The orders suggested on behalf of the appellant preserve the bequests to the grandsons of the Deceased and protect them against the costs of the Family Provision Act proceedings. In consequence the proposed orders impose the burden of the additional provision for the appellant wholly on the testamentary gifts to Peter and Vivienne.

FAMILY PROVISION ACT 26 Section 7 of the Family Provision Act provides as follows: 'Subject to section 9, on an application in relation to a deceased person in respect of whom administration has been granted … if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate … of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.' There is no dispute that the appellant is an "eligible person" within par (b) of the definition in s 6(1). 27 Section 9 of the Family Provision Act relevantly provides as follows: "(2) The Court shall not make an order under section 7 … in favour of an eligible person out of the estate … of a deceased person unless it is satisfied that: (a) the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate, or

is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.

(3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate … of a deceased person, the court may take into consideration: (a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to: (i) the acquisition, conservation or improvement of property of the deceased person, or

(ii) the welfare of the deceased person, including a contribution as a homemaker, (b) the character and conduct of the eligible person before and after the death of the deceased person, (c) circumstances existing before and after the death of the deceased person, and (d) any other matter which it considers relevant in the circumstances." 28 An order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum or "in any other manner which the Court thinks fit": s 11. The Court, if it makes an order for provision, "may specify the beneficial entitlements in [the] estate which shall bear the burden of the provision and, in relation to each entitlement, the part of the burden it is to bear" s 13. An order for provision takes effect, unless the Court orders otherwise, as if the provision had been made in the deceased's will: s 14(1).

Terms of the Will 29 The Deceased's will provided that Peter and Vivienne were to receive, between them, all the B class shares in Ellis Holdings, these being the only shares having a substantial value. The residue of the estate, after payment of debts and discharged liabilities, was to be divided into three equal shares. Peter and Vivienne were each to receive one of the three shares. 30 The third share of residue was itself to be divided into three parts. One part (one ninth of the residue) was left to the appellant. The remaining two parts (i.e. two ninths of the residue) were left to such of the appellant's children, Karl and Patrick, as survived the Deceased and attained 21 and, if more than one, equally. In the event of the death of both children before the age of 21, their interests were to go to such of the appellant and Tad, her former husband, as were then living and, if both were living, equally.

Appellant's Entitlement Under the Will 31 On 16 May 2007, the executors made an interim distribution on account of the entitlements of the three children of the Deceased. Peter and Vivienne each received $240,000, while the appellant received $80,000. In consequence, the moneys held by the estate at the date of the trial were in the order of $1,089,700. 32 The primary Judge recorded that the appellant's representative had estimated that she had incurred legal costs of approximately $85,000. The respondents' representatives had estimated their total costs at $78,150. His Honour proceeded on the basis that, if the appellant succeeded in her claim, her costs would be paid out of the estate (he did not distinguish between costs on a party and party and solicitor and client basis), while the respondents' costs would be paid out of the estate in any event. On this basis, his Honour considered that the value of the estate available for distribution would be reduced by about $163,150. 33 The primary Judge calculated the value of the appellant's entitlement under the will at $165,820. He reached this figure by starting with the balance in the estate's bank account, before the interim distribution, of $1,655,530. He deducted from this amount the estimated costs of $163,150, to give an amount available for distribution of $1,492,380. One-ninth of $1,492,380 is $165,820. 34 The respondents' counsel had used different calculations and had arrived at a figure of $121,000 as the value of the appellant's entitlement under the will. In response to this calculation, his Honour merely observed that the appellant's entitlement was no less than $121,000, but could be as much as $165,000. It followed that after allowing for the interim distribution in the appellant's favour of $80,000, she could expect a distribution of at least another $41,000, but she might receive as much as an additional $85,000 from the estate.

APPELLANT'S BACKGROUND AND CIRCUMSTANCES 35 The appellant grew up in the family home at Mosman. She was educated at a private school and subsequently obtained tertiary qualifications, including a diploma in teaching in 1974, a Bachelor of Arts in Economics in 1978 and a Master's degree in Educational Studies in 2001. 36 The appellant left home in 1974 to study and to take up a teaching position near Port Kembla. Upon returning to Sydney in 1975, she purchased a home unit. She studied for her undergraduate degree whilst working full time during most of the course. The appellant worked in the commercial sector in various positions in the late 1970s and early 1980s. 37 Until a particular incident in 1984, it appears that the appellant and the deceased enjoyed a close and affectionate relationship. However, an incident in that year led to some deterioration of the relationship between the appellant and her mother and to a more serious disruption of her relationship with her siblings. On the appellant's account, Peter and Vivienne had asserted that she was suffering from psychiatric problems and had attempted physically to restrain her. 38 At about that time, the appellant wrote what was referred to on the appeal as the "Dachau" note. In this undated note, which was not addressed to any specific person, the appellant made references to Hitler and Dachau in complaining about the conduct of her family. On her evidence, the Dachau note was never sent to the Deceased. Nonetheless, it was common ground at the trial that the Deceased, one way or another, had read the note. 39 In 1987, the appellant travelled to the United States, where she met Tad. Although they were ultimately married in Australia, from 1989 to 1995 the appellant and Tad lived in the United States. During this period the appellant maintained regular contact with her parents by telephone and fax. The appellant, Tad and the children visited Sydney each year, at first staying with her parents and then in hotel accommodation paid for by the appellant's parents. The appellant's parents also visited the family in the United States each year. 40 In March 1995, the appellant and her family returned to Australia to reside permanently in Sydney. At this time, the appellant's father was suffering from a terminal illness and died in June 1995. He left a legacy of $30,000 to each of his three children and the residue of his estate to the Deceased. 41 In August or September 1995, Tad, for reasons connected with his employment, moved into the Deceased's residence. Soon after, matrimonial problems arose between the appellant and Tad and she moved to Queensland with her two children. She then instituted proceedings against Tad in the Family Court, although they were not finally divorced until 1999. It appears that the appellant and the children returned to Sydney in early 1997. 42 As the primary Judge found, the Family Court proceedings were "extremely protracted and highly acrimonious". A nine-day hearing took place in the Family Court during April and June 2001. The Family Court Judge, Cohen J, delivered judgment in March 2002. 43 The Deceased swore an affidavit in the Family Court proceedings on Tad's behalf. In her affidavit, the Deceased stated that she wished to have an ongoing relationship with her grandchildren, but did not wish to further exacerbate family difficulties by going into the details of her estrangement from the appellant. Nonetheless, the Deceased complained that she never saw her grandchildren when they were with the appellant and stated it was only through Tad's efforts that she saw them at all. She said that Tad was like a son to her. 44 Cohen J was critical in his judgment of aspects of the appellant's behaviour and of her attitude to her family. By contrast, his Honour commented on Tad's "unselfish" desire to promote the best interests of the children. Cohen J awarded custody of the children to Tad, but provided for the appellant to have access at specified times. 45 In relation to financial matters, Cohen J found that the parties' assets totalled $793,852. Of this sum, he considered that the appellant should receive $52.5 per cent, or $416,772. Since the appellant's net assets totalled $534,944, she was required to pay Tad $118,172 in order to bring about the appropriate adjustment. 46 Thereafter the litigation continued. The appellant appealed to the Full Court of the Family Court against Cohen J's orders, but the appeal was ultimately dismissed on 31 October 2003. Various enforcement and stay applications were then filed and dealt with. Tad sought variations to the custody and access orders made by Cohen J. 47 A second Family Court Judge, Lawrie J, dealt with a number of outstanding matters in a judgment delivered on 2 March 2007. Her Honour described the litigation as "ruinous for the parties". It had exacerbated the hostility not only between the appellant and Tad, but also between the appellant and others who had become involved in some way in the litigation. Lawrie J considered that the litigation had been "particularly cruel to the appellant, who had lost ongoing contact with her children, whom she loved, and had been financially devastated". The children of the marriage were in a "hellish position". The Judge was considerably more critical of Tad than Cohen J had been. Her Honour was also critical of others who had been involved in the unhappy saga, including various legal representatives. 48 Despite all these matters, Lawrie J made orders terminating the appellant's rights of access to her children. Her Honour considered that any other solution would prolong the "dreadful situation" of the children, given that both parents were "too embittered … to forgive" and "too scarred to forget". Her Honour acknowledged that an outcome in the best interests of the children might be unfair to one of the parents, in this case the appellant. However, she considered that any program of contact between the appellant and the children, while the children were living with their father, was "doomed". 49 Lawrie J also dealt with a dispute arising from an earlier enforcement application by Tad. Her Honour ordered that Tad refund $153,061 already paid by the appellant to him. 50 It is not surprising that in the present proceedings the appellant estimated that she had incurred costs of about $500,000 in the Family Court proceedings, including her own legal expenses and costs awarded against her. The primary Judge in these proceedings found that in order to meet the costs of the Family Court litigation the appellant had been forced to sell her home. She had received net proceeds of a mere $4,000 from the sale.

APPELLANT'S POSITION 51 The primary Judge made findings concerning the appellant's health, capacity for work and financial position at the date of the hearing. His Honour's findings included the following: * The appellant had sustained whiplash injuries as the result of car accidents in June 2004 and July 2005. Her spinal injuries had been exacerbated in a further work-related accident in October 2005. * In consequence of these injuries, the appellant had been off work for three months from mid-November 2005, having been diagnosed at the time as suffering from post-traumatic stress disorder. * The appellant had commenced work as a teacher's aide in February 2006, at first working two days per week for three hours per day. She had later increased her working hours to four half days per week, for which she was paid $153.57 per half-day. * As a result of the appellant's medical conditions, in particular her inability to be upright for more than half a day without considerable pain, she was granted a health card mobility allowance of $52.00 per week in February 2007. * On 24 May 2007, the appellant was granted a disability pension in a total amount of $81.11 per week (consisting of an income supplement of $26.21, rental assistance of $52.00 and a health credit of $2.90). * The appellant's weekly income at the trial was made up of the following amounts (subject to variations depending upon the precise hours worked): Salary from teaching work $614.30 Disability allowance $ 81.11 Mobility allowance $ 52.00 TOTAL $747.41

• The appellant's outgoings totalled $1268.00 per week, including $380.00 rent.
  • Independently of any entitlement from the estate, the appellant had few assets. Household items, a modest car and the like had a value of some $9,000, while the appellant had a superannuation entitlement of $23,000. Against this, she had liabilities of $129,000 including about $107,000 in unpaid debts arising out of the Family Court proceedings.
  • The appellant also had the benefit of the order made by the Family Court on 2 March 2007, requiring Tad to repay her $153,061. His Honour noted that at the date of the hearing Tad had failed to comply with that order. 52 On the appeal, the appellant tendered correspondence showing that Tad had paid $96,908 to the appellant. This represented the sum of $153,061, the subject of the Family Court order of 2 March 2007, less what Tad claimed to be outstanding costs orders in his favour, inclusive of interest, totalling $59,446. The respondents did not object to the tender of this correspondence, although there was a dispute as to the precise use that could be made of the material on the appeal. It should be noted that the primary Judge made no reference to any liability of the appellant to meet costs orders in Tad's favour, presumably because no evidence of any such liability was adduced at the hearing. The unpaid debts of $107,000 related to other matters. 53 The primary Judge, who did not have the benefit of the fresh evidence, assessed the appellant's assets as follows: (i) entitlement to reimbursement from Tad - $153,000; (ii) entitlement from the estate of the Deceased - between $121,000 and $165,000, or $184,000 if the appellant had not instituted proceedings under the Family Provision Act ; (iii) liabilities - $129,000. The result, according to the primary Judge, was that the appellant would have had over $200,000 in assets had she chosen not to institute the Family Provision Act proceedings.

POSITION OF THE SIBLINGS 54 Peter was aged 56 at the date of the trial and in good health. He was unmarried and had no children. He was in full-time employment as an engineer in his own company, which engaged in business as an industrial engineering and management consultancy company. Peter received an annual salary and director's fees amounting to $142,000 per annum. 55 Peter's principal assets were a house worth about $1.8 million and shares in Ellis Holdings worth about $580,000. His shares in his own company were valued at only $2. His total assets were about $2.5 million including superannuation entitlements, while his liabilities were about $150,000. Peter's monthly expenses were about $5,500. In addition, he paid some expenses for his nephews, Karl and Patrick. 56 Under the will, Peter received shares in Ellis Holdings worth about $567,000 and a share of the residual estate. If legal costs and the interim distribution are ignored, his share of the residual estate was worth about $550,000 at the trial. Thus Peter was to receive assets worth $1,117,000 from the Deceased's estate. 57 Peter gave evidence that his house required renovations and repairs that would cost about $100,000. He also wished to make substantial contributions to his superannuation fund. 58 Vivienne was aged 52 at the date of the trial and in good health. She had undertaken tertiary studies and had a Bachelor of Arts (Economics) degree. She was not married and had no dependants. Vivienne had been employed as an office manager in the family business since 1991, but had retired when the business was sold. His Honour found that Vivienne had ceased full-time employment in December 2004. 59 Vivienne's assets totalled about $1.3 million, including her residence (valued at $580,000) and superannuation. Her income consisted of director's fees of $10,000 per annum from Ellis Holdings and interest of about $4,000 per annum from investments. Her expenses were modest, amounting only to some $10,300 per annum. However, Vivienne gave evidence that refurbishment of her home unit and levies to the body corporate would come to $70,000. In addition, she was contemplating setting up a business which would require capital of about $50,000 and wished to make contributions to her superannuation. Vivienne's share of the estate, like Peter's, was valued at about $1,117,000.

THE PRIMARY JUDGMENT 60 The primary Judge found that the appellant was an "eligible person" within para (b) of the definition in s 6(1) of the Family Provision Act. His Honour noted that the only other eligible persons in relation to the Deceased were Peter and Vivienne. 61 The primary Judge recorded that the respondents had not submitted that the appellant had been guilty of what was once known as "conduct disentitling". Nonetheless, they had submitted that the relationship between the appellant and the Deceased was relevant to the appellant's Family Provision Act claim. Among other things, the respondents relied on the Dachau note and a letter written in December 1997. 62 The primary Judge dealt with this submission as follows: There were admitted into evidence, various letters addressed by the [appellant] to the Deceased. The language used by the [appellant] in those letters does not indicate a deep loving relationship between herself and her mother, at least at the time when the letters were written. The language of those documents, together with [a letter written on 3 December 1997] is grossly offensive. It is difficult to envisage a more hurtful or more insulting statement to a person of the Jewish faith (as was the Deceased, and also her husband) than to compare them with Adolph Hitler and to liken their family home to Dachau (the site of a concentration camp in which the [appellant's] own grandparents had been incarcerated). By some means or other copies of those documents came into the possession of the Deceased. From them she would have been entitled to draw adverse conclusions about her daughter's bona fides and motives." 63 The letter of 3 December 1997, to which the primary Judge referred in the extract above appears to have been a letter intended for distribution to friends and family just prior to Christmas. The letter contained references to the litigation with Tad and included the following passage: Through this my mother, brother and sister have proved beyond any doubt that they do not care for or have my childrens' interests at heart nor do they have a tender feeling for me. The best I can say for them is that they are bent on the destruction of myself and my children. So to add to the pressures of this year I must end it with grieving the loss of these three permanently." 64 The primary Judge then referred to the Family Court proceedings between the appellant and Tad without making any finding other than that, as a consequence of the Deceased's willingness to provide an affidavit, the relationship between the Deceased and the appellant "throughout the last years of the Deceased's life … was non-existent". Nevertheless, so his Honour found, the Deceased had by no means overlooked the appellant's claims, since she had been left a legacy that would have been worth about $184,000 had she not instituted proceedings under the Family Provision Act. 65 His Honour noted that an order under the Family Provision Act is not to be withheld as punishment for bad conduct. He continued as follows: The [appellant] cannot establish her claim by relying on the fact (if such be the fact) that neither Peter nor Vivienne is in comparable financial circumstances to those of the [appellant]. They are the chief chosen objects of the testamentary beneficence of the Deceased. There is no need for them to prove anything. The [appellant] must establish her claim upon its own merits. The competing claims of Peter and Vivienne may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the [appellant] might otherwise have established. However, those competing claims cannot have the effect of enhancing the claim of the [appellant]." 66 The primary Judge noted that the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 had identified a two-stage process for claims under the Family Provision Act. The first stage required the Court to determine whether, in consequence of the provisions of the Deceased's will, the appellant had been left without adequate provision for her proper maintenance. The second stage, which arose only if the appellant succeeded at the first stage, required the Court to determine what provision should be made for the appellant's out of the estate of the Deceased. 67 His Honour noted, but did not comment upon, the respondents' submission that the Deceased's estate should not bear the burden of the appellant's Family Court litigation, which the Deceased had not supported. His Honour found that the appellant was entitled to recover some $150,000 from Tad and thus, even after payment of her liabilities, she would have had over $200,000 in assets had she not instituted the Family Provision Act proceedings. He added that: "[h]ad she wanted to purchase a residence, that amount would have gone a considerable distance towards the purchase price. There appears to be [no] reason why the [appellant] should [not] increase her earnings, by for example, working in a full-time capacity, rather than working part-time; or by performing some tutoring work (for which she is professionally well qualified)." 68 His Honour expressed his conclusion in relation to the first stage of the process identified in Singer v Berghouse as follows: I am not satisfied that the [appellant], who by the will of her mother is entitled to receive at least about $121,000 (possibly about $165,000, or, if she had not instituted the present proceedings, about $184,000), has been left without adequate provision for her proper maintenance." 69 While that was said to be sufficient to dispose of the appellant's claim, the primary Judge observed that her claim had to be approached in the light of the competing claims" of Peter and Vivienne. If the appellant were to receive any additional provision the question arose as to the source of that provision. Unless it came out of the shares of Peter and Vivienne, it would have to come out of the bequest to the appellant's children. Since the appellant did not have custody of the children, his Honour indicated that he would not be disposed to make any order the practical effect of which would be to reduce the benefits given to each of the children. Nor would he be disposed to make an order for provision which would significantly reduce the benefits given to each of Peter and Vivienne. 70 The primary Judge went on to say that, even if he were satisfied that the appellant had otherwise established an entitlement to additional provision out of the estate of the Deceased, she would certainly not be entitled, at the expense of the estate, to acquire a house property as she had sought. Most of her other asserted needs, where quantified, could be acquired from the benefits given to her by the will. 71 Finally, his Honour noted that even if he had concluded that the appellant had been left without adequate provision by the Deceased's will, the competing claims of her two siblings were such that he would not have been disposed to make any order which would have reduced the provision made by the Deceased's will for them. Thus there would have been no fund from which any order in favour of the appellant could properly have been made. In his Honour's view: "[t]o a considerable extent the difficult financial situation in which the [appellant] now finds herself is largely due to the institution by her of the present proceedings." 72 For these reasons, the primary Judge dismissed the application.

Appellant 73 The appellant submitted that, having regard to the primary Judge's findings concerning the value of the estate and the respective resources and needs of the appellant, Peter and Vivienne, his Honour's conclusion that the appellant had not been left without adequate provision for her proper maintenance and advancement in life was in error. According to Mr Menadue, who appeared on behalf of the appellant, error could be discerned even without the necessity to identify any error of principle or mistake of fact. 74 In any event, the primary Judge had made errors in applying the first limb of Singer v Berghouse. In particular, his Honour: o had considered the appellant's "needs" in isolation from the other circumstances of the case, including the size of the estate and the resources and needs of Peter and Vivienne; o should not have assigned full value to the debt due to the appellant by Tad; o erred in finding that there was no reason why the appellant could not work full-time; o had failed to take into account the appellant's needs, including her reasonable expectations as to how she might live; o gave undue weight to the appellant's intemperate language in the 1984 and 1997 documents; and o apparently gave undue weight to the respondents' submission that the estate should not fund the appellant's Family Court litigation. 75 On the basis that error had been established, Mr Menadue invited the Court to determine the appropriate provision that should be made for the appellant out of the Deceased's estate. He accepted that the appellant should be regarded as having no dependants. Nonetheless, Mr Menadue submitted that the Court should make provision for $1,692,740, being an amount sufficient to meet the needs identified by the appellant in her evidence. He submitted draft orders to the Court which gave effect to his submissions on the appellant's behalf and took into account the appellant's desire not to disturb the testamentary gifts to the Deceased's grandsons.

Respondents 76 The respondents filed lengthy written submissions. They emphasised the High Court's holding in Singer v Berghouse that the principles governing appellate review of discretionary considerations apply to the so-called jurisdictional question in Family Provision Act claims. Accordingly, the primary Judge's decision could only be overturned if he had made an error of principle, a significant mistake of fact which affected the decision or reached a decision so unreasonable that it indicated error. 77 The respondents contended that there was no basis for interfering with the primary Judge's discretionary decision. They accepted that it was necessary for the primary Judge, in considering the appellant's claims, to take into account the needs of Peter and Vivienne, but argued that the competing claims of the two siblings were "relevant at the second stage [of the test mandated by Singer v Berghouse] more so than the first". In any event, his Honour had taken into account the needs of the siblings since he had referred to them in his judgment. 78 The respondents accepted that it had never been put to the appellant that she was capable of working full time. However, they submitted that the medical evidence on which she had relied at the hearing was out of date and that the primary Judge was entitled to take into account that she had increased her hours of work since returning as a teacher in February 2006. On that basis, his Honour's finding of fact was justified. 79 The respondents submitted that none of the other matters identified by the appellant warranted setting aside the primary Judge's discretionary decision. 80 On the assumption that the Court (contrary to the respondents' submissions) were to hold that the primary Judge erred in rejecting the appellant's claim, the respondents submitted that the Court should "consider" remitting the matter for a new hearing. Mr Ellison SC, who appeared for the respondents, argued that the respondents should have the right to cross-examine the appellant on her relationship with the Deceased and that this right should not be lost by this Court exercising the discretion conferred by the Family Provision Act. 81 Mr Ellison submitted that if the Court was minded to make a final order, any provision in favour of the appellant should "be a modest amount … to reflect the absence of a relationship and [the appellant's] lack of involvement in the family company." Mr Ellison also indicated that he had instructions from the executors that if any additional provision was to be made for the appellant, the orders should not disturb the bequests to the Deceased's grandsons.

REASONING 82 It was common ground that the primary Judge correctly understood that he was required to follow the two-stage process identified by the High Court in Singer v Berghouse. The joint judgment in that case described the task of the Court under the Family Provision Act as follows (at 208-209): "The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the 'jurisdictional question'. That description means no more than that the court's power to make an order in favour of the applicant under s.7 is conditioned upon the court being satisfied of the state of affairs predicated in s.9(2)(a)." (Citations omitted) This approach was followed in Vigolo v Bostin [2005] HCA 11, 221 CLR 191 at [5] (197) per Gleeson CJ; at [56] (212-213) per Gummow and Hayne JJ; at [112] (227) per Callinan and Heydon JJ. 83 It was also common ground on the appeal that the primary Judge's decision on the jurisdictional question was to be regarded as involving the exercise of a discretionary judgment. This follows from the holding in Singer v Berghouse at 212, that the principles governing appellate review of discretionary decisions apply to a decision on the jurisdictional question under the Family Provision Act. The decision can therefore be overturned only if: "there has been some error of law or mistake of fact, or if some other error appears in the judgment, such as taking into account irrelevant considerations or disregarding relevant considerations, or alternatively if the result of the decision is unreasonable in such a way as to indicate some other latent error in the judgment." Mulcahy v Weldon [2002] NSWCA 206 at [24] per Hodgson JA (with whom Handley JA and Campbell AJA agreed). 84 Section 9(2) of the Family Provision Act requires the Court to determine whether "at the time the Court is determining whether or not to make a [s 7] order" the provisions made by the will in favour of the eligible person is inadequate for that person's proper maintenance and advancement in life. Under the previous law, the determination was to be made at the date of death of the testator or testatrix: Goodman v Windeyer [1980] HCA 31, 144 CLR 490 at 499 per Gibbs J.

The primary Judge erred 85 It is convenient to commence with the appellant's submission that the primary judge failed to take into account the resources available to, and the needs of, Peter and Vivienne in determining that the appellant had not established that she had been left without adequate provision by the Deceased's will. 86 The statutory formula governing the first stage of the process required by the Family Provision Act requires the court to be satisfied that the provision made in favour of the eligible person out of the deceased's estate is "inadequate for the proper maintenance …and advancement in life of the eligible person". As Gleeson CJ pointed out in Vigolo v Bostin at [5]-[6] (197), this formula requires the court to make judgments by reference to criteria expressed in the most general terms. In particular, the word "proper" incorporates "value-laden concepts" that must "have a source external to the decision-maker". Much the same point can be made about the word "inadequate". Gleeson CJ's views on the "moral obligation" of a testator were not shared by all other members of the Court in Vigolo v Bostin, but that does not effect the cogency of his Honour's comments. To the same effect are the observations of Gibbs J (with whom Stephen and Mason JJ agreed) in Goodman v Windeyer [1980] HCA 31, 144 CLR 490 at 502, cited in Singer v Berghouse at [22] (211) per Mason CJ, Deane and McHugh JJ. 87 It is for this reason that the joint judgment in Singer v Berghouse held at [15] that the determination of the first stage of the process: "calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty ." (Emphasis added.) 88 This language strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act. 89 The point was made explicitly by Callinan and Heydon JJ in Vigolo v Bostin at [122] (231): "Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances … The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors ." (Emphasis added.) Similarly, in Palmer v Dolman [2005] NSWCA 361, Ipp JA held (at [115]) that the circumstances to be taken into account in that case included the fact that none of the beneficiaries nominated in the deceased's will (other than the applicant and one other beneficiary) "had any claim on [the testator's] bounty or demonstrated need". 90 In the present case, the learned primary Judge referred to the financial and personal circumstances of Peter and Vivienne and carefully calculated their entitlements under the will of the Deceased. Nonetheless, his Honour made it clear that the appellant had to "establish her claim upon its own merits". He specifically said that, while the competing claims of Peter and Vivienne might have reduced any entitlement the appellant otherwise could have established, "those competing claims cannot have the effect of enhancing [her] claim". That observation is not consistent with the statutory requirement that the competing claims of all potential beneficiaries must be taken into account in determining whether the application has been left without adequate provision for her proper maintenance and advancement in life. 91 This conclusion is enough to establish an error in the reasoning of the primary Judge that vitiates the exercise of his Honour's discretionary judgment on the jurisdictional question. However, reference should be made to a second significant error in his Honour's judgment. The error is relevant to the judgment required at both stages of the process. 92 The findings made by his Honour concerning the health and work history of the appellant demonstrated that there were very serious and, quite likely, insuperable impediments to her working full time. In addition, there was uncontradicted evidence from a rheumatologist, Professor Sambrook, to the effect that the appellant had chronic symptoms following her whiplash injuries that were "likely to interfere with … her fitness for ongoing employment as a teacher" and that "she is best suited for part time work". The criticism made by the respondents that Professor Sambrook's opinion was somewhat dated does not undercut the force of his assessment, particularly when it is combined with the appellant's evidence of her own limited capacity for work and the findings made by his Honour as to her work history. 93 It is difficult to understand how, in the light of his findings and other uncontradicted evidence, his Honour could have concluded that there was no reason why the appellant could not increase her earnings by working full time. Nor was there an evidentiary basis for his conclusion that she would be able to earn substantially more as a private tutor. When pressed in cross-examination, the appellant accepted that she might be able to tutor for a short period in the afternoon or evening if she gave up her regular teaching position and slept for much of the day. However, there was no evidence that would support a finding that the appellant could earn more as a tutor than as a teacher. The factual findings made by the primary judge on these matters were therefore contrary to the evidence and, independently of any other error, vitiated the exercise of his Honour's discretionary judgment on the jurisdictional question.

Fresh consideration of the two questions 94 As has been noted, the respondents submitted that if the Court found that the primary Judge had erred, it should give consideration to remitting the matter for a further hearing. In my view, there would be little benefit in such a course. The primary Judge made detailed findings of fact, including findings relating to the estrangement between the appellant and the Deceased. These findings, together with the evidence not seriously in dispute, enables this Court to make a determination both of the jurisdictional question and of the quantum of any provision that should be made for the appellant. Remitting the matter would involve the parties in unwarranted delay and additional expense that would significantly diminish the assets available for distribution. It is therefore appropriate for the Court to consider the questions afresh.

95 The primary Judge's findings show that the appellant's financial position at the date of the hearing was parlous. Her expenditure of $1,268 per week exceeded her income by approximately $500 per week. Her net assets, giving the debt from Tad its full value, totalled about $200,000 (on the assumption that she had not instituted proceedings under the Family Provision Act). If allowance was made for the costs of the current proceedings, her net assets were substantially less than $200,000. 96 Given the appellant's state of health, her limited capacity for remunerative work and her need for rental accommodation she faces the realistic prospect that she will have insufficient resources to enable her to maintain her current standard of living, quite independently of any further expenses she may (or may not) choose to incur in the Family Court litigation. Certainly, she lacks the resources to purchase her own accommodation, even of a modest character. Indeed, her assets provide only a small buffer against the risk that her state of health will not permit her to continue in the workforce on a part-time basis. 97 The appellant's financial position becomes even more parlous when account is taken of the evidence admitted on the appeal. This shows that Tad has not paid the sum of $153,000 found by the primary Judge to be due to the appellant. Instead, Tad has paid approximately $97,000, claiming that he is entitled to set off unsatisfied costs orders made by the Family Court in his favour. While it is perhaps possible that the appellant could recover further moneys from Tad, the probabilities on the material before this Court are that she will not. If that is correct, her net assets, after allowing for the costs of the Family Provision Act proceedings and allowing for her entitlement under the will, are no more than about $130,000. 98 When the appellant's financial position is compared with that of her siblings, the contrast is stark. Peter is now aged nearly 57. He has net assets of at least $2.35 million, is in good health, is employed by his own company, earns over $140,000 per annum and has modest regular expenses. His entitlement as a beneficiary of the estate, after allowing for the costs of the Family Provision Act proceedings, exceeds $1 million. 99 There was some debate in the written submissions as to whether Vivienne had understated her assets when giving evidence in these proceedings. However, the primary Judge made no finding adverse to her on this issue and no grounds have been shown for setting aside his Honour's findings as to her personal circumstances. On this basis, Vivienne has net assets of at least $1.3 million and is in good health. Although her income is at present very modest, so too are her expenses. She has prospects of increasing her income by setting up a small business for which she will require capital of some $50,000. Like Peter, her share of the estate, after allowing for the costs of the Family Provision Act proceedings, exceeds $1 million. 100 The contrast between the appellant's parlous circumstances and the relatively secure position of Peter and Vivienne (although Peter's net assets are substantially greater than those of Vivienne) strongly suggests that the provision made by the Deceased for the appellant was not adequate for her proper maintenance and advancement in life. In substance, the only grounds relied on by the respondents for reaching a contrary conclusion on the jurisdictional question were the estrangement between the Deceased and the appellant and the appellant's conduct in writing the Dachau letter and the 1997 letter. 101 The more recent authorities have held that a state of estrangement or even hostility between a testator or testatrix and a claimant does not terminate the obligation of the testator or the testatrix to provide for the claimant. In Palmer v Dolman Ipp JA, after a review of the cases, observed (at [110]) that: "… the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act." See also Wheatley v Wheatley [2006] NSWCA 262 at [22]-[23] per Bryson JA (with whom Santow and McColl JJA agreed), addressing the second stage of the process required by Singer v Berghouse. 102 The authorities indicate that where the claimant has been estranged from the testator or testatrix, the application of s 7 of the Family Provision Act requires that the estrangement be appraised and its causes considered: Wentworth v Wentworth, Estate of G.M. Wentworth (unreported 14 June 1991, Bryson J) quoted in Wheatley v Wheatley at [22]. In addition, s 9(3)(b) expressly requires the character and conduct of the eligible person to be taken into account at the second stage of the process. Care should be taken, however, 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 the raw emotions experienced at the time. The "wise and just" testator or testatrix (Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 per Lord Romer) must be taken to understand this. 103 In the present case, the two Family Court judgments to which I have referred, although not specifically concerned with the relationship between the testatrix and the appellant, show how similar events can be seen quite differently through different eyes. Cohen J was very critical of the appellant for what he considered to be her bad behaviour. Lawrie J, in the later judgment, was much less critical of the appellant, seeing the prolonged litigious saga as a tragedy for all involved and as ruinous for the appellant. 104 Much attention was paid in argument to the Dachau letter. Whether or not it was actually sent by the appellant to the Deceased, the letter was intemperate, although perhaps not as gratuitously cruel as the primary Judge thought. But whatever the rights and wrongs of the incident that gave rise to the letter, the appellant and the testatrix maintained regular contact for years after it had been written. The substantial breakdown of the relationship between them more or less coincided with the breakdown of the appellant's marriage and the institution by her of the Family Court proceedings. In 1998, the testatrix revoked an earlier will under which the appellant shared the residuary estate equally with each of her two siblings, and made a fresh will effectively dividing the appellant's one third share of residue between her and her two children. The appellant herself said that the relationship continued until her mother "basically ended" it about the time of the Deceased's 80th birthday in May 2000, although they maintained some sporadic and brief telephone contact thereafter. 105 The appellant's 1997 letter reflected the bitterness that was manifest in the Family Court litigation. But she found herself opposed in that litigation not only to her former husband but, insofar as the custody and access disputes were concerned, also to her own mother. The rights and wrongs of such a traumatic situation are impossible to assess fully or accurately years after the event and when one of the parties has died. No doubt the appellant's 1997 letter was ill advised and hurtful but in large part at least, it was a product of the trauma she had experienced. 106 In my opinion, neither the estrangement between the Deceased and the appellant, nor the appellant's conduct towards the Deceased detract from the conclusion that the provision made by the will was inadequate for the appellant's proper maintenance and advancement in life. Accordingly, the appellant has satisfied the jurisdictional question posed by s 9(2) of the Family Provision Act.

What provision should be made? 107 The question is then what provision, if any, should be made for the appellant out of the Deceased's estate. This stage of the process involves similar considerations to the first: Singer v Berghouse at 210. It also involves the exercise of a discretion in the accepted sense (Singer v Berghouse at 211), although it is a discretion to be informed by the matters mentioned in s 9(3) of the Family Provision Act. 108 In this case, for the reasons already explained, the appellant's financial position is parlous and she requires provision from the estate to afford her a degree of economic security for the future. The evidence as to the appellant's accommodation needs appears to have been limited to an expression of her desire for a house costing in the order of $800,000 and some brief cross-examination directed to establishing that she could make do with a smaller house. The Court was not taken to evidence concerning the cost of acquiring more modest accommodation, in particular premises more or less equivalent to that rented by the appellant at the time of the hearing. However, a figure substantially more modest than $800,000 would enable the appellant, if she wishes, to obtain the security of her own home, although not necessarily accommodation of the standard that she apparently envisaged in her evidence. 109 An important consideration in this case is that provision can be made for the appellant out of the Deceased's estate without any impact on the standard of living that Peter and Vivienne have enjoyed. On the contrary, adequate provision can be made for the appellant and yet allow Peter and Vivienne to receive very substantial legacies from the estate of the Deceased. 110 It is appropriate that any provision for the appellant taken into account the estrangement between her and the Deceased. It is also appropriate that the provision take into account that both mother and daughter appear to have acted in a manner hurtful to each other from time to time. There is no question that the deceased wished to provide more generously for Peter and Vivienne than for the appellant. 111 Contrary to the respondents' submissions, I do not think that the Deceased's desire that her assets should not be used to pay for the costs incurred by the appellant in the Family Court proceedings is a significant factor in determining the provision to be made for the appellant from the estate of the Deceased. No doubt the crippling costs incurred by the appellant in the Family Court proceedings explains in large measure her current financial position. No doubt, too, the Deceased opposed the appellant pursuing the proceedings, although there is no evidence that the Deceased sought to restrain Tad from various applications on his own behalf. The fact is that the appellant has needs for which the Deceased did not adequately provide in her will. As regrettable and as destructive as the Family Court proceedings might have been, blame for them cannot be laid wholly at the appellant's door, as a reading of Lawrie J's judgment demonstrates. 112 In my view, the appellant should receive provision from the Estate in a total amount of $500,000. Since her entitlement under the will, after allowing for legal costs of the trial, is in the order of $165,000, this involves an additional provision for her of approximately $335,000 out of an estate worth a total of about $2.8 million. The additional provision will give the appellant the opportunity to achieve some economic security, including the possibility of acquiring a home unit or similar accommodation for herself, together with a small buffer against inroads into her capital created by living expenses. 113 The parties have agreed that any orders in favour of the appellant should not diminish the entitlement of the appellant's children under the Deceased's will. Accordingly, the additional provision for the appellant will necessarily reduce the legacies available to each of Peter and Vivienne. Because a legacy of $500,000 to the appellant increases the provision for her out of the estate by some $335,000, the result is that Peter and Vivienne will have their own legacies reduced by about $167,500 each. Even so, after allowing for the legal expenses of these proceedings, they will each receive from the estate legacies to the value of approximately $850,000. The end result seems to me consistent with the provision that a wise and just testatrix in the position of the Deceased, being aware of all the circumstances, would make for the appellant. 114 With two exceptions, the following orders were agreed by the parties to be an appropriate means of giving effect to the provision to be made for the appellant: 1. The appeal be allowed. 2. The orders made by the Associate Justice dismissing the appellant's claim and in relation to the costs of the proceedings be set aside. 3. The bequests to Karl Konrad Foley and Patrick Walter Foley under the will of the Deceased dated 23 August 2002 remain unaltered and be paid without the deduction of any costs or expenses associated with the proceedings in this Court or in the Court below. 4. The bequests referred to in Order 3 be satisfied by the payment to each of Karl Konrad Foley and Patrick Walter Foley the following sums: (i) $184,000 (ii) a sum representing simple interest on the sum of $184,000 calculated at the rate of 6% per annum from 19 June 2005 until the date of payment. 5. In lieu of the provision for the appellant in clause 5 of the will, the appellant be paid a legacy of $500,000.

6. Pursuant to s 13 of the Family Provision Act 1982 (NSW) the burden of payment of Order 5 shall be met out of all assets remaining in the estate after payment of the bequests referred to in Order 3 above, with the intent that the burden of the payment should be borne in equal shares by the beneficial entitlements of Peter James Ellis and Vivienne Joan Ellis.

7. The estate of the Deceased to pay the appellant's costs of the proceedings below, including the hearing before the Associate Justice and the costs of her appeal, on a party/party basis.

8. The respondents' costs to be paid out of the estate on an indemnity basis.

9. The estate of the Deceased is to have credit for any amount paid to the appellant on account of the provisions made in these orders. 115 The first exception is Order 9, which was suggested by the respondents and appears to be appropriate. The second is the provision for interest in Order 4. This, too, is appropriate since it ensures that the interests of the Deceased's grandsons are not prejudiced by the litigation. 116 In my opinion the appeal should be allowed and the orders set out above should be made.

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