At 209 to 210 the Justices continued:
"The determination of the first stage in the two-stage 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 the 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."
18 The will left only $10 to the plaintiff, the modern equivalent to the contemptible farthing or shilling of former days. The bulk of the estate went to the defendant. Indeed, as things work out, the plaintiff may not even be entitled to the $10 if no order is made.
19 So long as they make appropriate provision for those who the community would reasonably consider to have a claim on their bounty, people are free to leave their property to whomsoever they wish. Moreover, there is no prima facie rule that a person who chooses to leave their property to their children are somehow or other obliged to leave their property amongst their children in equal shares.
20 The first question I must address is did the testator leave the plaintiff without adequate provision for her proper maintenance, et cetera?
21 I have little difficulty in answering this question affirmatively. The testator had two children. Up until the divorce between the testator and his wife, the relationship between the members of family was amicable and normal. The testator at all times lived at Lightning Ridge, as did the rest of the family, up until the time when it was necessary for the wife and children to move to Sydney for educational purposes, namely the defendant's educational purposes.
22 During this period the plaintiff made contributions to the family welfare and made a loan to the deceased from her earnings, which he repaid. She also contributed to the pool, which allowed the defendant to attend university, and accepted with equanimity the family decision that only the boy child would be given a tertiary education.
23 Accordingly, for the greater part of her early life, the community would expect the testator, if the daughter had some needs, as is admitted she does, to have made provision for her.
24 Although the evidence is fairly slim, it would seem that the testator's views toward the plaintiff changed because of a number of factors. First, he appeared unhappy with the plaintiff because she sided with her mother during the rather bitter divorce proceedings between the testator and his former wife.
25 Secondly, it would seem that the testator was disturbed by rumours that the plaintiff was saying in her own Family Court proceedings that the testator had behaved in a sexually inappropriate manner towards her.
26 The plaintiff denied that she ever made any such allegation. However, such an allegation was at the very least leaked by "friends", or friends of the former husband of the plaintiff, to the testator.
27 Although it is not a vital matter, I found it hard to accept that the plaintiff's mother did not write the letter referred to in para 62 of the defendant's affidavit, and that the plaintiff and her mother were involved in spreading the allegations, which are now acknowledged to be without foundation. I must confess that I was not at all impressed by the plaintiff's mother, who from the moment she entered the witness box showed herself affected by the unrighteousness, in her own mind, of the defendant's cause.
28 The third reason that relationships soured was that the testator had no liking at all for the plaintiff's second husband, Peter Foster, whom she married in 1990. This was exacerbated when in 1995 Mr Foster and the plaintiff moved away from Lightning Ridge to Queensland, so that the testator was denied further contact with his grandchildren.
29 Next, there was virtually no contact between the plaintiff and the testator from 1990, on the defendant's case. The plaintiff's mother said that as the plaintiff and the testator were both residents of Lightning Ridge between 1991 and 1995 they must have seen each other in the area from time to time, and this is probably correct.
30 I should say that the plaintiff and Peter Foster moved to Roma in 1990, but by 1992 they had separated and the plaintiff returned to Lightning Ridge. Peter Foster reconciled with the plaintiff in 1994, and they remained in Lightning Ridge until they left for Beenleigh in 1995.
31 The defendant says that on the two occasions when the testator was in hospital in Sydney for serious matters the plaintiff never visited him once. The plaintiff acknowledges this. She says, however, that in 2001 she was living in Eagleby; she had two children and she just could not travel to Sydney to see her father.
32 I have very great difficulty in accepting this excuse. The children were, at that stage, aged 15 and 10. The probabilities of someone being able to watch them for a couple of days must be great. I say this just as a matter of general knowledge. The bus fare from Beenleigh to Sydney is not very great.
33 The plaintiff says that she did send and exchange Christmas cards with her father every year, but there is no documentary evidence of this; though PX09 was a photograph of the plaintiff's children marked "to Dear Granddad, lots of love from both of us, Chris and Vanessa" and it is clear that the grandchildren did visit the testator about once a year from 1995 onwards.
34 The non-contact between father and daughter over a significant period is a material matter. The vital part is the conduct of the plaintiff towards the testator, or perhaps even the public perception of the conduct of the plaintiff towards the testator. The question is whether the community, or the court as its representative, should say: "because of that conduct, the testator need not consider his daughter as requiring him to consider her when working out what his obligations were when he made his will".
35 Of course this can apply even where there is benign conduct involved. For instance, a daughter who is a millionaire pop star may well make it clear to her father that she no longer considers herself a person to whom he is obliged financially. That, however, is not this case.
36 It seems to me that the probabilities are that there was little contact between father and daughter over the period 1995 to 2001. There is evidence from the defendant's side that the testator in 1996 and 1997 told visitors on at least two occasions that he had no contact with his ex-wife or daughter since the divorce, not even a card, and if the plaintiff or her mother came on to his property he would shoot them.
37 The plaintiff is, of course, in no position to contradict this evidence, but it does reinforce the general flavour of non-contact.
38 It also must be remembered that Sheller JA said in Permanent Trustee Company Limited v Fraser (1995) 36 NSWLR 24, 43, when commenting on the fact that s 9(3)(b) of the Act requires the court to take into consideration the character and conduct of the eligible person before and after the death of the deceased:
"Section 9(3)(b) ... speaks not in terms of the court's refusing to make an order because of conduct disentitling but, with quite a different emphasis, of the court's taking into consideration the character and conduct of the eligible person before and after the death of the deceased person in determining what provision (if any) ought to be made in favour of the eligible person."
39 Bearing this in mind and despite the non-contact, it still seems to me that the $10 which he gave to his daughter was derisory and inadequate, and the first stage of the enquiry must be answered favourably to the plaintiff.
40 Accordingly, I turn to the second and more difficult question.
41 The testator only had a small estate, an estate which has been grossly diminished by the internecine strife between the siblings in this litigation. How, in the light of that small estate, should the testator have made provision for the plaintiff?
42 Mr Ellison says the answer is easy. The $10 he gave her was quite enough. He says that the testator had two children, one who was close to him, and one who had distanced herself. He knew there was not enough money to go around. The son had been good to him, the daughter had not. The daughter had married, had gone away to Queensland to live her own life with her family, and was not a prime candidate for benefaction, so that he was perfectly entitled to give what little he had to his son. Mr Ellison says that the proceedings should be dismissed, though he told me that if that happened he was instructed not to seek costs.
43 The assessment as to the quantum of any orders to be made should be made as at the date of the hearing. Mr Ellison says that it is most significant that after the testator's death on about 11 June 2002 the plaintiff and her children, without the permission of the executor, moved into the testator's house at Lightning Ridge and stayed there rent free until late October 2003, when they moved back into the former matrimonial home at Eagleby.
44 The plaintiff says that she did this not only because she had no safe place to live with her children, but also singularly to save wasting the estate assets with there being an unoccupied property. She admits she never paid rent, but said she put aside $50 a week for savings. None of this money has been produced, and the only explanation as to where it is, is that $1500 of it was given to her solicitors on account of legal costs.
45 The plaintiff says that she was only in the house until June 2003, a period of about 55 weeks. However, it would seem that there was still some of the family's possessions in the property, which was gradually moved, and I consider that the occupation period is more likely to be 70 weeks.
46 Assuming that the proper occupation fee is $50 a week, that is an amount of $2,750 to $3,500 which the plaintiff was ready to receive by way of benefit. When the plaintiff left the house, the defendant says she took everything out of the house, including even disconnecting and removing the hot water system. The photographs bear this out.
47 The plaintiff's explanation is that things in Lightning Ridge just go off because it is a fairly lawless area, but it is really just a bit hard to believe that the whole contents of the house and the backyard, and the hot water system, just disappeared. There is also a problem with a motor vehicle, another item that just disappeared, and I think it much more likely, on the evidence, that the observation of members of the plaintiff's family being seen in the vehicle were correct, rather than it just disappearing. However, the motor vehicle was only valued for estate purposes at $500.
48 Before she left the Lightning Ridge property, the plaintiff glued to the walls newspaper clippings, personal letters, family photographs, thus damaging the property. She even glued a salt and pepper shaker to the wainscoting. It is purely spiteful. It is difficult to assess the damage, but it seems to me there is no reason why the damage caused is not to be taken into account when assessing the plaintiff's award.
49 Despite her denials, it seems to me that the vandalism reinforces my general incredulity as to the plaintiff's version that things just go off in Lightning Ridge, and I find it more likely than not that she took, or disposed of these items. Again the value for probate purposes was only $2,000.
50 Thus Mr Ellison says that the plaintiff has already received at least $6,000 value from the estate, and in addition has caused it expense by her deliberate vandalism.
51 There was a lot of merit in this submission. However, there is no evidence to suggest that the testator's home at Lightning Ridge could have been let during the period that the plaintiff occupied it. Thus whilst the plaintiff got a benefit in rent free accommodation, the estate did not necessarily suffer a detriment.
52 I do not intend to waste time by going into all the debates about matters of spite between the parties. I will mention, however, that a typical example was the disposal of the testator's ashes. The defendant had left these ashes with the Walgett Tyre Service. The plaintiff complained that the ashes had been left there too long. She picked them up and put them down one of the testator's opal mines, but for a long while would not tell her brother which one.
53 If parties are going to carry on like that and spend money on litigation then they only have themselves to blame if there is very little left to divide up when the court makes its decision.
54 The plaintiff is not currently working. She says this is partly because she fell when painting a ceiling and fractured her fibula about two years ago. However, the principal reason seems to be that the plaintiff is living in an area where work for unskilled females of 43 years of age is difficult to obtain. However, she cannot leave the area because she is living in the former matrimonial home and cannot afford to live anywhere else.
55 Indeed, the probabilities are that even if she could find work she would not receive as much net income as she is currently receiving on supporting parent's benefit. This raises the question as to how far this Court can take into consideration Social Service benefits being paid to a plaintiff.
56 I considered this matter generally in Parker v The Public Trustee 31 May 1988, as yet unreported, and it has been followed in this Division on a number of occasions over the last 13 years. I there laid down seven basal provisions and I will repeat numbers 1, 2, 4 and 7, the only ones which seem to be relevant to the present case:
"1. The object of the Act is to compel persons to make provision for their dependants and not throw the maintenance of the dependants upon the public purse; see Lieberman v Morris (1944) 69 CLR 69.
2. It is no answer to a claim that a deceased failed to make proper provision for his dependant and that the dependant is entitled to a pension under the Social Security Act Re Hunter [1940] GLR 100, 101.
4. A wise and just testator however when formulating his bequests does take into account the income that the various beneficiaries would be receiving under superannuation or other pensions Re Lawford [1954] NZLR 1142, 1145.
7. Where the estate is small and especially where there are a series of claimants on the testator's bounty it may well be proper for the testator when making his will and the Court when framing its order to preserve a pension entitlement."
57 In proposition 7 I gave the analogy of what happens in the Family Court and instanced that Court's decision in Re Kauiers (1986) 11 Fam LR 41.
58 When following this decision in Whitmont v Lloyd 31 July 1995, unreported, Bryson J said:
"The protection of public funds from claims by indigent persons is not a purpose of family provision legislation that they are incidentally protected by the legislation, which was not enacted solely for the protection of private interests and serves public policy ... . In my opinion, the availability of Age Pensions and other social benefits is a circumstance which should be regarded, and particularly in small estates it may be appropriate to leave an applicant wholly or partly dependent on them or to mould the provision made so that their availability is preserved in whole or in part. The acceptance of benefits for which statute law provides is in every way legitimate, involving no social stigma and incurs no disapproval from the Court. It is not the Court's task to be vigilant to throw burdens off public funds and onto private estates."