Determination
52The Court may only make a family provision order if the requirements of s 59(1) of the Act are satisfied. If they are so satisfied then, pursuant to s 59(2) of the Act, the Court may make an order for provision.
53There has been discussion in the decided cases in this area of the question whether, and to what extent, the requirements of the Act (notably s 59) mandate a change from the position which pertained under the provisions of the predecessor statute, the Family Provision Act 1982. In this regard, particular reference should be made to the decision of the Court of Appeal in Andrew v Andrew (supra) at [6], [26]-[32] and [82]-[93].
54Associated with that discussion is the question whether it remains appropriate under the new legislation to undertake the "two-stage" process as described in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209 which required, at the first stage, an answer to the jurisdictional question whether inadequate provision had been made, and (if the jurisdictional question was answered affirmatively) at the second stage, an answer to the questions whether an order for provision should be made, and if so, what order should be made. This issue was the subject of discussion in Andrew (supra) at [6] per Allsop P, at [27], [29] and [41] per Basten JA, and at [65] and [94] per Barrett JA.
55I do not propose to add to that discussion. It may well be, as Allsop P stated in Andrew (supra) at [6], that the question whether the process engaged in by the court in s 59 can still be described as "two-staged" in the sense discussed in Singer v Berghouse (supra) "may be an analytical question of little consequence". In any event, as his Honour went on to state in the same paragraph:
The terms of the new Act are to be applied. The exercise of power to make the order is conditioned on the court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1) (b) as "whether to make [an] ... order and nature of any ... order." Section 60 (2) provides a detailed body of considerations for the task in s 59.
56Reference should also be made to Peters v Salmon [2013] NSWSC 953 where Ball J stated at [80]:
...it seems clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "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". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60.
57That seems to me, with respect, to be the proper approach whether or not it may properly be described as a two-staged process or, as suggested by Hallen J, the undertaking of "twin tasks" (see Doshen v Pedisich [2013] NSWSC 1507 at [127]).
58Paragraphs (a) and (b) of s 59(1) are satisfied in this case because the plaintiff is an eligible person within paragraph (c) of the definition contained within s 57 of the Act. It remains necessary to consider whether s 59(1)(c) is satisfied. The question which thus arises is whether adequate provision for the proper maintenance, education or advancement in life of the plaintiff has not been made by her father's will.
59It should be noted that in this context the words "adequate" and "proper" connote something different. Adequate is concerned with quantum, whereas proper is concerned with the standard of the maintenance, education and advancement in life of the plaintiff (see Verzar v Verzar [2012] NSWSC 1380 at [127] per Lindsay J).
60For the following reasons I have concluded that adequate provision for the proper maintenance, education or advancement in life of the plaintiff has not been made by the will of the deceased.
61The plaintiff is 46 years of age. It is true that she has no dependants, and apart from the problems described in Dr Gold's report, is in good health. Against that, she is a single woman and, as she deposes, there is no person liable to support her. The financial support she receives from her mother (who is a 76 year old pensioner who nonetheless still does about 8-10 hours of part time work per week) is plainly very limited. Aside from the gift of the Jeep and payment of an amount of $5,000 given in about 2003 or 2004, there was no evidence of any specific provision being made for the plaintiff by the deceased in his lifetime.
62Despite the clear inadequacies in the evidence concerning her financial position, I accept her evidence that she has substantial liabilities (in the order of $320,000) and accept that, at least in the period since her father's death she has struggled to meet those liabilities, principally the mortgage over the home in Woy Woy. I also accept that her business has suffered due to the effects upon her of her father's death.
63I am not able, on the evidence before the Court, to make any specific findings as to the income which the plaintiff has derived, and continues to derive, from her business. Nevertheless, in circumstances where the plaintiff has no savings, has had to resort to borrowing from friends and family, has incurred a relatively modest judgment debt which has remained outstanding since at least April this year, has not renewed the registration of the Jeep given to her by her father, and where there is no suggestion that she has hidden any assets or has a lifestyle that is anything other than modest, I infer that the business does not presently provide (and probably has not for at least a year) sufficient income to service the plaintiff's liabilities and leave enough left over to allow a reasonably comfortable standard of living.
64It is likely that once all of the legal proceedings (including this case) are concluded, the plaintiff will be in a position to focus more upon her business. She may be able to turn it into a successful business, but that outcome is far from certain. I would regard the plaintiff as having no more than reasonable employment prospects. She has a sound employment history (particularly in sales and marketing) and she presents, despite the problems she is currently experiencing, as an intelligent and capable person. She does not, however, appear to have any professional qualifications.
65The plaintiff has about $75,000 in superannuation funds. That is, to my mind, a fairly modest sum for a 46 year old who has significant debts and only a moderate earning capacity. The plaintiff has no financial reserves to call upon in the event that she became unable to work.
66It should also be noted that there is a reasonable chance that in the future the plaintiff will have to care for her mother. Even if that does not impose any direct financial burden on the plaintiff, it may well restrict her in relation to her business or employment.
67In these circumstances, I am satisfied that her father's will, which made no provision at all for the plaintiff, did not make adequate provision for the proper maintenance, education or advancement in life of the plaintiff.
68I do not regard the statements made by Campbell J in Collings (supra), which are referred to earlier in these reasons, as standing in the way of that conclusion. I do not read his Honour's comments at [67] as laying down any rule of general application, and I further consider that in the present case the evidence is sufficient to draw the inference at [63] above.
69It follows that the Court is satisfied of all the matters set forth in s 59(1) of the Act and it is appropriate to consider whether, in accordance with s 59(2) of the Act, an order for provision ought be made out of the estate of the deceased for the maintenance, education or advancement in life of the plaintiff.
70The matters I have referred to above in relation to s 59(1)(c) are also relevant to the question raised by s 59(2). Those matters have been taken into account in answering that question.
71The following matters also seem to me to be particularly relevant.
72(a) The relationship between the plaintiff and her father: The serious falling out between the plaintiff and her father caused an estrangement which lasted for more than five years. I do not think that it is necessary to dwell on what brought that situation about. As Mr Marshall recognised in his submissions, that matter is something of a distraction. That is particularly true in the present case because the evidence made it clear that following the death of Ms Cribb in 2010, the deceased wanted to re-establish relations with his daughter and, after a time, the pair had a genuine reconciliation.
73There seems little doubt that, following the death of Ms Cribb, the deceased became very lonely. He was divorced, and estranged from his only child. At that stage, the defendant seems to have become an important part of his life. She provided considerable assistance to the deceased and they were no doubt good friends. It is not altogether surprising that when the deceased came to make a will at that time, he chose the defendant to be the executor and the beneficiary.
74However, I conclude that it is likely that once the deceased had reconciled with the plaintiff in late 2011, he recognised that he ought to make provision in his will for his daughter. Of course, verbal statements made by testators have to be treated with some caution, and in this case the defendant clearly made some statements which were incorrect (notably, that he was no longer drinking heavily). Nevertheless, I think that his statements to the effect that he wanted to change his will in favour of the plaintiff are likely to have been sincerely made. Even if he had not finally determined to make such a change, the plaintiff was seen as a worthy object of his testamentary bounty.
75It is also relevant that shortly after the reconciliation, when the deceased was assaulted, the plaintiff spent a lot of time caring for her father and attending to his financial affairs.
76(b) The plaintiff's conduct: It is true that the plaintiff's own financial affairs, and in particular her failure over a lengthy period to comply with her taxation obligations, do her no credit. I do not think that the plaintiff's busy personal life and the impact of the breakdown of her parents' marriage excuses such a prolonged failure to meet her obligations. I regard this conduct of the plaintiff as significant, but do not think that it dictates that no order for provision should be made in favour of the plaintiff.
77(c) The size of the estate: As noted earlier, the estimated net value of the distributable estate is about $225,000. It is a relatively small estate, but it affords at least some scope to provide for the advancement of the plaintiff who is the only person making a claim under the Act.
78I have concluded that, pursuant to s 59(2) of the Act, an order for provision out of the deceased's estate ought to be made for the maintenance, education or advancement in life of the plaintiff. However, I do not think that it should be of the magnitude urged by Ms Pringle, namely, an amount $200,000.
79Having considered all of the above matters, as well as the position of the defendant, who undoubtedly was a good friend and support to the deceased at a difficult time in his life, it seems to me that a more modest order should be made, but one which would nevertheless provide an immediate and significant benefit to the plaintiff by enabling her to reduce her debts to a more manageable level. I think that an appropriate order for provision would be for the payment of a lump sum of $150,000.
80That sum would allow the plaintiff to almost halve her liabilities, to an amount of about $170,000, and she would be left with net assets of a little over $300,000. I consider that such provision would be adequate provision for the proper maintenance, education or advancement in life of the plaintiff. After the making of such provision, the balance of the estate remaining for the defendant would be approximately $75,000.
81I propose to make a family provision order in terms that the plaintiff receive out of the estate of the deceased a lump sum of $150,000. As such an order will almost certainly require the property in Gregson Street, Gloucester to be sold, it may be appropriate for consequential and ancillary orders to be made. These issues were not canvassed at the hearing. In these circumstances I will order that the parties bring in Short Minutes to give effect to these reasons. The Short Minutes should deal with interest on the lump sum, and the costs of the proceedings. Prima facie, it would be appropriate for interest (at the relevant rate for the purposes of s84A of the Probate and Administration Act 1898) to accrue after a period of about four months on any unpaid portion of the lump sum until it is paid in full. That period should be sufficient for a sale of the Gregson Street property to be completed.
82The plaintiff's costs should be paid out of the state on the ordinary basis, and the defendant's costs should be paid out of the estate on the indemnity basis.