Keaton v Gumulak

Catchwords

[2010] NSWCA 176 Andrew v Andrew (2012) 81 NSWLR 656[2014] SASC 86 Bondelmonte v Blanckensee [1989] WAR 305 Borebor v Keane (2013) 11 ASTLR 96[2007] SASC 327 Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164[2012] NSWCA 431 Burke v Burke (No 2) (2015) 13 ASTLR 313[2015] NSWCA 195 Butcher v Craig [2009] WASC 164 Carey v Robson (No 2) [2009] NSWSC 1199 Chan v Chan (2016) 15 ASTLR 317[2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646[2007] WASCA 235 Diver v Neal (2009) 2 ASTLR 89[2009] NSWCA 54 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635[2010] VSCA 195 Goodman v Windeyer (1980) 144 CLR 490[1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 Jones v Dunkel (1959) 101 CLR 298[1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Poletti v Jones (2015) 13 ASTLR 113[2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9[1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808[2008] UKHL 52 Rogers v Rogers [2018] NSWSC 1982 Salmon v Osmond (2015) 14 ASTLR 442

Judgment (27 paragraphs)

[1]

9] NSWSC 1199 Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Christie v Manera [2006] WASC 287 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kiernan v Evan Alexander George Cranston & Robyn Ruth Purcell as Executors of the Will of Frances Elizabeth Anne Cranston (No 2) [2019] WASC 410 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 Liprini v Liprini [2008] NSWSC 423 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Rogers v Rogers [2018] NSWSC 1982 Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Sammut v Kleemann [2012] NSWSC 1030 Sgro v Thompson [2017] NSWCA 326 Shannon v Steinmetz [2019] HCASL 332 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Tiburzi v Butler (2017) 17 ASTLR 1; [2017] SASCFC 89 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431 Yee v Yee [2017] NSWCA 305 Texts Cited: Rosalind Atherton, "The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5 Category: Principal judgment Parties: Kathy Keaton (Plaintiff) John Leslie Gumulak (Defendant) Representation: Counsel: F Austin (Plaintiff) D Lloyd (Defendant)

[2]

Solicitors: Gerard Malouf & Partners (Plaintiff) Wilson & Co Lawyers (Defendant) File Number(s): 2019/00168114 Publication restriction: Nil

[3]

Introduction

This case concerns the estate of Patricia Gumulak (the deceased). The Plaintiff, Kathy Keaton, is a now adult child of the deceased and she has made a claim for a family provision order out of the deceased's estate pursuant to Ch 3 of the Succession Act 2006 (NSW) (the Act). A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.
In this case, many of the persons involved share the same surname. As such, where it is necessary to do so, and without intending any disrespect, I have referred to persons, other than the parties, by first name to avoid confusion. I have referred to the second husband of the deceased, John Joseph Gumulak, as the Plaintiff's stepfather.
The deceased died on 31 May 2018, leaving a Will dated 27 May 2018. Probate of that Will was granted to the Defendant, John Leslie Gumulak, on 11 September 2018. He, too, is a now adult child of the deceased.
The proceedings were set down for hearing before me, for three days, commencing on 7 July 2020. At the hearing, Mr F Austin of counsel appeared for the Plaintiff and Mr D Lloyd of counsel appeared for the Defendant. The proceedings, however, were able to be heard within one day. This does all of the legal practitioners involved a great deal of credit. Prior to the hearing, they had complied with the directions that had been made regarding an agreed schedule of assets and liabilities and counsel had provided written submissions in a timely manner. At the hearing, they did not waste time on unnecessary, and immaterial, objections to affidavits, their cross-examination of witnesses was limited to essential matters, and the oral submissions were concise and to the point. Ultimately, they saved the parties a large amount of costs, and time, which, otherwise, would have been incurred, had the hearing continued for the three days.
At the conclusion of the hearing, having heard the evidence and the submissions of counsel, with the consent of the parties, I informed them that I was able to express the orders that I proposed to make and that I would publish my reasons subsequently. I stated that I was satisfied that adequate provision for the proper maintenance and advancement in life of the Plaintiff had not been made by the deceased's Will and I then made the orders set out later in these reasons.

[4]

Some formal matters not in dispute

The Plaintiff commenced these proceedings by Summons filed on 29 May 2019. It was not in dispute that the Plaintiff had commenced the proceedings within time (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.
Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order. It was agreed that the Plaintiff, as a child of the deceased, is an eligible person: s 57(1)(c) of the Act. It is not necessary that the child of the deceased be a dependant at the time of the deceased's death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person" in s 57(1)(c)).
However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, "… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so …". This factor, however, will not be relevant, in the case of a child of the deceased, to whether the applicant is an eligible person.
By Clause 3 of her Will, the deceased dealt with all of her estate. There is, therefore, no scope for the operation of the rules of intestacy. It is sufficient, hereafter, to only refer to the Will of the deceased and its terms.
A family provision order may be made in relation to property that is not part of the deceased's estate, but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act. There was no suggestion that any property could be designated as the notional estate of the deceased.
It was clear that each of the deceased's three children, the Plaintiff, the Defendant, and Anne Maree Butler, is an eligible person. Ms Butler played no role in the proceedings, although she may have been present during the hearing. There is the former spouse of the deceased, Mr Warren Keaton, who is the father of the Plaintiff, who is also an eligible person. At the hearing, Mr Austin informed the Court that Mr Keaton was present in Court and that he was aware of the proceedings. Mr Lloyd confirmed that, in any event, Mr Keaton had been served with notice of the application, and of the Court's power to disregard his interests. In the circumstances, in determining the Plaintiff's application for a family provision order, the Court has disregarded the interests of Mr Keaton, as a person by, or in respect of, whom, an application for a family provision order may be made but who has not made an application: s 61(2) of the Act.

[5]

Background Facts

It is next convenient to set out a narrative of some relevant background facts that were not the subject of dispute between the parties. To the extent that any are in dispute, what follows should be regarded as the findings of the Court.
Although the precise date was not disclosed in the evidence, the deceased was born in about 1953 and died on 31 May 2018. Whilst a teenager, she commenced a relationship with Mr Keaton. There was one child of that relationship, being the Plaintiff, who was born in February 1970.
Approximately 18 months after the Plaintiff was born, her parents separated. After the separation, the Plaintiff spent a short period living with her father and, then, with her maternal grandparents. From the age of about two, the sole custody of the Plaintiff was with the deceased.
In or around 1971, the deceased commenced a relationship with John Joseph Gumulak. The deceased and Mr Gumulak had two children, being the Defendant, who was born in October 1973, and Ms Butler, who was born in September 1974. In the late 1970s or early 1980s, the deceased and Mr Gumulak married.
It was not in dispute that the Plaintiff's stepfather would physically discipline each of the children. The Defendant deposed in his affidavit, and confirmed in cross-examination, that his father would use a belt to discipline each of the children. What was in dispute, however, was the nature and the extent of that physical discipline, and its effect, upon the Plaintiff. This is a matter to which I shall return.
The Plaintiff left the family home when she was 16 years of age. Thereafter, she continued to receive some financial assistance from the deceased. The precise nature and regularity of the financial assistance was not disclosed in the evidence.
Sometime after leaving the family home, the Plaintiff commenced a relationship with, and then married, David Pattison. There were two children of the relationship, Michael Pattison and Scott Pattison.
In or around 2000, the Plaintiff and Mr Pattison separated.
Sometime thereafter, in or around 2000, the Plaintiff commenced a relationship with Kerry Paterson. They were married in 2003. There was one child of that relationship, Blake.
In 2014, the Plaintiff was diagnosed with Post Traumatic Stress Disorder (PTSD) and Borderline Personality Disorder. It was her "belief" that the PTSD was caused by the discipline, and the harsh treatment, imposed upon her by her stepfather throughout her childhood. There was virtually no medical evidence to support her belief.

[6]

The deceased's Will

By Clause 2 of her Will dated 27 May 2018, the deceased appointed the Defendant as the executor of her estate. Then, the deceased bequeathed all of her jewellery to be shared between Ms Butler and two of her granddaughters. The deceased then made seven specific pecuniary legacies, each of $10,000. One of those legacies, relevantly, went to the Plaintiff: Clause 3(b)(ii). This lump sum represented the total extent of the financial provision made for the Plaintiff under the Will. The remaining six pecuniary legacies were gifted to, or shared between, a number of the deceased's grandchildren. There was no dispute in the proceedings that those six pecuniary legacies should be distributed to them, and should not bear any of the burden of the provision to be made for the Plaintiff: Tcpt, 7 July 2020, p 2(22-31), p 4(40-48).
As stated, the rest and residue of the deceased's estate was divided, in equal shares, between the Defendant and Ms Butler.

[7]

The nature and value of the estate

On 9 June 2020, I directed the parties to provide an Agreed Schedule that contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of the schedule; 3. the estimated costs and expenses of any property that is to be sold; 4. the estimated costs of each party calculated on the ordinary and on the indemnity basis inclusive of GST; and 5. any costs of any party that had been paid, and in relation to the Defendant, whether those costs had been paid out of the estate of the deceased.
What follows has been taken, principally, from the Agreed Schedule that the parties prepared in accordance with that direction, which was tendered as Ex AS1, and the discussion between Bench and Bar at the commencement of the hearing. In the figures below, I have omitted a reference to cents. This will explain any apparent arithmetical miscalculation.
The deceased's estate, as at the date of death, consisted mainly of two parcels of real property. The first was a property at Halekulani, which I understand to be a suburb of the Central Coast region of New South Wales, had an agreed estimated value of $460,000 (the Halekulani property). The second was a property at Bonnells Bay, which I understand to be a suburb of the City of Lake Macquarie, in New South Wales, had an agreed estimated value of $580,000 (the Bonnells Bay property). The estate also consisted of: various bank accounts ($49,693); proceeds of superannuation accounts ($113,109); shares in NIB and IAG ($11,478); two motor vehicles ($6,500); and furniture and other personal effects ($2,000). Additionally, the deceased's estate contained what remained of the estate of the Plaintiff's stepfather ($50,000). As such, the gross value of the deceased's estate, at the date of death, was approximately $1,272,781.
As at the date of death, the deceased's estate had liabilities of approximately $219,291. These liabilities included a debt due to St George Bank, secured by a mortgage ($174,226), and two credit card debts, also with St George Bank ($4,572). There was also a liability for funeral and other expenses associated with the administration of the estate of the Plaintiff's stepfather ($40,492). The last amount was not agreed between the parties "pending production of receipts". Nothing further was said about the estimate at the hearing, and for the purpose of the calculations, that figure was assumed to be accurate.

[8]

The Costs of the Proceedings

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330 [54]; [2016] NSWCA 222 at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18]. I have made this statement, many times, in the context of a claim for a family provision order, particularly in relation to estates with a small value.
In the present case, the Plaintiff estimated her costs and disbursements at $81,800 (inclusive of GST), calculated on the ordinary basis. When calculated on the indemnity basis, that amount increased to $101,500 (inclusive of GST): Ex AS1.

[9]

Relationship between the Plaintiff and the deceased

The nature of the relationship between the Plaintiff and the deceased was advanced as a key issue in these proceedings. For her part, the Plaintiff described the relationship between her and the deceased as a "very close" one: Affidavit, Kathy Keaton, 26 June 2019 at par 19. The main impediment to the relationship, in the Plaintiff's mind, was her stepfather.
However, as will be read below, there were various times at which the relationship between the Plaintiff and the deceased was not close at all. Indeed, there were periods in which the Plaintiff avoided visiting, or speaking to, the deceased. What was apparent, on the reading of all of the evidence, was that mother and daughter became estranged. What remained in dispute, however, between the parties, was the cause of that estrangement, and the significance that it had on whether an order for provision should be made.

[10]

The early years of the relationship

The Plaintiff gave little evidence of the relationship between her and the deceased during her childhood, other than asserting that she was wholly dependent on the deceased during these years. Instead, most of her evidence focussed on her relationship with her stepfather.
The relevance of the Plaintiff's relationship with her stepfather to a claim for provision out of her mother's estate is questionable. Nonetheless, the relationship assumed a particular significance in the evidence and in the submissions. It is, therefore, necessary to consider it, albeit briefly.
The Plaintiff described the relationship with her stepfather as abusive. It was her evidence that he was violent and would physically discipline her with a belt. The Defendant confirmed that his father, the Plaintiff's stepfather, would discipline all three children with his belt. The Defendant deposed at par 12 of his affidavit sworn 6 January 2020: "Our father was the disciplinarian in the family, and I considered that the three siblings were all treated exactly the same. Our father was very firm but also fair and never disciplined any of us for no reason."
The Plaintiff, in her evidence in reply, disputed the Defendant's characterisation of her stepfather as firm but fair. In addition to the physical abuse, she asserted that he would also verbally abuse, and bully, her. She asserted that she was singled out, from her siblings, and given an unreasonable amount of chores to do.
To a limited extent, the Plaintiff's account was corroborated by the evidence of Susan Bugg. Ms Bugg swore an affidavit, read in the proceedings, confirming that the Plaintiff was given an extensive list of chores and that the Plaintiff was required to write lines if she failed to complete the list. Ms Bugg recalled one occasion when the Plaintiff's stepfather was verbally abusive towards the Plaintiff. Ms Bugg was not cross-examined.
Mr Austin spent some time, in the cross-examination of the Defendant, putting to him that the Plaintiff's stepfather had exhibited anger whilst disciplining the children. The following exchange occurred in cross-examination (Tcpt, 7 July 2020, p 49(01-28)): "Q. Sir, when your father used a belt to discipline you, Kathy or Anne, he exhibited anger? A. I - I can't make a claim as to what he was exhibiting other than the reason for - the motivation for the discipline is because we failed to - like, if - if - if we've misbehaved after we've received a warning, or if we'd not completed chores, even though we've been asked several times. It - I can't speak to what his motivation or his feeling was when he was applying the discipline. So I can't speak to that. Q. I appreciate that, but he exhibited anger when he belted you. A. I - I can't speak to that. I can't speak to what he was feeling or - or what was - he was exhibiting. I mean, as a - as a young kid, like, being at school, given the cane, you could say that to a - a - about a teacher giving you force, you know. They have to exhibit something that could be observed as being anger. I - I really can't speak to it. Q. Did you observe him in anger? A. Sorry? Q. Did you observe him become angry before and during the disciplines? A. The act of the smack, if that's considered in court as anger Q. Well, to be a bit - sorry, I cut you off. A. No. Q. Did he ever raise his voice or yell at you before using a belt to discipline you? A. Yes. As a warning."

[11]

The relationship between 1986 and 2003

The Plaintiff moved out of the family home when she was about 16 years of age. Although she asserted that she was kicked out of the home by her stepfather, that assertion was disputed by the Defendant.
The Plaintiff contended that the relationship between her and the deceased was close and supportive through this period. She deposed to the deceased loaning her money on occasions, and to them spending special occasions such as Christmas, together.
Shortly after the Plaintiff moved out of the family home, she and her siblings learned, for the first time, that the Plaintiff's stepfather was not the Plaintiff's biological father.
To an extent, the Defendant corroborated the nature of the relationship as the Plaintiff had asserted it. He confirmed that the Plaintiff would return to the family home every two or three weeks during a period in which she lived at Guildford, and that she would also return for special occasions. However, he deposed: "Our parents always welcomed the Plaintiff and her family to their home and the Plaintiff would turn up for a period of time at Christmas and for birthdays but then leave."
While their perception of these visits was somewhat different, it was plainly not in dispute between the parties that visits had occurred.
The Defendant also confirmed that the deceased provided the Plaintiff with financial assistance. However, he contended that the Plaintiff never paid back any of the amounts that had been loaned.
On at least one occasion, during the 1990s, the Plaintiff moved back in with the deceased and the Plaintiff's stepfather. The Defendant asserted that, for some of this time, the Plaintiff did not pay rent or assist with household duties. Although the Plaintiff accepted that she did not pay rent, she contended that she did help out, otherwise, with household duties.
The Defendant deposed that, after the Plaintiff commenced her relationship with Mr Paterson, the deceased and the stepfather were not welcomed by the Plaintiff. He deposed, also, that the Plaintiff did not make attempts to visit the deceased and her stepfather.
When the Plaintiff and Mr Paterson were married in 2003, none of the deceased, the Plaintiff's stepfather, the Defendant, or Ms Butler, was invited to the wedding. The Plaintiff explained that the wedding was "just a formality" and was not a big celebration.

[12]

The relationship between 2003 and 2014

In or around 2003, the deceased was hospitalised due to complications arising from a rare blood disorder. The Plaintiff gave evidence that she was a consistent source of support and care for her mother during this time. This ranged from visiting her in hospital every day, to performing household chores.
For his part, the Defendant accepted that the Plaintiff provided some assistance and did visit during the deceased's hospitalisation in 2003. However, by reference to his own contact with the deceased during this period, he seemed to suggest the frequency and significance of such support was not as much as the Plaintiff asserted.
The Defendant also referred to an incident around Christmas 2007 where the Plaintiff and the deceased were involved in a physical altercation. While the Defendant was not present on that occasion, he deposed to his second-hand account of what occurred: "… the Plaintiff came over and stormed into our parent's house and started yelling very loudly and struck my mother causing our mother to fall to the ground where the Plaintiff continued by scratching her and pulling her hair. Anne's husband, Brett, and my father had to pull the Plaintiff off our mother and remove her from the house."
The Plaintiff did not deny that the physical altercation had occurred. She asserted that she had visited the deceased's home looking for Ms Butler's husband in relation to an alleged dispute over invested moneys. Following an argument between the Plaintiff and Ms Butler: "Mum got upset and told me to leave. She jumped up from the lounge which she was sitting in and walked towards me waving her hands around. Initially I though [sic] mum was going to hit me so I put my hands up and pushed her away from me by pushing on her shoulders. Mum then grabbed me on the shoulders and we scuffled holding onto each other around the shoulders. I then stormed out. Brett and John never separated us, they weren't even in the room with us when the scuffle occurred. I stormed out of the house and passed Brett and John in the kitchen on my way out. At no stage did I strike, scratch or pull my mother's hair."
However, in cross-examination, the Plaintiff accepted the following (Tcpt, 7 July 2020, p 37(39-50)): "Q. There was a physical altercation between you and your mother on Christmas day in 2007. Is that true? A. I think it was Christmas Eve, yeah. And no, it wasn't between my mother, it was to do with a confrontation between myself and my sister actually. Mum stepped into the situation. I didn't go over there to confront my mother at all. It was between my sister and I. Q. Isn't what happened that you said some things to your mother to the effect that you regarded her as being at fault for things that had happened to you in your childhood and said things like that to her? A. I've said things to her that I felt that she didn't protect me and that I felt neglected. Yeah."

[13]

The relationship after 2014

What emerged as a common thread through the evidence of the Plaintiff and the Defendant was that the relationship between the Plaintiff and the deceased significantly deteriorated in 2014. Unsurprisingly, they differed as to the cause of that deterioration.
In 2014, as averred to above, the Plaintiff was diagnosed with PTSD and Borderline Personality Disorder. As earlier stated, the Plaintiff believed that her PTSD was caused by the treatment suffered at the hands of her stepfather. The Plaintiff raised this belief and her concerns with the deceased. However, in the Plaintiff's view, the deceased did not provide an appropriate level of support at this time. She deposed at pars 25-26 of her affidavit sworn 26 June 2019: "My mother did not want to acknowledge what caused my sickness and she struggled to provide me with the emotional support I needed during this time. I would try to talk to my mother about my diagnosis, however she would get uncomfortable and change the subject. She was very dismissive of my condition and the cause. Her response became a trigger for me, and I would become angry, which is a symptom of my diagnosis. After my diagnosis, I tried my best to maintain a good relationship with my mother, however she was reluctant to be around me when I was unwell. When I was down and depressed I would become tearful and emotional. I yearned for love and support and became very needy during these times."
It would seem that the Plaintiff felt that the deceased was dismissive of her condition. Perhaps, more importantly, the Plaintiff considered that the deceased did not believe that the cause of that condition was, ultimately, the Plaintiff's stepfather. This was a view that was the Plaintiff held, consistently, through the proceeding years.
In 2015, the Plaintiff recounted an incident where the deceased and Ms Butler had come to visit the Plaintiff at her home. Upon the Plaintiff raising, again, the issues concerning her condition, she deposed that an argument erupted between the deceased and her. She wrote at par 28: "My mother denied the issues, and this caused me to get upset. The two of us had an argument and my mother ran out. She implied that my illness was all in my head and that it had nothing to do with my upbringing. We did not really speak after this. This was very upsetting for me as I had always had a strong bond with my mother."

[14]

Testamentary intentions of the deceased

There was limited evidence of the testamentary intentions of the deceased. The Plaintiff deposed at par 23 of her affidavit sworn 26 June 2019: "In around approximately 2008, my mother-in-law told me that my stepfather had been pressuring my mother to write me out of her will. My mother-in-law was informed of this by my mother, as the two of them were best friends. I spoke to my mother about this. She told me she would never do that and that her estate would be split evenly between her three children. I had always assumed that I would be provided for in her will."
The Defendant contested this portrayal of the deceased's testamentary intentions, although he did not dispute (nor could he) that the conversation to which the Plaintiff referred had occurred. However, the Defendant deposed at par 33 of his affidavit sworn 6 January 2020: "Our father updated his Will so that the Plaintiff would not receive an equal part of his Estate if he had survived our mother. I do not believe that there was any pressure placed on our mother to do the same. Our mother adjusted her Will after our father's death after a very considered process, in which she gave the Plaintiff every opportunity to resume their relationship. Our mother and I had a number of conversations in relation to ensuring that her affairs were in order."
By the date of the deceased's Will, 27 May 2018, the relationship between the Plaintiff and the deceased had deteriorated significantly. It is, therefore, unsurprising that the Plaintiff did not receive an equal share of the residuary estate.
I shall return below to the relevance of the deceased's testamentary intentions in assessing a claim for provision made under the Act.

[15]

The situation in life of the Plaintiff

The Plaintiff is currently 50 years of age. She is separated from her husband, Mr Paterson, but no divorce order has been entered. Currently, she lives in rented accommodation in Lake Haven, a suburb of Wyong on the Central Coast of New South Wales. She resides there with her sons, Scott and Blake, and her father, Mr Keaton.
The Plaintiff has few assets. In her updating affidavit sworn 4 June 2020, she deposed to a small amount of cash in bank ($863) and two superannuation accounts (totalling $54,833). The Plaintiff's Centrelink Income Statement dated 15 May 2020 disclosed household and personal effects valued at approximately $5,000. It would also appear that she owns a car, the value of which was not disclosed.
Shortly after swearing that affidavit, the Plaintiff received $24,185 as her share of the deceased's superannuation death benefit. The balance in her bank account as at 19 June 2020 was approximately $23,832.
In her primary affidavit sworn 26 June 2019, the Plaintiff disclosed owning shares in Suncorp valued at approximately $1,884. An updated valuation of these shares, assuming the Plaintiff still possesses them, was not provided.
Her liabilities total approximately $19,089, comprising an amount owed on a credit card ($4,675) and a car loan ($14,414).
The Plaintiff is employed as a call centre consultant and receives a gross income of $31,934 per annum. In her oral evidence, she accepted that, in view of deductible expenses, she paid very little, if any, tax on that income. She accepted that, in some years, she might even receive a tax refund, and in others, she might incur a tax liability of around $1,000.
The Plaintiff receives child support in the amount of $25 per month.
In addition to her income for her employment and the child support payments, the Plaintiff receives Centrelink benefits related, inter alia, to her status as a carer for her son, Scott. As at 15 May 2020, the Plaintiff was receiving approximately $587 per fortnight less a deduction of $80 (being for repayments of a loan and a speeding fine).
In cross-examination, the Plaintiff clarified that the amount she receives from Centrelink varies from time to time. Her entitlement may increase when she borrows money from Centrelink or when she does not work a particular day or week. Equally, her entitlement may decrease, as averred to above, when she repays those borrowed amounts.

[16]

The medical evidence

At the commencement of the hearing, the Plaintiff tendered, without objection, extracts of medical records relating to the Plaintiff: Ex P1.
Some of the documents in Ex P1 merely confirmed the nature of the Plaintiff's medical conditions. For example, Ex P1/197 was a copy of the Plaintiff's Patient Health Summary from Grace Medical Care. It confirmed that in 2012 the Plaintiff was diagnosed with breast cancer and in 2014 she was diagnosed with PTSD and Borderline Personality Disorder.
The Defendant did not dispute that the Plaintiff suffered from these conditions.
Other parts of Ex P1 were relied on variously by Mr Austin and Mr Lloyd to show a connection, or lack of connection, between the Plaintiff's medical conditions and her conduct towards the deceased.
Although I will return to the submissions made by both counsel below, it suffices to say that the medical evidence was equivocal as to any link between the Plaintiff's medical conditions and her conduct towards the deceased.
In some documents, the Plaintiff disclosed that she felt her concerns were discounted, or invalidated, by the deceased. For example, at Ex P1/200 was a copy of a record of a surgery consultation by Dr Oliver Weir dated 22 July 2019: "CSA from stepfather. Invalidated by mother. Mother died 12m ago. Lacks support from siblings due to her illness."
At Ex P1/205, there was a copy of a surgery consultation record dated 22 February 2018 from Dr Rukhsana Javed. The record relevantly provided: "not feeling well at all still low mood anxious insomnia difficulties with her son Scott who is becoming more of a recluse day by day mother is dying but kathy has not had anything to do with her since her childhood abuse"
There were other passages that merely referred to the Plaintiff's relationship with the deceased as being a source of stress without referring to the actions of the Plaintiff's stepfather. For example, in a letter dated 15 March 2018, (Ex P1/230), Dr Javed listed, amongst other things, as a "Barrier": "Kathy's mother is dying, from a terminal illness."
Other passages in the medical records indicated that there were other aspects of the Plaintiff's life that were causing her emotional difficulty. Variously these included issues with the care of her son Scott (Ex P1/209, Ex P1/212, Ex P1/235), Mr Keaton coming to live with her (Ex P1/215), her relationship with her partner (Ex P1/262), and a misdiagnosis of bipolar disorder (Ex P1/219).

[17]

The Submissions

I have benefited from the written submissions provided by both Mr Austin and Mr Lloyd prior to the hearing and from their detailed oral submissions at the conclusion of the hearing. I have carefully considered each of the submissions made and shall only refer to certain submissions, by way of emphasis, below.
Mr Austin put at the commencement of his written submissions that "[e]strangement lies at the heart of the case". He referred to my decision in Rogers v Rogers [2018] NSWSC 1982 for the relevant principles in cases of estrangement. I will return to what I said in that case below.
As to the relationship between the Plaintiff and the deceased, Mr Austin referred to the Plaintiff's evidence regarding her PTSD. He echoed her evidence that the reason for the estrangement was the deceased's refusal to acknowledge that the abuse the Plaintiff suffered at the hands of her stepfather was the cause of her PTSD. He submitted that the Plaintiff's evidence as to the abuse was corroborated by the evidence of Ms Bugg, to which reference has been made above.
As to the Defendant's apparently contradictory evidence, Mr Austin submitted at par 35 of his written submissions: "The examples that John makes in his affidavit of 6 January 2020 to illustrate Kathy's behaviour towards the deceased is largely comprised of hearsay conversations with the deceased, is respectfully vague and devoid of any context, and caution needs to be exercised in dealing with this evidence, particularly so where such statements are uncorroborated." (citations omitted)
I remember, in this regard, as I must, the comments of Campbell JA (Bergin CJ in Eq and Sackville AJA agreeing) in Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164 at 179 [66]; [2012] NSWCA 431 at [67]: "It is elementary that in a claim based on communications with a deceased person, the court treats uncorroborated evidence of such communications with considerable caution, and is entitled to regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available: Plunkett v Bull (1915) 19 CLR 544; Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789; Hunt v Barlow [2000] NSWSC 324 at [5]-[8] per Bryson J; Cross on Evidence at [15150]. Ultimately, though, the question remains whether the claim has been made out on the balance of probabilities. The high degree of suspicion that Lord Morris showed in Lachmi Parshad v Maharajah Narendro Kishore Singh Bahadur [1891] UKPC 42; (1891) LR 19 Ind App 9 to the absence of possible corroborating witnesses is a function of the highly suspicious and unlikely character of the claim of the plaintiff in that case, internal inconsistencies in the evidence, and allegations of forgery. It does not stand for a principle that all possible corroborating witnesses must always be called in a claim against a deceased estate."

[18]

The Statutory Scheme

I have, in many cases, described the statutory scheme and the general principles which guide its construction. For the benefit of the parties, I shall repeat the relevant principles.
Section 59(1) of the Act confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly, the Court is satisfied as to matters, namely that: 1. The applicant, the person in whose favour the order may be made, is an eligible person; and 2. … 3. At the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased.
Thus, to justify an order for provision under the Act, the Court, relevantly, must be satisfied that the deceased has not made "adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made …": s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as the court "thinks ought to be made" for the identified purposes: s 59(2).
Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on her, or his, estate: Sgro v Thompson [2017] NSWCA 326 at [6] (Payne JA). The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act, and the deceased's Will applies unless a specific application is made and acceded to by the Court.
Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of the applicant.

[19]

Some Additional Principles

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the court's function to achieve some kind of equity between the various claimants.
As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
In Stott v Cook (1960) 33 ALJR 447 at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to the Court's own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." (emphasis in original)
Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."

[20]

Claim by an adult child

As this is a case where the Plaintiff is an adult child of the deceased, it is necessary to the principles that guide the determination of such an application. I have referred to those principles in many cases, and merely repeat them here: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]-[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442 at 463 [109]-[110]; [2015] NSWCA 42 at [109]-[110] (Beazley P, McColl and Gleeson JJA agreeing). 3. Generally, also, "… the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58] (Brereton J). 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545-546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309-310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44-45 (Nicholson J); Taylor v Farrugia at [58]. 5. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]-[90] (Martin CJ); Butcher v Craig [2009] WASC 164 at [17] (Sanderson M). 6. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2.

[21]

Estrangement

I set out the principles relevant to family provision claims in the case of estrangement in Underwood v Gaudron [2014] NSWSC 1055 at [230]-[233]. An appeal from that decision was dismissed by the Court of Appeal in Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269. Their Honours did not express any disapproval of the summary that I had set out at first instance.
As I observed in Rogers v Rogers at [150], a case to which Mr Austin made reference, the summary I provided in Underwood v Gaudron has been referred to, without disapproval, and in some cases with approval, in a number of subsequent authorities. To those authorities may be added the recent decision of Tottle J in Kiernan v Evan Alexander George Cranston & Robyn Ruth Purcell as Executors of the Will of Frances Elizabeth Anne Cranston (No 2) [2019] WASC 410 at [282].
I repeat what I wrote in Underwood v Gaudron: "On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359, at [80]: 'The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.' Because, in this case, there is a factor raised by the deceased (and by Mary and Kathryn) that bears on the quality of the relationship, being that Helen was estranged from the deceased for about 20 years before death, it is necessary to set out some other general principles which should be remembered: (a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33]. (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. 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.' (c) There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to 'ample' provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. (d) The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one 'who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility': Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.

[22]

(e) As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed): 'If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will.' (f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3]. (g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]. (h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102]. In Andrew v Andrew, Basten JA endorsed what I had said about estrangement, much of which is set out above, as follows: 'As explained by the primary judge, the term "estrangement", which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the "natural" process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience.' His Honour added: 'The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation. ... Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of "love and support" from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother's will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility. … Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant.'"

[23]

Qualifications on "Principles"

As long ago as 1980, in White v Barron, at 440, Stephen J wrote: "… this jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian at [117]), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. Cases involve different classes of eligible person, different factual circumstances, and different competing claims by others upon the estate of the deceased.
As Lindsay J wrote in Verzar v Verzar at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox at [18]-[19] (Basten JA), [66]-[67] (Barrett JA, Gleeson JA agreeing); in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329 [84]-[85]; [2015] NSWCA 195 at [84]-[85] (Ward JA, Meagher and Emmett JJA agreeing); Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and Steinmetz v Shannon at [37] (White JA). They must be remembered.

[24]

Determination

As already averred to, there was no dispute that the Plaintiff was an eligible person. Nor was it in dispute that she commenced her claim within time. The first question, therefore, is whether, at the time the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has been made by the deceased's Will.
What is written below should be read as a continuation of what has been written above. In coming to the conclusion expressed below, I have had regard to the factual matters set out above.
When the Court approaches the question for which s 59(2) of the Act provides, it should place itself in the position of the deceased, and consider what she ought to have done in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application. The Court treats the deceased as wise and just, rather than as a fond and foolish testatrix: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales at 19-20 (Dixon CJ). The Court should also make allowance for current social conditions and standards: Andrew v Andrew at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order.
The Court is required to make, and I have made, an assessment of the financial position of the Plaintiff, the size and nature of the deceased's estate, the relationship between the Plaintiff and the deceased, and the competing moral, and financial, claims of the beneficiaries: see, for example, McCosker v McCosker at 571-572 (Dixon CJ and Williams J); [1957] HCA 82; Singer v Berghouse at 209-210 (Mason CJ, Deane and McHugh JJ); Vigolo v Bostin at [16] (Gleeson CJ), [75] (Gummow and Hayne JJ), and [112] (Callinan and Heydon JJ); and Tobin v Ezekiel at [70] (Meagher JA). I have also remembered that neither of the beneficiaries gave evidence of his, or her, financial resources and needs.
As would be apparent from the evidence as set out above, the relationship between the Plaintiff and the deceased was advanced as the major issue in this case. In assessing that relationship, I have been mindful not to descend into the minutiae of the interactions between the Plaintiff and the deceased. I have also remembered that the precise cause of that estrangement was a matter of dispute between them. Ultimately, it is neither desirable, nor possible on the evidence before me, to determine with any degree of confidence the precise cause.

[25]

Costs

At the commencement of the hearing, counsel indicated that I would not be able to deal with costs as part of these reasons. The implication from that being that there may, depending on the result, have been some documents either or both wished to tender on the issue of costs.
In view of the fact that I informed the parties of the result and my orders at the conclusion of the hearing, I was able to deal with the issue of costs immediately.
At that time, neither party sought to tender any documents or make any submissions that I should make an order other than the usual order as to costs.
The principles relevant to the exercise of the Court's discretion as to costs are well known, and I do not propose to repeat them here.
To their credit, the parties were able to agree on the quantum of the Plaintiff's costs. This enables me to make an order pursuant to s 98(4)(c) for costs to be paid in a specified gross sum instead of assessed costs. Such an order saves the parties from the costs of assessment and prevents further delay in the administration of the deceased's estate.

[26]

Orders

In view of the above, I made the following orders at the conclusion of the hearing: 1. Orders, pursuant to s 59 of the Succession Act 2006 (NSW) that in lieu of the provision made for her in Clause 3(b) of the Will dated 27 May 2018 of Patricia Gumulak, the Plaintiff receive, by way of provision, a lump sum of $95,000. 2. Orders that no interest is to be paid on the lump sum if it is paid by 1 September 2020; and if not so paid, interest is to be paid on any unpaid part thereof, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from 2 September 2020 until the date of payment in full. 3. Orders that the burden of the provision made for the Plaintiff be borne equally by John Leslie Gumulak (the Defendant) and Anne Maree Butler, the residuary beneficiaries named in Clause 3(c) of the deceased's Will. 4. Orders that the Plaintiff receive a specified gross sum instead of assessed costs, agreed at $66,800, for her costs of the proceedings, to be paid out of the estate of the deceased. 5. Orders that the Defendant's costs, calculated on the indemnity basis, of the proceedings, be paid or retained, as the case may be, out of the estate of the deceased. 6. Orders that the hearing date listed on 9 July 2020 be vacated. 7. Orders that the Exhibits be returned.

[27]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 July 2020

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