Lodin v Lodin

Family Court proceedings

1. On 28 April 1992, the Deceased applied to the Family Court for orders by way of settlement of property interests. The Deceased proposed that he should pay the respondent $50,000 (later reduced to $38,208 to take account of an overpayment of child support to the respondent). The respondent filed a cross-application seeking an order that the Deceased pay her $150,000.
2. In a judgment delivered on 8 December 1992, Rourke J found that the pool of property available to the parties amounted to $436,000, comprising the Yates Rd Property ($317,500), the Mollymook Property ($90,000), a Toyota Camry ($9,500), a Toyota Celica ($6,000), the respondent's savings ($10,000) and the Deceased's savings ($3,000).
3. Adopting an asset-by-asset approach to the evaluation of contributions in a short marriage, his Honour found that neither had contributed to the property of the other; that they had contributed equally to the acquisition of the Camry; and that their contributions to the welfare of the family were equal. His Honour also found that neither party had any health impairment, but noted that the Deceased had a markedly superior income of $1,200 per week as a qualified professional medical practitioner, while the respondent was a full-time university student who in the past had earned income as a medical receptionist and an interpreter.
4. The primary Judge predicted that following completion of her visual arts course at the University of Western Sydney, the respondent would secure some form of employment. He observed, however, that her ability to earn income was severely restricted by her continued responsibility for two young children, one of whom was a child of the marriage, and that by comparison with the Deceased she was in a markedly inferior economic situation. His Honour also took into account the respondent's eligibility for Austudy, her continuing social welfare payments and the Deceased's commitment to provide ongoing support for his parents who lived in the United States and were in poor health.
5. Rourke J made orders that the Deceased pay the respondent $55,000 and transfer the Camry to her; that the respondent vacate the Yates Rd Property upon payment of the settlement sum; and that the respondent have sole custody of Rebecca, with the Deceased to have reasonable access. The respondent thus retained the Mollymook Property (worth $90,000) and her savings ($10,000). She also received a lump sum of $55,000 and a motor vehicle worth $9,500. She therefore had assets totalling about $164,500, representing approximately 38 per cent of the pool of assets.
6. On 8 February 1993, the respondent moved to the Mollymook Property with her two children. The Deceased resumed occupation of the Yates Rd Property where he lived for the rest of his life. At about this time (early 1993) the Child Support Agency assessed the Deceased as liable to pay child support to the respondent of $7,491 per annum.
7. On 8 June 1993, the Full Court of the Family Court dismissed the respondent's appeal against the orders made by Rourke J.

Subsequent events

1. On the day the appeal was dismissed the respondent threatened the Deceased that if he did not give her another $60,000 she would "destroy his life" and would lodge a complaint with the NSW Health Department Complaints Unit about his conduct in commencing a sexual relationship with her. Nine days later the respondent carried out her threat, alleging in her complaint that the Deceased had engaged in inappropriate sexual conduct with her while she was a patient. The complaint was heard in July 1994 and upheld by the New South Wales Medical Board, which made a finding professional misconduct against the Deceased. He was reprimanded and ordered to take a course in ethics.
2. From June 1993 the respondent denied the Deceased access to Rebecca. The Deceased commenced proceedings in the Family Court in respect of access but eventually abandoned the proceedings. During this period the Deceased's liability to pay child support was increased to $12,130 per annum.
3. On 31 August 1993, the respondent sought leave to commence proceedings out of time in the Common Law Division claiming damages against the Deceased for breach of the professional duties he owed her as a medical practitioner. The proceedings were ultimately discontinued in April 1998, on the basis that each party bore her or his own costs.
4. On 10 September 1993, the respondent complained to the Police that the Deceased possessed firearms and had threatened to kidnap Rebecca (then aged seven). The Police served the Deceased with a summons for an apprehended violence order (AVO) at Camden Hospital. The Deceased described this event as "deeply humiliating" and said that it caused him to resign from Camden Hospital. The application for an AVO was dismissed after a hearing in May 1994.
5. In December 1994, the respondent made allegations to the Police that the Deceased had sexually abused Rebecca. The Police interviewed the Deceased but took no further action on the allegations.
6. In early 1994, the respondent and the children moved from the Mollymook Property to rented accommodation in Sydney.
7. In July 1995 the Deceased applied for a divorce. The decree nisi became absolute on 29 December 1995.
8. In 1996, the Deceased was diagnosed with cancer of the bowel for which he received chemotherapy and radiotherapy. Notwithstanding his illness, the primary Judge found that the Deceased had been "punctilious in compliance with his child support obligations".
9. On 7 May 1996, the respondent successfully sought an increase in the level of child support to $13,000 per annum, in part by reason of Rebecca's enrolment at a private school. This order was extended in 1998, but the respondent's application to increase the amount of child support to $16,000 per annum was rejected.
10. In 1997 the respondent was injured in a motor vehicle accident which caused her to experience neck spasms and back pain for several months.
11. From 1998, Rebecca received a bursary which resulted in a 40 per cent discount on her school fees. The respondent did not disclose the bursary to the Deceased or to the Child Support Agency.
12. In April 1998, the Deceased's solicitors instructed counsel to draft a will for the Deceased. The draft will provided for the whole estate to go to Rebecca provided she attained the age of 30 or married. The draft will also set out the Deceased's reasons for not making any testamentary provision for the respondent. The reasons included the respondent's actions in making: "many and false allegations against me which were proved groundless and made a false complaint against me to the Police alleging that I had sexually abused my daughter and these allegations have caused me great distress". Despite reminders from his solicitors, the Deceased never executed this or any other will.
13. In May 1999, the respondent sold the Mollymook Property for $86,500. In July 1999 she purchased a property at Dalmeny Avenue, Rosebery (Rosebery Property), for $295,000 in the names of Mr Melov and herself as joint tenants. The respondent provided $60,000 of the purchase price, and the balance was borrowed from Westpac. Mr Melov apparently lent his name to the transaction to assist the respondent in obtaining finance. It appears that Mr Melov also provided some financial support to the respondent. On 1 November 2002, pursuant to consent orders made in the Family Court, Mr Melov transferred his interest in the Rosebery Property to the respondent.
14. On 21 July 2000, the respondent suffered whiplash injuries in a second motor vehicle accident. As a result, she experienced protruding discs, headaches, back pain and was barely able to walk for several months. She received a disability support pension in consequence of her injuries and also made a claim for compensation. Her claim was ultimately settled in December 2006 for $72,500 plus costs.
15. Following completion of her secondary education in 2003, Rebecca commenced a Bachelor of Science degree at the University of Sydney in 2004, which she completed at the end of 2006. At the respondent's request, the Deceased agreed to pay child maintenance of $350 per week, indexed at 4 per cent per annum, until Rebecca completed her tertiary education. Consent orders were made in the Family Court to that effect, with which the Deceased fully complied.
16. In about 2004, the Deceased at Rebecca's request provided $28,000 for the purchase of a car. Rebecca undertook to repay this amount when she was in receipt of a sufficient income.
17. On 22 March 2004, the respondent signed a statement in connection with her claim for compensation arising out of the second motor vehicle accident. In the statement she said this: "Before this accident I was a fit healthy and happy person - I now find myself in constant pain and unable to properly or fully enjoy life. The changes are particularly noticeable when it comes to personal relationships. I have neither the enthusiasm nor the physical capacity to enjoy dating. At the time of the accident I was seeing somebody, however that relationship became impossible to sustain as my physical and emotional well-being deteriorated."
18. On 27 March 2008, the respondent was involved in a third motor vehicle accident. She settled her claim for compensation in November 2011 for $90,000 in respect of injuries sustained in this accident.
19. In October 2008, the respondent sold the Rosebery Property. In June 2009 she purchased a property at Fisherman's Paradise for $230,000.
20. In 2008 or 2009 the respondent wrote to the Deceased that unless he paid Rebecca's university fees she would "personally make what is left of [his] wretched life not worth living". She added that if he made her feel guilty for writing in this way he "WILL MOST CERTAINLY FEEL THE WRATH OF ALLAH".
21. The respondent commenced proceedings on 9 June 2015 in the Equity Division, seeking family provision orders under the Succession Act.

Succession Act

1. Chapter 3 of the Succession Act deals with family provision claims. Section 57(1) provides as follows: "The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person: "(a) a person who was the wife or husband of the deceased person at the time of the deceased person's death, (b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death, (c) a child of the deceased person, (d) a former wife or husband of the deceased person, (e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, (f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death." Some terms used in s 57(1) are defined elsewhere, such as "child" (s 57(2)), "close personal relationship" (s 3(3)) and "de facto relationship" (Interpretation Act 1987 (NSW), s 21C).
2. Section 59 of the Succession Act relevantly provides as follows: "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made."
3. Section 60 provides as follows: "(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant … or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant … or of any beneficiary of the deceased person's estate, … (f) any physical, intellectual or mental disability of the applicant …, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, … (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, … (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, … (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
4. Section 61 provides that the Court may disregard the interests of any other person by whom an application for a family provision order may be made, but who has not made an application, provided that the person has received proper notice of the application. However, the Court may not disregard the interests of a beneficiary of the deceased's estate.

Legislative history

1. Chapter 3 of the Succession Act has some curious features. The text of the legislation does not make clear the relationship between s 59(1)(b) (which requires a former spouse of the deceased to show that there are "factors which warrant the making of the application") and s 59(1)(c) (which states in broad language the criteria governing the making of a family provision order). Section 60(1) provides that the Court may have regard to the long list of matters in s 60(2) (including "any other matter the Court considers relevant"), both for the purpose of determining whether the applicant is an "eligible person" and whether a family provision order should be made. It is not clear that any of the matters identified in s 60(2) of the Succession Act are relevant to determining whether a particular applicant satisfies the definition of "eligible person" in s 57(1). [8]
2. The legislative history is of some assistance in understanding these features of the Succession Act and the relationship between the key provisions governing a family provision claim by a former spouse. The history also elucidates some of the differences between the Family Provision Act 1982 (NSW) (FP Act), the predecessor to Chapter 3 of the Succession Act, and the current legislation.
3. The first legislation in New South Wales to provide for family provision claims was the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) (TFM Act). This legislation permitted the Court to make an order for the provision of the widow, husband or children of a deceased person out of that person's estate. [9] The TFM Act did not permit a former spouse to make a claim for family provision.
4. In 1977, very shortly after the enactment of the Family Law Act 1975 (Cth), the New South Wales Law Reform Commission (NSWLRC) reviewed the law relating to family provision in New South Wales. In its report, the NSWLRC gave close consideration to the position of a former spouse of the deceased. It noted that other jurisdictions in Australia and overseas took different approaches to the entitlement of a former spouse of a deceased person to claim family provision from that person's estate. [10] In South Australia, for example, there was no restriction on the entitlement to claim family provision; other States allowed a former spouse to make a claim, but only if he or she was entitled to claim maintenance from the deceased. [11]
5. The NSWLRC recommended that the definition of eligible person, in addition to a widow, widower and child, should include any person: "(i) who was, at any time, wholly or partly dependent upon the deceased person; (ii) who was, at any time, a member of a household of which the deceased person was a member; and (iii) who is a person whom the deceased person ought not, in the opinion of the Court, to have left without adequate provision for his proper maintenance, education or advancement in life." [12]
6. This definition was intended to cover a former spouse without the need to show that he or she was entitled to maintenance from the deceased person. The NSWLRC said that the definition might apply, for example, to a person who was divorced at the date of the deceased's death, but whose application for maintenance had not been determined by that time. [13]
7. The FP Act followed some of the NSWLRC's recommendations, but not its approach to claims by a former spouse of the deceased. Section 6(1)(c) of the FP Act included "a former wife or husband of the deceased person" within the definition of "eligible person". However, s 9(1) of the FP Act, the precursor to s 59(1)(b) of the Succession Act, provided that where an application for family provision was made by certain categories of "eligible persons", including a former spouse of the deceased, the Court: "shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors."
8. Section 33(2) of the FP Act created a disincentive against unmeritorious family provision claims by a former spouse. It provided that a former spouse making a family provision application was not to receive an order that costs be paid out of the estate unless the former spouse's application succeeded or there were "special circumstances which [made] it just and equitable" to make such an order.
9. The second reading speech for the Family Provision Bill 1982 stated that the main reason for including divorced spouses in the legislation was to "overcome the serious injustices now occurring where a party to a marriage dies soon after the divorce and before a property settlement is made under the Family Law Act". [14] The Minister assured Parliament that there was no danger of a flood of claims from divorced spouses, for three reasons. First, cl 9(1) of the Bill required the court to find that there were factors warranting the application. Secondly, in the usual case a divorced spouse would have been party to a financial settlement in the divorce proceedings and this "will have determined once and for all the financial obligations of the parties". Thirdly, divorced spouses already could apply for family provision orders under the law of all other Australian States, although the legislation imposed various conditions. [15]
10. The drafting of the FP Act, in particular s 9(1), did not attract universal approbation. In Re Fulop, [16] McLelland J commented that the "effect and utility" of s 9(1) of the FP Act were obscure. His Honour characterised the subsection as "poorly conceived and clumsily expressed". Nonetheless much of the language survives in s 59(1)(b) of the Succession Act.
11. In 1991, the Standing Committee of Attorneys General (SCAG) approved the development of uniform succession laws in Australia. The Queensland Law Reform Commission (QLRC) was asked to co-ordinate the project and in 1997 presented a report to SCAG. [17] Except for two categories of people with "automatic" eligibility (children and spouses of the deceased at the time of their death), the QLRC favoured an approach where eligibility to apply for family provision turned "not on membership of some arbitrary class of persons" but on the establishment of a "special responsibility" on the part of the deceased towards the applicant. [18] The decision to restrict automatic eligibility to current spouses of the deceased "was not the result of a particular view that former spouses … should not be eligible for family provision", but reflected the Committee's desire to keep the scheme simple, and the fact that the "special responsibility" provisions would enable all people with a legitimate claim to apply for family provision. [19] The drafting instructions included in the report specified a number of matters to be taken into account in determining whether the deceased had such a special responsibility.
12. In July 2004, the QLRC prepared a Supplementary Report on Family Provision. [20] The Supplementary Report proposed that uniform legislation should specifically permit de facto partners of the deceased to apply for family provision. No further consideration was given to the position of former spouses.
13. The NSWLRC reported in May 2005 on the draft model provisions presented to SCAG by the QLRC in 2004. [21] The NSWLRC accepted the approach proposed in the model provisions, whereby a person could apply for a family provision order if the "deceased person owed a responsibility to [the person to] provide maintenance, education or advancement in life". [22] The draft legislation specified fourteen matters that could be considered by the court in determining whether the deceased person had a responsibility of the relevant kind to the claimant. [23] The same matters could be considered in determining whether to make a family provision order and, if so, the nature of any order that should be made.
14. The Succession Act as originally enacted [24] did not deal with family provision orders and therefore the FP Act remained in force. The provisions now in Chapter 3 of the Succession Act were introduced by the Succession Amendment (Family Provision) Act 2008 (NSW) (Amendment Act 2008), which came into force on 1 March 2009. [25] The Amendment Act 2008 repealed the FP Act.
15. The new legislation did not follow the model bill proposed by the QLRC in relation to a family provision claim made by a person other than the spouse, de facto partner or non-adult child of the deceased. The second reading speech for the Succession Amendment (Family Provision) Bill 2008 explained that some changes had been made to the model bill "to take into account the specific policy concerns of the New South Wales Government, and suggestions made by an expert committee". [26] It appears that the expert committee, which included two Supreme Court Judges and representatives of the Bar Association and Law Society, preferred the legislation to follow more closely the provisions of the FP Act dealing with claims by a former spouse of the deceased.
16. The relevant provisions of Chapter 3 of the Succession Act have been set out. [27] The significant differences for present purposes between the Succession Act and the FP Act are as follows:

• Section 9(1) of the FP Act provided that the Court first had to determine whether there were factors warranting the making of the application and directed the Court not to proceed with the determination of the application unless satisfied that there were those factors. Section 59(1)(b) of the Succession Act, although requiring the Court to be satisfied that there are factors warranting the application, does not contain equivalent language.
• Section 9(3) of the FP Act identified four matters that the Court could take into account in determining what provision, if any, ought to be made out of the estate in favour of an eligible person (including a former spouse). The FP Act did not identify the matters that could be taken into account in determining whether there were factors warranting the making of an application, other than the reference in s 9(1) to "all the circumstances of the case (whether past or present)". Section 60(1) of the Succession Act says that the sixteen matters specified in s 60(2) may be taken into account both in determining whether the applicant is an "eligible person" and in deciding whether to make a family provision order and the nature of any such order. As has been noted, it is not clear why the matters in s 60(2) are relevant to determining whether an applicant is an "eligible person".
• There is some overlap between the sixteen matters specified in s 60(2) of the Succession Act and the four matters specified in s 9(3) of the FP Act. However, the drafting of s 60(2) follows closely the model legislation proposed by the QLRC and adopted by the NSWLRC. [28]
• The Succession Act does not have a costs provision equivalent to s 33(2) of the FP Act. [29]

Eligible persons

1. The primary Judge noted that the only eligible person other than the respondent and Rebecca was Alana. Since Alana had not made a claim under the Succession Act the Court was at liberty to disregard her interests. [30]

The respondent's circumstances

1. His Honour made findings concerning the respondent as follows: "[33] … [the respondent] has not been in full-time employment since 1997, although between 2004 and 2007 she worked 2 hours per day, 3 days per week as a receptionist in a medical practice. There is no realistic prospect of her resuming remunerative employment. [34] On 31 July 2015, [the respondent] sold Fisherman's Paradise for $340,000. The sale was completed in September 2015. After discharging the mortgage of $45,000 and paying costs, she received about $285,000, out of which she purchased a motor vehicle for $30,000. She retains from the proceeds $253,000 as cash on deposit. She also has shares in the Commonwealth Bank worth $40,000; a 2015 Jeep Patriot motor vehicle worth $30,000. She has superannuation of only about $300, and a HECS debt of $11,855. [35] She currently resides in a one-bedroom unit in Katoomba, which she rents for $269 per week. The disability support pension, of approximately $20,000 per annum, is her main current source of income; in addition she receives interest on her deposit. She estimates her expenses (presumably including the rent) to be about $30,000 per annum (which is about $600 per week). [36] She remains diabetic, and has chronic pain and restrictions from her spinal injuries suffered in the 2000 motor vehicle accident. … She requires surgery for a bunion on her left foot (estimated $10,000), and for spinal stenosis in her lower spine (estimated $10,000 to $20,000). She also requires some dental work ($6,000). She has also been advised to purchase exercise equipment ($5,000). [37] She lives alone, and is not in any relationship. She has fraught relationships. She is estranged from [Rebecca], who does not speak with or see her, and she has a limited relationship with Alana. … [38] [The respondent] wishes to purchase a residence in the Blue Mountains area."

Rebecca's circumstances

1. The primary Judge found that although Rebecca resided with the Deceased until he left Bangor in 1991, she resided for almost all of her childhood with the respondent. His Honour also found that: [31] "From when they returned from Mollymook to Sydney in 1994, [Rebecca] had contact with the [D]eceased about monthly, until she commenced high school (which would have been in or about 1998). Thereafter she had contact with the [D]eceased perhaps between two and four times annually until she was between 13 and 15, and thereafter contact ceased. She now attributes this - and other acts of hostility by her towards the [D]eceased - in part to the influence of her mother … Until she attained about 20 years of age, she sometimes sent him letters or presents on Father's Day, his birthday or Christmas, but ceased this because there was no response."
2. Rebecca left her mother's home in 2007 and thereafter lived with her partner. After 2009, Rebecca had little contact with the respondent. [32] Rebecca had not seen her father for 13 years prior to his death. [33]
3. At the date of the trial Rebecca was employed as a research and development engineer earning $1,436 per week gross. Her partner earned a similar amount. They had combined assets of about $200,000. [34]

Principles

1. The primary Judge referred at length to the authorities construing s 59(1)(b) of the Succession Act, in particular the decision of this Court in Dijkhuijs. His Honour drew the following conclusion: [35] "… while the existence of a final matrimonial financial settlement is an important factor, it is not conclusive. What emerges from the cases to which reference has been made is that there will be factors warranting the making of a claim by a divorced former spouse, even where there has been a matrimonial property settlement, if at the date of the hearing of the family provision application there remained an undischarged moral obligation to the applicant." His Honour also observed that the decision in Dijkhuijs: "effectively rejected the proposition a post-matrimonial settlement change in the circumstances of one or both parties could not provide circumstances warranting the making of a family provision application". [36]

The matrimonial settlement

1. The primary Judge considered but rejected the respondent's contention that the Deceased had been guilty of fraud or non-disclosure of income in the Family Court proceedings. His Honour was therefore not persuaded that the Deceased's conduct in the proceedings was a factor warranting the making of the respondent's family provision claim. [37]
2. In the course of rejecting the respondent's claim of fraud the primary Judge observed that the orders made by Rourke J involved an adjustment of nearly 15 per cent of the pool which, by the standards of 1992, was a large adjustment for the factors identified in s 75(2) of the Family Law Act 1975 (Cth) (Family Law Act). [38]

Atonement

1. The primary Judge next considered and rejected the respondent's submission that the Deceased had a testamentary obligation to "atone" for his professional misconduct in engaging in an improper sexual relationship with her. [39]

Other factors

1. In determining whether there were factors that justified concluding that the Deceased had a moral obligation to make a testamentary provision for the respondent his Honour acknowledged that this was "not an easy case" and that judicial minds might differ. He accepted that there were factors telling against regarding the respondent as a person who would be regarded as a natural object of testamentary recognition by the Deceased: [40] "The relationship between the parties ended nigh on a quarter of a century ago. There has been a final matrimonial financial settlement, in which the disparity of earning capacity, and [the respondent's] ongoing care responsibility for [Rebecca], were taken into account, which would ordinarily be regarded as providing a "clean break" with no ongoing obligations except in respect of child support, and the [D]eceased punctiliously performed his child support obligations. [The respondent's] attitude to the [D]eceased since the end of their relationship has been one of relentless hostility, and she carried into effect as best she could her stated aim of making his life a misery, pursuing him and his resources in every way she could - through reviews of child support, professional discipline, and actions for damages. Even if she followed up the "wrath of Allah" letter with the apology to which she referred, it could hardly expunge the years of her relentless persecution of the [D]eceased."
2. His Honour considered that there were four factors justifying a finding that there were factors which warranted the respondent making an application for a family provision order.
3. First, there was some evidence, albeit dated, that "the marriage and its breakdown had an unusually enduring impact on [the respondent]". [41] His Honour quoted extracts from reports prepared by two psychiatrists, Dr Robertson (9 August 1993) and Dr Quadrio (6 July 1994). He then said that: [42] "While [Rebecca] rightly submits that there was no psychiatric evidence of any currency, and the reports to which I have referred date from 1994 and speak only of [the respondent's] condition at that time and not now, they provide some support for the view that the relationship, marriage and its sequelae had unusual and long-lasting consequences for [the respondent]. [The respondent's] conduct towards the [D]eceased from 1993 onwards, her fraught relationships with others, including her daughters, and her daughters' attitudes towards her, all manifest aspects of what Dr Quadrio explained … ."
4. Secondly, the predictions made by Rourke J in the Family Court proceedings had not been borne out by events: [43] "Although she did not then have any obvious health impediment, she bore the psychological scars of the relationship, to which Dr Robertson and Dr Quadrio referred, and her health deteriorated, including through three motor vehicle accidents in 1997, 2000 and 2008. While [Rourke J] acknowledged that her earning capacity would be severely restricted by her care responsibility for Alana and [Rebecca], he anticipated that she would complete her university studies and secure some form of employment, her care responsibility for Rebecca constrained her ability to do so until about 2000 when Rebecca was in year 9, whereupon a motor vehicle accident effectively prevented her from obtaining regular remunerative employment thereafter."
5. Thirdly, following the property settlement the Deceased prospered and accumulated substantial assets. His ability to do this was facilitated by the respondent's assumption of responsibility for Rebecca from the age of 5. It was true that these matters had been taken into account by Rourke J and the Deceased had been "punctilious" in paying child support. Nonetheless: [44] "The [D]eceased's compliance with his child support obligations does not detract from the proposition that by assuming (and thus relieving him of) the obligation to care for Rebecca, [the respondent] freed him to practice his profession, generate income and accumulate the property which ultimately became his estate, and thereby made an indirect contribution to the acquisition, conservation and improvement of the estate of the [D]eceased, within Succession Act, s 60(2)(h) …"
6. Fourthly: "… the [D]eceased's estate comprises ample resources to make adequate provision for [the respondent], and still to provide a most substantial endowment for [Rebecca] - the daughter who [the respondent] raised. And there is something unbecoming about an arrangement under which [the respondent] is left in circumstances of considerable need, reliant on a social security pension, while the daughter whom she raised inherits in excess of $5 million." [45]
7. One feature of the case was that "the relationship, marriage and its breakdown ha[d] had a serious impact on the rest of [the respondent's] life". His Honour accepted that the respondent's then current circumstances were not wholly attributable to her relationship with the Deceased, their marriage and its fallout. On the contrary, other factors, including her failed first marriage and the motor vehicle accidents had contributed. The accidents had deprived her of the opportunity of establishing herself in remunerative employment just as Rebecca was attaining an age when it was realistic for the respondent to re-enter the workforce. Even so: [46] "her relationship with the [D]eceased, and its sequelae, have contributed significantly to her current circumstances."
8. The primary Judge summarised his conclusion as follows: [47] "… the combination of the unusual and enduring impact of the relationship and marriage on [the respondent], her care responsibility for [Rebecca] for 15 years after the matrimonial property settlement and associated indirect contribution to the [D]eceased's estate, the respective post-divorce deterioration in her circumstances and great improvement in those of the [D]eceased, the relative paucity of the matrimonial estate at the time of the property settlement compared to the amplitude of resources now available, and her current circumstances of need which are in part attributable to her relationship and marriage with the [D]eceased, and where the only other claim on his testamentary bounty is that of [Rebecca] for whom ample will remain after making proper provision for [the respondent], amount to circumstances which made [the respondent], at the time of the [D]eceased's death, a person who ought to have been an object of testamentary recognition by him, and thus constitute circumstances warranting the making of her claim."
9. His Honour reached this conclusion despite acknowledging that the respondent provided misleading information to the Child Support Agency in 1992, failed to disclose Rebecca's bursary to the Deceased or the Child Support Agency and engaged in "post-divorce persecution of the [D]eceased (which must have made his life a misery)". [48] His Honour thought the case was similar to Wentworth v Wentworth, [49] where a daughter's extreme hostility and estrangement from her father was held not to extinguish the testator's duty to provide for her because the daughter's conduct was the product of her psychological disability. The respondent's conduct towards the Deceased, her "persecution of him through multiple proceedings in diverse forums" and her propensity for conflict with others could be attributed to a similar "disability". [50]

The Order

1. In his Honour's view, the same considerations that warranted the respondent making her claim established that she had been left with inadequate provision for her proper maintenance and advancement in life. [51] His Honour expressed his conclusions as follows: [52] "[99] The unusual and enduring impact of the relationship and marriage with the [D]eceased on [the respondent], and its contribution to her current circumstances of need; the respective post-divorce deterioration in her circumstances, and great improvement in those of the [D]eceased; the impact of her care responsibility for [Rebecca], for 15 years after the matrimonial property settlement, on her earning capacity, and her corresponding indirect contribution to the [D]eceased's estate; and the relative paucity of the matrimonial estate at the time of the property settlement, compared to the amplitude of resources now available; all in circumstances where the only other claim on the [D]eceased's testamentary bounty was that of [Rebecca], for whom ample estate will remain after making proper provision for [the respondent]; together amount to circumstances which made [the respondent], at the time of the [D]eceased's death, a person who ought to have been an object of his testamentary recognition, and thus constitute circumstances warranting the making of her claim. [100] In circumstances where no provision was made for her, those same matters which constitute factors warranting the making of her claim, also lead to the conclusion that [the respondent] has been left with inadequate provision for her proper maintenance and advancement in life."
2. The primary Judge made an order in the respondent's favour for the payment of $750,000 out of the estate on the basis that:

• $300,000 over and above her savings would enable her to buy a house in the Blue Mountains or elsewhere;
• a capital sum of $400,000 could enable her to meet post-purchase expenses of $450 per week; and
• $50,000 would cover her requirements for medical treatment and a small fund for contingencies. [53]

1. His Honour ordered that the costs of both parties be paid out of the estate.

Re Fulop

1. In Re Fulop, McLelland J construed s 9(1) of the FP Act, the forerunner to s 59(1)(b) of the Succession Act. His Honour stated the following propositions: [54] (i) The question posed by s 9(1) of the FP Act cannot be resolved until all admissible evidence relevant to the issue of whether there are factors warranting the application has been tendered. Despite s 9(1) using language that apparently contemplates determining the question as a preliminary issue, ordinarily it is impracticable to isolate the evidence bearing on that issue from other evidence in the case. (ii) Section 9(1) is premised on a distinction between "factors which warrant the making of the application" and the circumstances which justify the making of the family provision order. Otherwise the subsection would be pointless. This means that in a particular case an applicant might establish that there are factors warranting the application, yet the court might decline to make a family provision order in the applicant's favour. (iii) The legislation also requires a distinction to be drawn between "eligible applicants" who do not have to satisfy s 9(1) (a spouse, de facto partner or child of the deceased) and those who do (such as a former spouse or grandchild). The difference is that the former are generally regarded as natural objects of testamentary recognition by a deceased, while the latter are not generally so regarded. Accordingly, the "factors" referred to in s 9(1) of the FP Act are those that give an eligible person in the second category "the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased".
2. These propositions have been accepted in subsequent cases arising under the FP Act, including cases in which a former spouse of the deceased claimed a family provision order. [55] They have also been accepted as applicable to a claim by a former spouse under the Succession Act. Thus in Sassoon v Rose, [56] Meagher JA said that the trial Judge in that case correctly identified the principles stated in Re Fulop as the basis for determining whether there were factors warranting the making of the application. [57]

The Succession Act

1. In view of the authorities it is not surprising that the parties in the present case proceeded on the basis that the principles stated in Re Fulop in relation to s 9(1) of the FP Act apply equally to s 59(1)(b) of the Succession Act, despite the differences in statutory language. Nonetheless some observations should be made about the construction of s 59(1)(b) and s 60 of the Succession Act.

A preliminary question?

1. As has been pointed out, s 9(1) of the FP Act clearly contemplated that a former spouse of the deceased had to satisfy a precondition before the Court could proceed to determine whether it should make a family provision order. Section 59(1)(b) of the Succession Act does not contain the explicit requirement in s 9(1) of the FP Act that an applicant "first" demonstrate that there are factors warranting the making of the application. Section 59(1)(b) also removes the direction to the Court contained in s 9(1) of the FP Act not to proceed with the application unless there are such factors. Section 59(1) now simply provides that the Court may make a family provision order in favour of a former spouse if three conditions are satisfied, one of which is that the Court is satisfied that, having regard to all the circumstances of the case, there are factors which warrant the making of the application.
2. The approach adopted in Re Fulop is, in general, to defer a decision as to whether there are factors that warrant the making of the application until all the evidence is before the Court. The language used in s 9(1) of the FP Act contemplated the possibility that the Court might deal with this issue as a threshold or preliminary question. It is not necessary to decide whether the language of s 59(1)(b) of the Succession Act precludes determining this issue as a separate question. It is enough to observe that the legislation no longer expressly contemplates that the issue might be decided in advance of other issues in the case.

Relationship between s 59(1) and s 60

1. The FP Act did not specify the matters that the Court could take into account in determining whether there were factors warranting the making of the application other than the reference to "all the circumstances of the case". Similarly, the Succession Act does not expressly specify the matters that the Court can take into account in making the determination required by s 59(1)(b). However, s 60(1) says that the Court may have regard to the matters set out in s 60(2) for the purpose of determining whether the applicant is an "eligible person". It has already been pointed out that this language is curious since the matters set out in s 60(2) seem to have no bearing on whether an applicant falls within the definition of "eligible person".
2. When ss 59(1)(b) and 60 of the Succession Act are read together they should be understood to allow the Court to have regard to the matters in s 60(2) when determining whether there are factors that warrant the making of the application. The reference in s 59(1)(b) to "all the circumstances of the case (whether past or present)" is apt to enable the Court to take into account, for the purposes of the determination under s 59(1)(b), any of the matters identified in s 60(2), provided that they are relevant to the issue to be determined. What is relevant in a particular case will depend on the particular circumstances.
3. Section 60(1)(b) of the Succession Act provides that the Court may have regard to the matters set out in s 60(2) for the purpose of determining whether to make a family provision order and the nature of any such order. However, this does not mean that the issues for determination raised by s 59(1)(b) and s 59(1)(c) of the Succession Act are identical. Section 59(1)(b) requires the Court to consider whether certain "eligible persons", such as a former spouse or a grandchild of the deceased, have shown that there are factors warranting the making of the application. Only if the person satisfies that requirement can the Court make a family provision order in accordance with the criteria laid down by s 59(1)(c). As McLelland J in Re Fulop remarked of s 9(1) of the FP Act, there would be no point in requiring an eligible person to satisfy s 59(1)(b) of the Succession Act if it is co-extensive with s 59(1)(c).
4. Consistently with the analysis in Re Fulop, the starting point for applying of s 59(1)(b) of the Succession Act is that an eligible person such as a former spouse or grandchild of the deceased is not normally regarded as a natural object of testamentary recognition by the deceased. [58] In order to satisfy s 59(1)(b) an applicant must therefore establish that there are circumstances that justify regarding him or her as a natural object of testamentary recognition by the deceased. Those circumstances must go beyond the bare fact of a familial (or, in the case of a former spouse, a previous familial) relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant.
5. These propositions were accepted by the Court in Chapple v Wilcox, [59] a case involving a family provision claim by an estranged but impecunious grandson of the deceased testator, whose estate included extensive rural landholdings. The trial Judge in Chapple v Wilcox made a family provision order in favour of the grandchild. The executrix appealed against a family provision order made in favour of the grandson on the ground that the trial Judge erred in finding that the grandson had been left without adequate provision for his proper maintenance or advancement in life. [60] However two members of the Court made a point of observing that the trial Judge also erred in concluding that there were sufficient factors to warrant the making of the application for the purposes of s 59(1)(b) of the Succession Act.
6. Basten JA, with whom Gleeson JA agreed, recognised that there may be circumstances in which widely held community standards might expect a grandfather to make provision for his grandchildren. This could be the case, for example, if the grandchildren maintained a close relationship with the grandfather and the parents were unwilling or unable to provide for the grandchildren. His Honour said that the Court would take into account such matters as whether the grandchildren were adults (as they were in Chapple v Wilcox) and the nature and extent of the estate. The "critical error" of the trial Judge was to fail to take into account these matters. Once they were taken into account it was "not possible to identify any social, domestic or moral obligation on the part of the testator to provide for the claimant". [61]
7. The inquiry required by s 59(1)(c) of the Succession Act is different from that required by s 59(1)(b). The starting point for the inquiry under s 59(1)(c) is that the applicant is a person who can ordinarily be regarded as a natural object of the deceased's testamentary recognition and thus is entitled to have his or her claim for a family provision order considered by the Court. The claim is then assessed in accordance with the familiar two step approach: [62] "The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the 'jurisdictional question'."
8. The "jurisdictional stage" requires consideration of matters such as: [63] "… 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 circumstances and needs of other beneficiaries or potential beneficiaries."
9. As McLelland J pointed out in Re Fulop, a finding that a claimant has shown that there are factors warranting the application, thus satisfying s 59(1)(b) of the Succession Act, does not necessarily mean that the claimant's application for a family provision order must succeed. Even though the claimant can be regarded as a natural object of the deceased's testamentary recognition, there may be many reasons why the application fails. For example, the estate may be relatively small and there may be other eligible persons whose needs are greater than the claimant's or whose relationship with the deceased was closer and more mutually supportive. In deciding whether to make a family provision order the Court, depending on the circumstances, may take into account matters specified in s 60(2) of the Succession Act that have little or no bearing on the question posed by s 59(1)(b).

Claim by a former spouse

1. The question arises as to the approach that should be taken in deciding whether the former spouse of a deceased person satisfies s 59(1)(b) of the Succession Act by establishing that there are factors warranting the making of the application. The issue was given close attention in Dijkhuijs, which involved an application under the FP Act for family provision by the former wife of a deceased testator.

Dijkhuijs

1. The following propositions can be derived from Dijkhuijs (bearing in mind that it was decided under the FP Act): (i) The legislative history cannot determine the meaning of the legislation. The broad language used by Parliament to achieve novel reforms must be given its "full effect". Thus although the second reading speech referred specifically to the case of a divorced wife whose former husband died before any property settlement could be finalised, the legislation cannot be confined to such cases. [64] (ii) The former spouse need not demonstrate that there are "special factors" which warrant making the application. The legislation requires only that in all the circumstances of the case there are factors warranting the making of the application. [65] (iii) While in most cases a final property settlement in the Family Court will be seen as terminating any moral claim of a former spouse to provision from the estate of the deceased, [66] that policy must accommodate itself to the reforming provisions of the legislation. These expressly contemplate that a former spouse may be entitled to make a claim for family provision. Thus the public policy in favour of the finality of property settlements has to compete "in all the circumstances of the case" with the claims of the former spouse. [67] Paramountcy should not always be given to the policy of a "clean break" over other factors having regard to the statutory instruction to take account of all the circumstances. [68] (iv) The facts of each relationship are unique and the circumstances which may give rise to a family provision claim will vary from case to case. There are dangers in attempting to limit the cases which may warrant the making of an application to "preconceived classes or categories". [69] (v) One factor which is obviously relevant and which may in a particular case warrant the making of the application is the past relationship of the parties. [70]
2. Four observations should be made about Dijkhuijs. First, Kirby P emphasised that s 33(2) of the FP Act (limiting the former spouses' entitlement to costs out of the estate if the application failed) constituted "an obstacle likely to inhibit the bringing of meritless claims". [71] As has been seen, the Succession Act contains no equivalent to s 33(2) of the FP Act, although it is not likely that a person bringing a meritless claim would be awarded costs out of the estate. Given the similarity in language between s 9(1) of the FP Act and s 59(1)(b) of the Succession Act, the absence of an equivalent costs provision in the Succession Act does not provide a sound basis for departing from the approach endorsed by Dijkhuijs.
3. Secondly, Dijkhuijs held that a number of limitations that the trial Judge had read into s 9(1) of the FP Act were not supported by the statutory language. However, the judgments do not suggest that a former wife will satisfy s 59(1)(b) of the Succession Act as a matter of course or simply by relying on the fact of the previous relationship with the deceased. Nor do the judgments suggest that the fact that the former spouse has unmet financial needs at the date of the deceased's death or the hearing is a basis, of itself, for finding that there are factors warranting the making of a family provision application.
4. Thirdly, the facts of Dijkhuijs were different from those of the present case. The claimant had been married to the deceased for 24 years and there were three children of the marriage. The deceased died less than two years after the Family Court made an order for the division of the property. During that period the deceased received a superannuation payment very much greater than the value attributed to his entitlement in the Family Court proceedings. This "windfall" (as it was described) came about because the deceased benefited from a very large increase in his salary very shortly after the Family Court proceedings were concluded. Because of the multiplier used to calculate entitlements to superannuation, the deceased's payout turned out to be much larger than had been assumed in the proceedings.
5. Fourthly, the Court in Dijkhuijs did not decide that the former wife (the applicant in the case) had established that there were factors warranting the making of the application. Because the Court held that the trial Judge erred in his approach to that question, the proceedings were remitted for rehearing. The files of the Supreme Court proceedings do not reveal the outcome of the former wife's claim beyond recording that the proceedings were stood over generally with liberty to apply.

Some propositions

1. It follows from Dijkhuijs that care must be taken not to impose rigid constraints on the circumstances that might constitute factors warranting a former spouse of the deceased making an application for family provision from the estate. Nonetheless it is difficult to see how a former spouse could satisfy s 59(1)(b) of the Succession Act simply by relying on the existence of the marriage and the fact that he or she now has unmet financial needs. The reason is that these factors alone do not demonstrate that the deceased had a social, domestic or moral obligation to make testamentary provision for the former spouse. The position is unlikely to be different even if the estate is relatively large. Something more is ordinarily needed for the claimant to show that he or she was a natural object of testamentary recognition.
2. What more a claimant must show cannot be defined with precision since all the circumstances have to be taken into account. Some cases may be comparatively straightforward. An example commonly given is where the claimant and the deceased, although divorced, had not reached a financial settlement prior to the deceased's death. [72] Other cases, such as Dijkhuijs, may involve a considerably more difficult evaluative judgment.
3. One matter of significance is whether the claimant and deceased finalised their financial relationship at the time of the divorce or subsequently, whether by agreement or by means of court orders (as occurred in the present case after contested hearings). As Dijkhuijs shows, a final property settlement is not necessarily an absolute bar to a family provision application being considered on its merits, but in most cases such a settlement, if otherwise unimpeachable, is likely to terminate any obligation on the deceased to make testamentary provision for his or her former spouse.
4. Another significant matter is likely to be the nature of the relationship between the claimant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a moral obligation on the deceased to make testamentary provision for the claimant. In this respect considerable care needs to be taken to prevent a family provision claim becoming a forum for litigating questions of matrimonial fault long since removed from family law. [73] Nonetheless the conduct of the deceased may be relevant to the question posed by s 59(1)(b) of the Succession Act if, for example, physical or sexual abuse during the marriage (or later) has caused the claimant to suffer a physical or psychological disability impairing his or her capacity to earn an adequate income. [74]

The Court's role

1. The appellant's written submissions acknowledged that the primary Judge's finding that the respondent had established factors warranting the making of her application was the "equivalent" of a discretionary judgment. Thus the appellant accepted that the finding is subject to the constraints on the review of the exercise of discretionary power identified in House v The King, [75] and restated in cases such as Norbis v Norbis. [76]
2. The role of the Court in reviewing a determination that a claimant has satisfied s 59(1)(b) of the Succession Act was explained in Sassoon v Rose, a case involving a claim by a former wife of the deceased. Meagher JA said that the determination under s 59(1)(b): [77] "involved an evaluative judgment requiring consideration of the extent of the deceased's estate and the respective circumstances, needs and claims of Ms Sassoon and the beneficiaries named in the will, taking into account community standards and expectations of those making testamentary dispositions. A review of the primary judge's determination of those questions on appeal to this Court is to be undertaken according to the principles applicable to the exercise of a discretionary power: Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 212; Mulcahy v Weldon [2002] NSWCA 206 at [24]; Foley v Ellis [2008] NSWCA 288 at [5], [83]. Accordingly, on her application for leave to appeal Ms Sassoon must identify an arguable error of law or mistake of fact or other error such as the taking into account of an irrelevant consideration or the disregarding of a relevant consideration."
3. This passage was cited with approval by this Court in Yee v Yee. [78] In that case, the Court also cited the observations of Kirby P in Golosky v Golosky [79] that: "Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged."

Appellant's Submissions

1. Despite identifying the need to establish an error that would vitiate the primary Judge's evaluative judgment, the appellant's written submissions essentially repeated at considerable length the arguments advanced to the primary Judge. Consistently with the grounds of appeal, the appellant's principal contention was that the primary Judge had made a decision that was so unreasonable that it must have been infected by error.
2. The appellant submitted that the primary Judge's decision was "unrealistic and the product of judicial overreach" and set a "dangerous precedent" in its reliance on outdated medical reports. This was a case, so it was argued, where the Deceased had simply done better for himself over many years as the result of prudent decisions and hard work. By contrast, the respondent had made "poor lifestyle choices and expend[ed] significant sums of [her] property proceeds on unsuccessful litigation".
3. Mr Ellison SC, who appeared with Mr Carr for the appellant, refined the argument somewhat in the course of oral argument. Mr Ellison submitted that there were two major errors in the reasons of the primary Judge that warranted the intervention of this Court.
4. First, it was submitted that the primary Judge, although stating the relevant principles correctly, misapplied them. The reference in the Primary Judgment to the "unbecoming" arrangement whereby the respondent was left in need and Rebecca received a legacy of over $5 million [80] showed that his Honour considered that "moral opprobrium" attached to the size of the estate. This, so it was argued, was a clear error of the kind identified in House v The King.
5. Secondly, Mr Ellison challenged the primary Judge's finding that the relationship between the respondent and the conduct of the Deceased towards her had a continuing impact on the rest of her life, to the point where her "persecution" of the Deceased could be seen as the manifestation of a "disability". [81] Mr Ellison submitted that the finding was based on a misuse or misapprehension of the psychiatric evidence relied and that the primary Judge failed to have due regard to his own findings that other factors, for which the Deceased was not responsible, caused the respondent's difficulties.

Respondent's Submissions

1. The respondent submitted that the primary Judge correctly stated and applied the relevant principles in determining that there were factors warranting her making a family provision application. According to Mr Bates, who appeared for the respondent, his Honour correctly recognised that the policy objectives of the Family Law Act were different from those of the Succession Act. His Honour was therefore correct to reject the proposition that the Family Court orders in the present case precluded the respondent's contention that she was able to satisfy the requirements of s 59(1)(b) of the Succession Act.
2. Mr Bates submitted that the primary Judge was justified in giving significant weight to the respondent's indirect contribution to the Deceased's estate by raising Rebecca "all by herself". Mr Bates relied on the "minimal involvement" of the Deceased in Rebecca's life and the fact that they had not seen each other for about 14 years before his death (although some letters passed between them shortly before the Deceased's death).
3. Mr Bates supported what he said were the primary Judge's findings that the Deceased's own conduct and the breakdown of the marriage caused the respondent to become disabled and mitigated the "characterisation or effect" of her behaviour towards the Deceased. Mr Bates submitted that the primary Judge was entitled to rely on the reports of the two psychiatrists, despite the fact that they had been prepared many years prior to the hearing. They had opined that the respondent had developed a psychiatric illness that traumatised her and disabled her mental functioning. Most of the respondent's conduct directed towards the Deceased occurred at about the time covered by the psychiatrists' reports.

The "unbecoming" contention

1. The passage relied on by Mr Ellison suggests that the primary Judge considered that an important factor in the respondent's favour, in determining whether she satisfied s 59(1)(b) of the Succession Act, was that it was wrong for the Deceased to leave the whole of his estate to his only daughter and to ignore his former wife. His Honour appears to have accepted that, regardless of whether there were other factors imposing a moral obligation on the Deceased to make testamentary provision for the respondent, the size of Rebecca's entitlement under the laws of intestacy was of itself a factor warranting the respondent making an application for family provision. This interpretation of the Primary Judgment is supported by other references in the amplitude of the estate and the respondent's "circumstances of need", [82] although these are perhaps more equivocal.
2. The difficulty with the approach adopted by his Honour is that it assumes that a deceased person has a moral responsibility to make testamentary provision for a former spouse simply because the estate is large and the sole beneficiary of the estate under the will or on an intestacy is a member of the deceased's family for whom the former spouse had some responsibility. The difficulty is exacerbated when the assumption is made in a case where the parties reached a final resolution of their financial claims after contested hearings many years prior to the Deceased's death.
3. The fact that the former spouse was responsible for raising the child of the parties cannot, of itself, alter the position. It may be different if, for example, a finding is made that the deceased failed to comply with his or her obligations to provide financial support for the child, thereby placing the burden wholly or very largely on the former spouse. But that is not this case. The primary Judge found that the Deceased had been "punctilious" in complying with his obligation to pay not insubstantial amounts of child support. His Honour also found that the Deceased had made other financial contributions for Rebecca's benefit.
4. No doubt members of the Australian community would have widely divergent views as to whether it is fair for the entirety of a large estate to pass to an adult child of the deceased person to the exclusion of the former spouse who has raised the parties' only child (albeit with financial assistance from the deceased). The fact that some may think the outcome unfair (if it be a fact) does not establish that there are factors which warrant the former spouse making a family provision application.
5. The issue before the primary Judge was whether there were factors warranting the respondent making an application for provision out of the estate of the Deceased. Whether or not the passing of the whole estate to Rebecca was "unbecoming" was not material to the resolution of that issue. It is necessary to bear in mind that appellate courts must exercise restraint in disturbing the evaluative determinations of trial judges on questions such as whether there are factors warranting the making of an application. Nonetheless, the approach taken by the primary Judge to the resolution of this question relied on an irrelevant consideration. That error is sufficient to vitiate his Honour's determination under s 59(1)(b) of the Succession Act.

Impact of the relationship

1. Another key element in the reasoning of the primary Judge was that the relationship between the parties and the conduct of the Deceased towards the respondent were responsible to some extent for her straitened circumstances at the date of the trial and even for her "persecution" of the Deceased after the breakdown of the marriage. His Honour referred to this aspect of the case at a number of points in the Primary Judgment. He said that:

• there was some evidence that "the marriage and its breakdown had an unusually enduring impact on [the respondent]"; [83]
• the psychiatrist's reports dating from 1994 provided "some support for the view that the relationship, marriage and its sequelae had unusual and long-lasting consequences for [the respondent]"; [84]
• the respondent's conduct towards the Deceased from 1993 and her fraught relationship with others, including her daughters, all manifested the aspects of Dr Quadrio's 1994 assessment, which referred to the "exploitation" of her vulnerability"; [85]
• the respondent's relationship with the Deceased and its sequelae "contributed significantly to her current circumstances"; [86] and
• the respondent's persecution of the Deceased and her propensity for conflict with others could be seen as a "disability" that entitled her to the Deceased's testamentary consideration. [87]

1. There are difficulties with these passages in the Primary Judgment. It is not clear whether the references to "some evidence" and "some support" were intended to constitute findings on the matters for which there was some evidence or support. It is also not entirely clear in what respects the relationship between the parties "and its sequelae" contributed to the respondent's "current circumstances". It is one thing, for example, to find that a deceased's abusive conduct towards his or her former spouse during the marriage caused psychiatric or physical disabilities that impaired the former spouse's ability to gain employment. It is quite another to find that the former spouse was deeply distressed and bitter at the breakdown of the marriage and that these feelings induced the former spouse to engage in vindictive and possibly financially self-destructive behaviour.
2. Despite these difficulties, it is clear that the primary Judge attributed the respondent's "circumstances of need" [88] at the date of the hearing to the relationship with the Deceased and to his conduct. It is also clear that his Honour did so on the basis of the psychiatric reports from Dr Quadrio and Dr Robertson. The circumstances in which the two reports were admitted into evidence are significant.
3. The reports were annexed to an affidavit affirmed by the respondent. She did not give evidence, either on affidavit or in her evidence in chief, to substantiate the history recorded in each of the psychiatrist's reports. The appellant's senior counsel objected to the tender of reports, but not on the ground that there was no evidence to support the assumptions on which the psychiatrists based their opinions. The objection was taken on the ground that the reports could not constitute evidence that the respondent was suffering from a psychiatric condition at the date of the hearing. The primary Judge observed that he could not see how the reports could be used in that way. On that basis, the reports were admitted into evidence.
4. Because the reports were admitted into evidence, the history recorded by the psychiatrists is capable of constituting evidence of the truth of the representations made by the respondent. [89] The primary Judge made no express findings as to the truth or otherwise of the history. It is, however, difficult to reconcile some aspects of the history recorded in the reports with the objective facts.
5. For example, the respondent told Dr Quadrio that most of her settlement of $55,000 went on legal fees and that she was living from "day to day". She also told Dr Quadrio that the Deceased had "pretended to the Family Court that he was poor". While it was true that the respondent incurred substantial legal fees in the Family Court proceedings, at the relevant time, she owned the Mollymook Property outright, retained at least half the settlement sum plus her own savings and received about $12,000 per annum from the Deceased as child support (in addition to any child support provided by Mr Melov for Alana). The primary Judge in the present case rejected the respondent's claim that the Deceased had deliberately misled the Family Court.
6. On the basis of the history recounted by the respondent, Dr Quadrio opined that the Deceased was in a position of power and authority over the respondent and that the trauma experienced by her: "is thus much more complex and qualitatively different from the trauma of a normal marriage breakdown since it represents a betrayal and an exploitation by a person in a fiduciary relationship". Dr Quadrio said that she could not be confident that the respondent would make an adequate rehabilitation.
7. Dr Robertson saw the respondent in an interview that lasted "well over one hour". He had insufficient time to take a full developmental history, but concluded that the respondent was suffering from a "chronic depressive state". Dr Robertson said that if the respondent's account was accepted, the main precipitating factors were "the circumstances of her relationship with [the Deceased] and of the subsequent marriage to him; and the events … which have followed [its] breakup".
8. These reports provide no foundation for a finding that well over 20 years later the Deceased's conduct towards the respondent and the circumstances of the marriage and its breakdown were responsible for her "circumstances of need". Nor do the reports provide a basis for finding that the Deceased's conduct and the parties' relationship were responsible for the respondent's inability to support herself adequately or for her difficulty in maintaining relationships over the years with other people, including her two daughters.
9. The primary Judge found, correctly, that there was no evidence that the respondent suffered from any psychiatric condition at the date of the hearing. He accepted that the respondent had no obvious health impediment after the breakdown of the marriage (except for the "psychological scars of the relationship") but that her health had deteriorated partly as a consequence of the three motor vehicle accidents (two of which ultimately resulted in compensation payments). Indeed his Honour found that the respondent suffered chronic pain and restrictions from the spinal injuries she sustained in the 2000 motor vehicle accident [90] and that those injuries effectively prevented her from obtaining regular remunerative employment thereafter. [91] It is also necessary to bear in mind that, in March 2004, the respondent signed a statement claiming that prior to the 2000 motor vehicle accident she was a "fit healthy and happy person". That statement is difficult to reconcile with a finding that the respondent's financial and other difficulties could be attributed to the Deceased's conduct and the circumstances of their relationship.
10. The respondent's financial problems were partly attributable to her pursuit of unsuccessful legal proceedings against the Deceased, notably the Family Court appeal and the discontinued Common Law proceedings. The primary Judge found that the respondent spent $25,000 of the lump sum payment she received from the Deceased on legal costs, including $18,000 on the appeal to the Family Court and the futile Common Law Division proceedings. [92] This clearly had a significant impact on her financial capacity to maintain her standard of living and to retain some capital.
11. The primary Judge considered that although Rourke J in the Family Court had taken into account the respondent's parental responsibilities, the respondent had fared rather worse than Rourke J had predicted. The primary Judge appears to have attributed the respondent's difficult circumstances to the Deceased's conduct and to the "psychological scars of the relationship". The primary Judge justified this approach on the basis that the respondent's "persecution of [the Deceased] through multiple proceedings in diverse forums" was due to a "disability". [93] It is true, as Mr Bates submitted, that some of the persecutory conduct occurred at or before the dates of the psychiatric reports prepared by Dr Quadrio and Dr Robertson. However, some of the respondent's conduct aimed at the Deceased, such as the withholding of information about Rebecca's bursary and the threats made to the Deceased in 2008 or 2009, occurred much later.
12. More significantly, the psychiatric reports simply do not address whether the respondent's persecutory conduct could be explained by a psychiatric condition caused by the Deceased's conduct or the nature of the relationship between the parties. For the psychiatrists to have addressed this issue they would need to have known what the respondent had done and to have explored the motivation for her conduct. This did not happen.
13. The primary Judge found support for his analysis in Wentworth v Wentworth. But that was a case involving a family provision claim by the daughter of a deceased testator, not by a former spouse seeking to demonstrate that there were factors warranting the making of a family provision application. In any event, Wentworth v Wentworth cannot assist in determining whether the respondent's conduct towards the Deceased was the product of a disability for which the Deceased bears moral responsibility and which translates into a claim on his testamentary bounty.
14. In my respectful opinion, it was not open to the primary Judge to find that the Deceased was responsible for the respondent's straitened circumstances at the date of the hearing. Nor was it open to find that the respondent's persecution of the Deceased was due to a disability induced by the Deceased's conduct or the relationship between the parties. These are additional reasons for concluding that the primary Judge's evaluative judgment was affected by a significant error.

Reconsideration

1. The very breadth of the evaluative judgment required by s 59(1)(b) of the Succession Act and the statutory direction to take into account all the circumstances of the case creates the distinct possibility that, as the primary Judge pointed out, judicial minds might differ in a particular case as to whether a claimant has established that there are factors warranting the making of a family provision application. In considering whether a claim has satisfied s 59(1)(b) care is required to ensure that preconceptions about the extent to which legislation should interfere with testamentary freedom or contestable opinions as to the continuing responsibilities of divorced parties towards each other do not unduly affect the Court's application of the statutory criteria.
2. Bearing in mind these considerations, I am nonetheless of the view that the evidence in this case does not establish that there are factors warranting the respondent making a family provision application. The starting point is that the marriage effectively ended a quarter of a century before the hearing of the respondent's claim. The relationship between the Deceased and the respondent lasted for less than six years and the marriage itself lasted only nineteen months.
3. The financial affairs between the Deceased and the respondent were resolved by final orders of the Family Court in December 1992. The making of those orders, which were confirmed on appeal, does not necessarily constitute a fatal barrier to the respondent's claim, but it is an important consideration counting against her claim. In the absence of evidence demonstrating a significant causal link between the Deceased's conduct towards the respondent and her financial needs at the date of the hearing, the Family Court orders retain their significance for the purposes of the present proceedings.
4. A further factor counting against the respondent's claim is that, as his Honour found, the Deceased meticulously complied with his obligations to provide financial support for Rebecca. The level of support provided for Rebecca's maintenance and education was reasonably substantial. Moreover, the Deceased from time to time gave additional financial support over and above his legal responsibilities. At the same time, the respondent was not entirely honest in her claims for support, in that she withheld both from the Deceased and the Child Support Agency the fact that Rebecca had received a bursary from her private school.
5. The respondent's financial needs at the date of the hearing and for a considerable period prior to that date were due to a combination of factors. These include her own decisions to institute and maintain legal proceedings against the Deceased that ultimately yielded no benefit. As the primary Judge found, the respondent received injuries in a series of motor vehicle accidents, which had a severe impact on her ability to join or rejoin the workforce (in respect of which she received compensation payments). The Deceased cannot be said to have come under a moral duty to provide for the respondent because of injuries entirely unrelated to the parties' relationship.
6. A relevant factor in considering the respondent's claim is also what the primary Judge described as her "relentless persecution" of the Deceased. [94] That persecution extended to the making of serious allegations against the Deceased which, apart from the claims of professional misconduct, were not upheld. It is correct, as Mr Bates submitted, that the primary Judge made no express finding that the allegations were false. But an application for an apprehended violence order against the Deceased was dismissed by a magistrate after hearing evidence from both the respondent and the Deceased. The dismissal of the application justifies an inference that the serious allegations supporting the application, which the Deceased denied on oath, were not true.
7. The fundamental question posed by s 59(1)(b) of the Succession Act in relation to a claim by a former spouse of the deceased is whether the claimant can be regarded as a natural object of testamentary recognition by the deceased. If the respondent's persecution of the Deceased was the product of a psychiatric illness or genuine disability induced by the Deceased's conduct or perhaps by the nature of the parties' relationship, the respondent's persecutory conduct might be given relatively little weight. But in the absence of evidence establishing a causal relationship of this kind, the respondent's conduct towards the Deceased counts against her entitlement to make a family provision claim against his estate. [95]
8. The primary Judge placed considerable weight upon the respondent's responsibility for Rebecca after the marriage breakdown. It is important to appreciate, however, that his Honour found that Rourke J made his determination in the Family Law proceedings taking into account that the respondent would have custody of Rebecca and would have to care for her. It can readily be accepted that the respondent's role as a single parent (which included her custody of Alana) affected her ability to resume remunerative employment. But it is also necessary to have regard to the Deceased's financial contributions to Rebecca's maintenance and education. The respondent's refusal to allow the Deceased access to Rebecca is not critical for present purposes, but it is not irrelevant in determining whether the Deceased had a moral responsibility to make testamentary provision for the respondent.
9. For these reasons, I conclude that the respondent has not established that there are factors warranting her making a family provision application.

Notice of contention

1. Ground 1 of the respondent's notice of contention contends that the primary Judge should have found that the Deceased's "fraud or non-disclosure" in the Family Law proceedings was a factor warranting the respondent making an application for a family provision order. The primary Judge rejected the claim that the Deceased acted fraudulently. However, his Honour found that the Deceased had been earning substantially more than $1,300 per week in the period leading up to the hearing in the Family Court and that he had not disclosed his additional earnings either to the Family Court or to the respondent. But his Honour also found that the documentary evidence demonstrated that the Deceased had experienced a temporary spike in his income due to exceptional circumstances. Accordingly, the estimate made by Rourke J of the Deceased's sustainable earning capacity was reasonably accurate and the non-disclosure of the additional temporary earnings made no difference to the outcome of the Family Law proceedings. [96]
2. Mr Bates did not challenge the primary Judge's finding that the non-disclosure was immaterial to the outcome of the Family Law proceedings. Instead he submitted that the Deceased's "deception" added to the respondent's sense of grievance. This submission was not made to the primary Judge. In any event, the submission seems to rest on the proposition that the Deceased acted dishonestly, a claim rejected by the primary Judge. Mr Bates did not point to any evidence linking the non-disclosure of the temporary spike in income to the respondent's financial or other difficulties. Ground 1 of the notice of contention fails.
3. Ground 2 of the notice of contention contends that the primary Judge should have found that the Decreased had a duty to atone to the respondent and that this was a factor warranting the making of the family provision application. The respondent's written submissions did not develop the contention but appear to argue that the Deceased's duty to atone arose because his conduct caused the respondent's disabilities. For the reasons that have been given, the factual basis for this argument is lacking.
4. This conclusion should not be taken as implying that there is a basis for a duty to atone to play a part in family provision claims. Mr Bates relied on Page v Page, [97] but that case said nothing about a duty to atone. The reasoning in Page v Page accepts that if the deceased abused the claimant and the abuse caused the claimant to suffer a psychological or psychical disability that impaired the claimant's ability to earn an income, the abuse may be relevant to a family provision claim. [98] The facts of the present case are different from the circumstances discussed in Page v Page.

Order

1. The following orders should be made:
2. Appeal allowed.
3. Set aside order 1 made by the primary Judge on 25 January 2017.
4. In lieu thereof order that the summons filed on 9 June 2015 be dismissed.
5. Set aside order 2 made by the primary Judge on 25 January 2017.
6. In lieu thereof order that: (a) the plaintiff pay the defendant's costs of the proceedings on the ordinary basis; (b) the defendant's costs, on the indemnity basis, insofar as not paid by the plaintiff, be paid or retained out of the Deceased's estate.
7. The moneys held in the controlled moneys account referred to in the undertakings noted on 4 May 2017 be released to or at the direction of the appellant.
8. The respondent pay the appellant's costs of the appeal on the ordinary basis.
9. The respondent have a certificate under the Suitors' Fund Act 1951 (NSW).

Endnotes

1. Compare Sackville AJA at [111]-[112].
2. (1994) 181 CLR 201 at 208-209 (Mason CJ, Deane and McHugh JJ); [1994] HCA 40; cf Sackville AJA at [117].
3. Lodin v Lodin [2017] NSWSC 10 (Primary Judgment).
4. Succession Act, s 127(1).
5. Primary Judgment at [32].
6. References to paragraphs of the Primary Judgment in the notice of appeal and notice of contention have been omitted.
7. See at [38] below.
8. See Chapple v Wilcox [2014] NSWCA 392 at [7] (Basten JA, Gleeson JA agreeing).
9. TFM Act, s 3(1). The TFM Act is reproduced as Appendix A to New South Wales Law Reform Commission, Report on the Testator's Family Maintenance and Guardianship of Infants Act 1916 (LRC 28, 1977) (NSWLRC Report (1977)). For background to the legislation and the opposition it aroused, see T Mandic, "Family Provision Law in New South Wales: Celebrating its Centenary" (2017) 91 ALJ 769.
10. NSWLRC Report (1977), [2.6.13]-[2.6.23].
11. NSWLRC Report (1977) at [2.6.17].
12. NSWLRC Report (1977) at [2.6.1].
13. NSWLRC Report (1977) at [2.6.19].
14. New South Wales Legislative Council, Parliamentary Debates (Hansard), 1 December 1982 at 3599-3600 (Hon DP Landa). This passage is cited in the judgment of Kirby P in Dijkhuijs (formerly Coney) v Barclay (Dijkhuijs) (1988) 13 NSWLR 639 at 650-651.
15. Id at 3600.
16. Re Fulop Deceased; Fulop v Public Trustee (1987) 8 NSWLR 679 (Re Fulop) at 680-681.
17. National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision (QLRC, Miscellaneous Paper 28, December 1997) (QLRC Report).
18. QLRC Report at 9.
19. QLRC Report at 14.
20. National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General (QLRC Report No 58, July 2004).
21. NSWLRC, Uniform Succession Laws: Family Provision (Report 110, May 2005) (Family Provision).
22. Family Provision at [2.14]-[2.21].
23. Family Provision at [2.42]-[2.62].
24. The Succession Act in its original form came into force on 1 March 2008.
25. Amendment Act 2008, s 3, Sched 1.
26. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 October 2008 at 10284 (Mr Barry Collier).
27. See at [65]-[68] above.
28. Family Provision at [2.42], referring to cl 11 of the draft bill; QLRC Report at 20-21.
29. See at [76] above.
30. Primary Judgment at [32], citing Succession Act, s 61.
31. Primary Judgment at [40].
32. Primary Judgment at [43].
33. Primary Judgment at [44].
34. Primary Judgment at [45].
35. Primary Judgment at [61].
36. Primary Judgment at [64].
37. Primary Judgment at [76].
38. Primary Judgment at [75]. Section 75(2) sets out matters that should be taken into account in determining a claim for adjustment of property between the parties to a marriage.
39. Primary Judgment at [77]-[78].
40. Primary Judgment at [79].
41. Primary Judgment at [81].
42. Primary Judgment at [84].
43. Primary Judgment at [85].
44. Primary Judgment at [86].
45. Primary Judgment at [87].
46. Primary Judgment at [88].
47. Primary Judgment at [90].
48. Primary Judgment at [91].
49. Supreme Court of New South Wales, 14 June 1991, unreported, BC9101896 (Bryson J).
50. Primary Judgment at [92].
51. Primary Judgment at [93].
52. Primary Judgment at [99]-[100].
53. Primary Judgment at [94]-[96].
54. Re Fulop at 681. Although the FP Act has been repealed, the propositions are stated using the present tense.
55. Churton v Christian (1988) 13 NSWLR 241 at 243 (Hope JA), at 248-250, 252 (Priestley JA); Dijkhuijs at 648-649, 653-654 (Kirby P) at 655 (Hope JA), compare at 657 (Mahoney JA). See also Diver v Neal [2009] NSWCA 54 at [8] (Basten JA, Allsop P and Ipp JA agreeing) (a claim by a stepdaughter).
56. [2013] NSWCA 220.
57. Sassoon v Rose at [15] (Meagher JA, Gleeson JA agreeing); see also Chapple v Wilcox [2014] NSWCA 392 at [4]-[5] (Basten JA), at [43] (Barrett JA), at [150] (Gleeson JA) (a claim by a grandson of the deceased).
58. Yee v Yee [2017] NSWCA 305 at [112] (McColl JA, Gleeson and Simpson JJA agreeing).
59. [2014] NSWCA 392.
60. After the daughter's death, the appeal was continued by her executor.
61. Chapple v Wilcox at [14]-[15].
62. Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 208-209 (Mason CJ, Deane and McHugh JJ).
63. Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at 777 (Meagher JA, Basten and Campell JJA agreeing), citing Singer v Berghouse at 209-210; Chapple v Wilcox at [64] (Barrett JA, Gleeson JA agreeing).
64. Dijkhuijs at 651 (Kirby P, Hope JA agreeing).
65. Dijkhuijs at 653.
66. Dijkhuijs at 651.
67. Dijkhuijs at 652.
68. Dijkhuijs at 653.
69. Dijkhuijs at 652.
70. Dijkhuijs at 648.
71. Dijkhuijs at 650.
72. See O'Shaughnessy v Mantle (1986) 7 NSWLR 142 at 147-148 (Young J). Another example given in that case is where the claimant was financially dependent on the deceased at the date of death.
73. Family Law Act 1975 (Cth), s 48(1), (2).
74. Page v Page [2017] NSWCA 141 at [120] (Sackville AJA, Leeming JA agreeing).
75. (1936) 55 CLR 499; [1936] HCA 40 at 504-505 (Dixon, Evatt and McTiernan JJ).
76. (1986) 161 CLR 513; [1986] HCA 17 at 517-518 (Mason CJ and Deane J, Brennan J agreeing); at 535 (Wilson and Dawson JJ).
77. Sassoon v Rose at [12].
78. [2017] NSWCA 305 at [108]-[109] (McColl JA, Gleeson and Simpson JJA agreeing).
79. (Court of Appeal (NSW), 5 October 1993, unrep) at 13-14, cited by the High Court in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 212 (Mason CJ, Deane and McHughJJ).
80. Primary Judgment at [87], reproduced at [99] above.
81. Primary Judgment at [81], [84], [88], [90], [92], reproduced at [96], [100]-[102] above.
82. Primary Judgment at [50], [87], [90], [99] reproduced at [99] and [101] above.
83. Primary Judgment at [81], [84].
84. Primary Judgment at [84].
85. Primary Judgment at [84].
86. Primary Judgment at [88].
87. Primary Judgment at [92].
88. Primary Judgment at [90].
89. Evidence Act 1995 (NSW), s 60(1).
90. Primary Judgment at [36].
91. Primary Judgment at [85].
92. Primary Judgment at [85].
93. Primary Judgment at [92].
94. Primary Judgment at [79].
95. See Succession Act, s 60(2)(m), at [67] above.
96. Primary Judgment at [75]-[76].
97. [2017] NSWCA 141.
98. Page v Page at [119]-[120] (Sackville AJA, Leeming JA agreeing).

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