Marando v Rizzo

Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hampson v Hampson [2010] NSWCA 359 Ingamells v Western Australia Trustees Ltd (Full Court of the Supreme Court of WA, 5 March 1993, unreported) Kay v Archbold [2008] NSWSC 254 Kembrey v Cuskelly [2008] NSWSC 262 Lynum v Director General of Social Security (1983) 52 ALR 128 McCosker v McCosker (1957) 97 CLR 566 McKenzie v Baddeley [1991] NSWCA 197 Mayfield v Lloyd-Williams [2004] NSWSC 419 Palaganio v Mankarios [2011] NSWSC 61 Penfold v Perpetual Trustee [2002] NSWSC 648 Petrohilos v Hunter (1991) 25 NSWLR 343 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Robson v Quijarro [2009] NSWCA 365 Scragg v Scott [2006] NZFLR 1076 Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Skinner v Frappell [2008] NSWCA 296 Smyth v Pappas [2011] FamCA 434 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Thornton v Perpetual Trustees (W.A.) Ltd (1983) WAR 266 Tsivinsky v Tsivinsky [1991] NSWCA 269 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, Young J, 17 May 1996, unreported) Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Ye v Fung [2006] NSWSC 243 Texts Cited: Macquarie Dictionary The Second Reading Speech (Legislative Assembly, (Hansard) 26 May 1999, p 535) "Truth and the Law", the 2011 Sir Maurice Byers Lecture, 26 May 2011, J Spigelman CJ Category: Principal judgment Parties: Angela Marando (Plaintiff) Elizabeth Rizzo (Defendant) Representation: Counsel: Mr I M Khan (Plaintiff) Mr R Lovas (Defendant) Solicitors: Gerard Malouf & Partners (Plaintiff) Philip J King Solicitor (Defendant) File Number(s): 2011/392666

The Application 1HIS HONOUR: Angela Marando ("the Plaintiff"), whose principal assertion is that she was living in a de facto relationship with Aniello (Neil) Salvatore Rizzo ("the deceased") at the date of his death, applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. 2The Plaintiff commenced the proceedings by Summons filed on 25 November 2010, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). The Defendant named in the Summons is Elizabeth Rizzo ("the Defendant"), the de jure wife of the deceased (but from whom he had been separated since 2007), and the executrix appointed in the Will of the deceased, to whom Probate was granted. 3There is no question, in the present case, of any provision being sought out of notional estate of the deceased.

Background Facts 4The following facts are uncontroversial. 5The deceased died on 30 November 2009. He was then aged 43 years, having been born in February 1966. 6The deceased and the Defendant commenced to live together in October 1985 and were married in January 1997. They separated in 2007. There were two children of their marriage, Jake, who was born in November 2001, and Leilani, who was born in April 2004. 7In 2008, the deceased was diagnosed with a genetic disorder, retinus pigmentosa, the prognosis of which condition was that it was highly probable that he would lose most of his eyesight. He also suffered from hepatitis c. 8The deceased left a Will that he made on 9 September 2007, Probate of which was granted, on 29 June 2010, by this court, to the Defendant. 9The deceased's Will, relevantly, provided for the whole of the deceased's estate to pass to his two children. No provision was made in the deceased's Will for the Plaintiff. 10In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, gross value of $1,723,473. No liabilities were disclosed. The estate was said to consist of real property at Chifley ($850,000), the deceased's share (77/100th) of real estate and a shop in Darlinghurst ($662,200), money on deposit ($4,827), the deceased's share of rent from the shop ($37,811), an outboard motor boat ($2,000), one share in a private company ($1.00), and shares in a public company ($5,000) and the proceeds of superannuation ($161,634). (I have omitted any reference to the cents and shall continue to do so.) 11The Inventory of Property also reveals that the deceased held real estate at Little Bay, as a joint tenant with the Defendant ($520,000) as well as moneys in bank, as a joint tenant with Pasquale Rizzo (the deceased's father) ($4,754). 12In an affidavit sworn by the Defendant on 1 June 2012, the Defendant stated that the deceased had a liability of about $265,000, at the date of death, secured by registered mortgage over the Darlinghurst property. There is no dispute that the debt was owed or that it was a secured debt. 13At the date of hearing, no significant part of the deceased's estate had been sold or distributed. The parties agreed that the deceased's estate currently consists of the real property at Chifley ($920,000), the deceased's share (77/100th) of the property at Darlinghurst ($622,200), money on deposit in the bank account in the name of the Defendant (on behalf of the estate) ($59,663), moneys held in the Defendant's solicitors' trust account ($40,000) and shares in a public company ($5,000). 14The property at Chifley is the home of the Defendant and the children. 15The parties could not agree about the estate's share of the rent that should have, but has not, been paid, after the death of the deceased, calculated by the Defendant to be $159,929 (being 77 per cent of $6,700 per month for 31 months). The Defendant's counsel asserted, from the bar table, that there was a dispute with the deceased's father about the payment of the amount, which was disclosed as a "contingent asset" of the deceased. There was no evidence of the nature of the dispute, or reasons why the Defendant had not sought to recover the outstanding rent due to the estate from the Defendant's father. Nor was there any evidence about any steps taken to sell the property at Darlinghurst to recover the deceased's share of its value. 16There was also no evidence about the nature and amount of expenses that have been paid out of the deceased's estate. 17As agreed between the parties, the value of the gross distributable estate is estimated to be about $1,646,863. (It is possible that the value of the gross distributable estate is somewhat higher since what has been agreed does not include the deceased's share of rent from the Darlinghurst shop.) 18The parties also agreed that the amount secured by the mortgage over the Darlinghurst property is currently $260,000, leaving the value of the net estate (excluding costs of the proceedings) estimated to be $1,386,863. If the whole of the rent not paid to the estate is recovered, the net estate (excluding costs of the proceedings) will be $1,546,792. 19In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs be paid out of the estate. 20The Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, have been estimated to be in the order of about $90,000 (inclusive of GST and upon the basis of a two day hearing). The costs and disbursements of the Plaintiff, including counsel's fees, calculated on the ordinary basis, are estimated to be $85,104 (inclusive of GST and upon the basis of a two day hearing). The Plaintiff's solicitor states "... costs in this matter have been sufficiently increased on account of the fact that the plaintiff has been required to prove the existence of a de facto relationship, including replies to multiple defendant affidavits and review of audio-visual material". 21The Defendant's costs and disbursements of the present proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a two day hearing), have been estimated to be $45,000. Of this amount, $6,714 has been paid, leaving a balance of $38,286. 22The parties accepted that for the purposes of the hearing, I should determine the Plaintiff's application upon the basis that the estimated value of the net distributable estate, after the payment of such costs as are ordered to be paid out of the estate (using the costs estimates set out), will be about $1,263,474 (or if all of the rent unpaid is recovered $1,423,403). 23The issue of costs is to be argued following the delivery of these reasons for judgment and I shall allow the parties an opportunity to consider these reasons and see if they are able to reach agreement on costs. 24Of course, depending upon the result of the case, and the orders for costs, if any, which are made, the costs and disbursements, if payable out of the estate will be able to be formally assessed, unless otherwise agreed by the parties. Accordingly, as counsel for the Defendant stressed, the figures stated are estimates only. 25The persons described as eligible persons, within the meaning of the Act, are the children of the deceased named in the Will of the deceased and the Defendant (as the wife of the deceased). The Defendant disputes that the Plaintiff is an eligible person within the meaning of the Act. 26Only the Plaintiff has commenced proceedings under the Act. Clearly, the Defendant, as a party, is aware of the proceedings. The Act (as will be seen) provides that since she has not commenced proceedings, I may disregard her interests as a person in respect of whom an application for a family provision order may be made. (She is not, in any event, a beneficiary named in the deceased's Will.) 27The Defendant, as executrix, represents the interests of the deceased's children, who are the beneficiaries named in the Will. She has given evidence that they are competing claimants, financially and otherwise, upon the bounty of the deceased.

Additional Background Facts 28There were several exhibits that were tendered, without objection, to which reference should be made. 29The first exhibit was a written record of interview, dated 16 August 2009, between the deceased and two police officers, which interview was conducted at Maroubra Police Station. The Police stated to the deceased, at the commencement of the record of interview, that they were "investigating a domestic assault upon your girlfriend, Angela". The deceased was told, and he acknowledged, that one of the police officers had previously informed him that the police were "investigating the allegation that you assaulted your girlfriend, Angela". There is no dispute that the person, Angela, referred to, is the Plaintiff. (The time spent in obtaining the record of interview was about 20 minutes.) 30It is not necessary to repeat verbatim the contents of all of the record of interview. So far as is relevant, the record of interview provided: (a)At the date of the interview, the deceased and the Plaintiff were living in the deceased's townhouse at Little Bay. (b)The deceased's occupation was that of a customs officer (for two years) and prior to that time (for 21 years) as a correctional officer. (c)The deceased was then taking "anti-depressants and valium", which had been prescribed for his depression. (d)The police had been requested to attend the Little Bay townhouse by the neighbours. (This did not appear in the record of interview but was accepted by the Plaintiff as having occurred.) (e)There was an incident between the Plaintiff and the deceased prior to the deceased being arrested (although the cause, or causes, of the incident were the subject of dispute). A question was whether the deceased had assaulted the Plaintiff, or as he asserted, she had assaulted him as a result of which he had defended himself. (f)During the course of the incident, the deceased asked the Plaintiff to leave the Little Bay townhouse and she had refused to go (although she later agreed to go). (g)The Plaintiff, during the time that she had lived with the deceased, had "never paid any rent". (h)The deceased asserted that he had "a very good relationship with my wife" (the Defendant). (i)The deceased's relationship with the Plaintiff had been "for the last eight months". (j)There is a reference, by the deceased, to the Plaintiff's attempted suicide in or about March or April 2009. 31There is, however, one part of the record of interview that warrants specific repetition because, in my view, it partly explains the nature of the relationship of the deceased and the Plaintiff: "Constable ...: Okay. Is there anything else you want to tell us about the argument that occurred inside your unit ...? A Rizzo: Oh look, yeh, like I said, the argument was as a result of the vacuum cleaner and... but it's got to more to do than that; it's because she's extremely jealous about my ex-wife because I've got two children to my ex-wife and since I've been having this relationship with her I've been... I haven't even been seeing my children on a daily basis because she thinks that I go... she doesn't want me to go and have anything to do with her, and I've got a very good relationship with my wife. Although we've been separated for two years I still treat her as my best friend because we were married for 20 years and we've got two children. She just lives in Chifley. Now prior to me having a relationship with Angela, I used to see my children every day, and since I've had a relationship with Angela for the last eight months I see them maybe once or twice a week if I'm lucky, and the only reason I only see them once or two or three times is to keep her happy and to get her off my back because then she's going to say "You spend time with your kids. You spend time with your ex-wife" and it's just to stop her from having all these thoughts. She's always been feeling insecure and thinks that I'm going to go back to my ex-wife and I say "I'm not going to go back to my ex-wife" but she keeps having doubts about that and that's why in the last ... We've been going together for eight months." 32The second exhibit tendered was a DVD recording, which was made by the deceased, of the police attending the Little Bay townhouse, on 17 August 2009, on which occasion the deceased refused to see the Plaintiff and demanded that she return various items that she had allegedly taken from him (his keys, a video camera, money and a barbecue). As requested by the parties, I viewed the DVD recording in Chambers. (I have also read the typed transcript, provided to me as an aide memoire.) 33It is clear from this DVD recording that the deceased was in a highly emotional state on the day following his arrest by the police and that he was not disposed kindly towards the Plaintiff on that day. He said that he would "not allow her into my place" and that she would be "trespassing". He also stated that he did not want to see her or have any contact with her. 34The third exhibit tendered was a transcript of 107 text messages (there were 110 text messages identified, but three ((28), (29) and (30) did not form part of the tender) passing between the Plaintiff and the deceased. The last text message in time was one sent on 27 November 2009. The Plaintiff sent the first on 20 April 2009. Counsel for the Defendant informed me that these messages had been retrieved from the deceased's mobile telephone (or telephones). 35I think it is fair to say that most of the text messages demonstrate the volatility of the relationship that existed between the Plaintiff and the deceased. Many reflect the state of flux in which the relationship appears to have been almost from its commencement. By this I mean that there are some in which the Plaintiff professes a great love for the deceased, whilst others reflect her anger towards, and her dislike of, him. Many of the messages indicate that their relationship is at an end or that it has ended. 36The Plaintiff accepts that her feelings towards the deceased expressed in the text messages reflected her state of mind at the time those messages were sent. For example, when she stated that the relationship had ended, that accurately reflected her belief at that time. Where she stated it was to end, that accurately reflected her intention at the time. 37Whilst one can understand that a text message may be sent when the sender is in an highly emotional state, and once sent, cannot be retrieved, it is the number of these messages and the consistent theme reflected by many of them, that is important, in the present case. In my view, they reflect the volatile, inconsistent, and, at times, uncertain, nature of the relationship between the Plaintiff and the deceased. 38There was no evidence of any text messages sent by the deceased to the Plaintiff. The Plaintiff explained that her mobile telephone had been stolen and that she had not had an opportunity to retrieve and print out the text messages sent to her by the deceased that were stored on that mobile telephone. 39The Plaintiff believed that the deceased had three mobile telephones during the course of their relationship although she did not know where they were. The Defendant did not produce any evidence of any text messages sent by the deceased to the Plaintiff. There were no reasons given in evidence for not producing the text messages. (Counsel for the Defendant submitted, when I raised the question during submissions, that there was no evidence that the deceased's mobile telephone, or telephones, had capacity to enable the Defendant to retrieve and print out text messages that had been sent by the deceased to the Plaintiff. However, if that was the explanation, one might have thought the Defendant would provide some evidence on the topic, especially since she had tendered the transcript of text messages sent to the deceased by the Plaintiff.) 40There is another important piece of evidence that was not the subject of dispute. The Plaintiff wrote a letter, dated 16 August 2009, to the deceased's mother in which she stated that she wanted her "to know the truth". In that letter, she referred to having been with the deceased for 8 months. More importantly, the Plaintiff referred to matters of an extremely private nature involving the deceased and the Defendant, which I am sure they would not have wanted disclosed, and which, in all probability, the deceased's mother would not have wanted to know. She also threatened to make certain statements to the Roads and Traffic Authority and to the Defendant's employer about the deceased and the Defendant.

The Statutory Scheme - The Act 41Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in their application. 42The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. 43The key provision is s 59 of the Act. The court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. 44Relevantly, in this case, the Plaintiff relies upon each of the categories of eligibility referred to in s 57(1)(b) and (e) of the Act.

De Facto Relationship 45The first ground of eligibility upon which the Plaintiff relies is s 57(1)(b) of the Act, namely that she is a person with whom the deceased was living in a de facto relationship at the time of the deceased's death. 46There is no definition of "de facto relationship" in the Act. However, that term is defined in s 21C(2) of the Interpretation Act 1987. For the purposes of any Act or instrument, a person is in a "de facto relationship" with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. 47Importantly, the definition does not require an exclusive relationship and it can be established even where one, or both, of the parties, is, or are, married to another. 48In s 21C(3) of the Interpretation Act, in determining whether two persons have a relationship as a couple for the purposes of sub-section (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: "(a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple." 49In Ingamells v Western Australia Trustees Ltd (Full Court of the Supreme Court of WA, 5 March 1993, unreported), the Full Court (Malcolm CJ, Rowland and Ipp JJ) quoted, with approval, the following passage from the judgment of Fitzgerald J in Lynum v Director General of Social Security (1983) 52 ALR 128 at 131: "Each element of a relationship draws its colour and significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meet the statutory test." 50Although each of these cases was decided many years ago (as evidenced by the reference to "the opposite sex" in the passage quoted), the general principle stated applies equally now as it did then. 51Once the physical, or factual aspects, of the relationship have been examined, whether a mental ingredient also existed should be considered. That ingredient involves some commitment, by each of the parties, to their relationship. It need not necessarily be a commitment intended to last forever, or indefinitely. Nor need it be a commitment to a long-term relationship. But it should, at least, be a mutual commitment for the foreseeable future. 52Furthermore, in assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, and grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another. 53The significance of qualifications of these kinds appears from passages in Basten JA's leading judgment in Robson v Quijarro [2009] NSWCA 365 at [14]-[16], and from passages which his Honour cited from Bar-Mordecai v Hillston [2004] NSWCA 65 at [120]-[124]: Dion v Rieser [2010] NSWSC 50, per Bryson AJ at [162]. 54Thus, the determination of the existence of a de facto relationship is essentially impressionistic. If sufficient pieces of evidence exist which, when viewed cumulatively, and through the application of common sense and proper reasoning, satisfy the finder of fact that the relationship is a de facto relationship then the statutory test is met: Scragg v Scott [2006] NZFLR 1076 at [64]. 55The concept of a de facto relationship was discussed by Gzell J in Ye v Fung [2006] NSWSC 243, at paragraphs [64] - [65] of the judgment: "[64] A de facto relationship requires more than adult persons living together. They must live together as a couple. When one thinks of persons as a couple, one thinks of two people in a romantic relationship. That is the first meaning given in the Macquarie Dictionary (4th ed) with reference to people as a couple. The Oxford English Dictionary in defining the word in the sense of the union of two, or a pair, gives as its first meaning with reference to two people: 'A man and woman united by love or marriage; a wedded or engaged pair'. [65] In my view the word in the Property (Relationships) Act 1984, s 4(1)(a), in the context of the extension of relief under the Act to persons in a domestic relationship, connotes two adult unmarried persons living together, united by love, or living together in a romantic relationship. The effect of such a construction is that de facto relationships are confined to heterosexual and homosexual romantic relationships." 56Cummins J in Dow v Hoskins [2003] VSC 206 said that "the determination of whether the Plaintiff was living with the deceased ... should not be construed on narrow, formal, pedantic or merely geographical criteria, but should be considered taking into account the human reality of the personal, emotional and cultural complex". 57In Dion v Rieser Bryson AJ, at [14], said: "[14] A de facto relationship is a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close their involvement in each other's emotional lives, a conclusion that people are living together as a couple involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element." 58In the alternative, the Plaintiff relies upon s 57(1)(e) of the Act, namely that she is a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member. 59It can be seen, from the sub-section, that there are two limbs. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being "a member of the household of which the deceased person was a member". 60There is no dispute, in this case, that the Plaintiff was a member of the household of which the deceased was a member for a period of time. The precise period is in issue, but the Act does not state any requisite time during which an applicant must be a member of the household. 61The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support. 62In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom the other members of the Court of Appeal agreed, said (in the context of a claim under section 15B of the Civil Liability Act 2002): "44 In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138: 'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'" 63In Skinner v Frappell [2008] NSWCA 296, Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal at [85] wrote: "The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material, or physical, help or succour, emotional dependency is not enough." 64In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346-347, it had been said by Hope AJA: "I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to "financial or material" matters as McClelland J said in Re Fulop (dec'd) or to "other forms of dependence analogous to but distinct from financial dependence" as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period." 65In Ball v Newey (1988) 13 NSWLR 489, Samuels JA, at 492, had also said: "Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is "the actual fact of dependence or reliance on the earnings of another for support that is the test": per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. "The standard of support is set by the parties themselves" (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. 66In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word "partly" in the phrase "partly dependent", whilst a word of "some elasticity", does not mean "substantially", but means "more than minimally", or perhaps, "significantly". Meagher JA commented that "Common sense requires that certain trivial activities should be disregarded". 67A similar view was taken by the Court of Appeal, more recently, in Alexander v Jansson [2010] NSWCA 176 at [13]. 68The question of dependency, whether whole or partial, is one of fact. 69Where an applicant falls within s 57(1)(d), (e) or (f), the court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)). 70The Act does not specify the "factors which warrant the making of the application". In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased. 71Kirby P in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, which was in similar terms, said: "Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors ... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act." 72In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian. 73In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686: "In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination." 74In Diver v Neal [2009] NSWCA 54 (also (2009) 2ASTLR 89), Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act: "8 As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681." 75More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said: "[62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope. [63] However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition. [64] On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time." 76It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA and Young JA as correct and propose, in the circumstances, to follow their decisions. 77In Porthouse v Bridge, Bryson AJ commented: "7 This provision gives no clear indication of the nature of the factors which should be regarded as warranting the making of the application. Decision whether there are factors which warrant the making of the application is committed to the Court in extremely general language; the Court is to have regard to all the circumstances of the case (whether past or present). The effect is that a very broad power is given to the judge who hears the case to recognize and assess the significance of the circumstances of the case and what regard should be paid to them, what the factors are and what they warrant. There may be very cogent factors which demonstrate that the making of the application is warranted, but it is unlikely that this will often be the case, and the section commits to the Court a power of determination which is difficult to distinguish from a discretion of the broadest kind. 9 ... The recognition of factors and their weight is left to the determination and opinion of the Judge. In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination." 78Then, if eligibility and, if necessary, factors warranting the making of the application are found, the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). It may take into consideration, the matters referred to in s 60(2) of the Act at both stages. In this way, the court carries out a two-stage process. 79Other than by reference to the provision made in the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education or advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education or advancement in life of the applicant. 80It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". 81Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application. Under s 59(2), the Court has regard to the facts known to the court at the time the order is made. 82"Provision" is not defined by the Act, but it was noted in Diver v Neal at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". 83Neither is the word 'maintenance', nor the phrase 'advancement in life', defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words 'maintenance', 'support' and 'advancement': "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 84In Alexander v Jansson, Brereton J (with whom Basten JA and Handley AJA agreed),at [18],stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." 85In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128." 86Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" 87In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." 88In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." 89The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance education and advancement in life: Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77] per Buss JA. 90Each of the words was considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances." 91Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 92In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 93In Vigolo v Bostin, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 94Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), "adequate" and "proper" are independent concepts. He said at 12: "Adequate" relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. "Proper" depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..." 95In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education and advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered. 96The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant. 97Whether the applicant has a 'need' or 'needs' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). 98Tobias JA said, at [42] and[47]: "Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is because of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration of a need to guard against the contingency to which I have referred." 99In Devereaux-Warnes v Hall [No 3] at [81] - [84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]." 100In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the applicant is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. 101The second stage of the process arises under s 59(2) and s 60(1)(b). Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour. 102Section 60 of the Act, at least in part, is new. It provides: "(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, to any other person in respect of whom an application has been made for a family provision order 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, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (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, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (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, (l) whether any other person is liable to support the applicant, (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, (o) any relevant Aboriginal or Torres Strait Islander customary law, (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." 103It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. 104Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under sub-s (1)(a), many of the matters in sub-s (2) will be largely, if not wholly, irrelevant. 105There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in the Property (Relationships) Act 1984, which I consider helpful: ""financial resources" ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ..., (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit." 106Of course, sub-s (2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income. 107Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 108Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. 109This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (at 209-210): "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 110And by the comments of Callinan and Heydon JJ in Vigolo v Bostin (at 230-231): "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 111Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. However, the court may disregard any such interests only if: (a)notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or (b)the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case. 112Section 65(1) of the Act requires the family provision order to specify: (a)the person or persons for whom provision is to be made, and (b)the amount and nature of the provision, and (c)the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d)any conditions, restrictions or limitations imposed by the court. 113The order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act). 114The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act). 115Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act). 116Section 66 of the Act sets out the consequential and ancillary orders that may be made. 117The court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act). 118Section 99 of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit.

Other Applicable Legal Principles - Substantive Application 119Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were given in the context of the previous legislation, they are equally apt in a claim such as this one. 120Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act the correction of the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education and advancement in life of an applicant. 121In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the deceased's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19. 122In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." 123Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 124In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 125The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966. 126Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, for the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262 at [45]. 127I make it clear that I do not intend what I have described as "applicable legal principles" to be elevated into rules of law or the discretion, at the second stage, to be constrained by statements of principle found in dicta in decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions the terms of which must remain firmly in mind.

Termination of a de facto relationship 128Because in this case there is a question whether the Plaintiff and the deceased were living in a de facto relationship at the date of death, it is necessary to say something about the principles that apply in relation to determining whether a de facto relationship has ended. 129I gratefully adopt what has recently been said by Slattery J in Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675 at [75] - [78]: "75 The authorities explain the effect that a separation has on the inference of the existence of a de facto relationship after the separation. The mere decision not to live together with the other party may in some cases allow the Court to infer the end of the relationship. As Justice Mahoney held in Hibberson v George (1989) 12 Fam LR 725 at 739-740 (with whom Hope and McHugh JJ agreed) a case dealing with an earlier form of the Property (Relationships) Act: "The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to "live together" with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue." 76 In S v B (No. 2) [2005] 1 Qd R 537, Dutney J (with whom McPherson and William JJA agreed) applied the principles stated in Hibberson v George and his Honour said (at [48]): "A de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party provided that the other party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the relationship ceases. The relationship ceases even though one of the parties is still anxious to try to save it." 77 His Honour continued (at [49]): "there is a difference between a marriage and a de facto relationship" and he further concluded (applying Pavey v Pavey (1976) 10 ALR 259) that: "A party asserting the continuing relationship must prove the positive aspects of the relationship rather than the party asserting separation being required to prove negatives": S v B (No. 2) [2005] 1 Qd R 537 (at [50]). 78 But, as the New South Wales Court of Appeal decided in Gazzard v Winders (1998) 23 Fam LR 716 short separations may not end a relationship. In that case Beazley JA in contrast to Powell JA and with the agreement of Stein JA, found that it was not in the spirit of the De Facto Relationships Act 1984, as the legislation was then known, or reality, to find that a short interruption "which, in a long relationship may be no more than a hiccup, would have completely brought the relationship to an end" (at [20])."

The Witnesses 130In this case, there were disputes about most facts. It has been necessary to closely evaluate the evidence of the parties, since credit was said to assume a decisive significance in deciding a number of these issues. 131In doing so, I remember what Kirby J, although in dissent, said in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447: "[119] ... Some judges in the past regarded untruthful evidence - even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties' morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial ... If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that the falsehoods be ignored as irrelevant or immaterial to the decision-maker's ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned ... [120] Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of not real importance. In consequence, they sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law." 132As J Spigelman CJ observed in "Truth and the Law", the 2011 Sir Maurice Byers Lecture, 26 May 2011: "Witnesses can, without any dissimulation or propensity to lie, confidently assert the truth of conversations, observations and events which did not happen. The plasticity of memory impedes the truth finding process. This is not an uncommon phenomenon." 133I also realise, as Cronin J did in Smyth v Pappas [2011] FamCA 434, at [14], that: "In disputes involving these sorts of relationships, it is conceivable that two people intimately connected to each other in one way or another, can see the same thing in entirely different ways." 134Although that case involved persons who were alive and giving evidence of their relationship at a particular time, I consider that the statement is applicable also in a case where one party is giving such evidence. 135Ultimately, however, it seems to me, as the facts have emerged, that there was less factual dispute. However, because some time was spent during the Defendant's submissions, commenting upon the evidence of the Plaintiff, I should deal with those submissions (albeit briefly). 136I accept that some of the Plaintiff's evidence cannot be explained on the basis of a particular view of the facts. It is clear that some of her affidavits, and some of her other evidence, did not accurately depict the true nature of her relationship with the deceased and was otherwise proved to be wrong. 137The following aspects should be specifically noted: (a)The Plaintiff described her relationship with the deceased in the affidavit as that of "childhood sweethearts". In cross-examination she persisted with the use of that description, stating "that is exactly what we were". In fact, she met the deceased, for the first time, in early 1982, when she was almost 18 years old, at a time when they both started a TAFE course. He was one year younger. They had a relationship for a few months (until about the middle of that year) and then did not see, or have anything to do with, each other until they met again in October 2008. The description grossly exaggerates their initial relationship. (b)Her statement that they lost contact "for a few years" is also a misdescription of the time involved. They did not have any contact, one with the other, for over 25 years. (c)Her statement that from the time they met again "they were inseparable" is also an exaggeration although it may be that she was referring to the period before she moved into the deceased's home at Little Bay. There was not really much evidence about that period. (d)Her evidence, in cross-examination, that she and the deceased moved into a property that the deceased owned in Botany before moving into the Little Bay townhouse was inconsistent with what she said in her first affidavit, namely that a short time after they met again "... I moved in with Neil at his unit at ... Little Bay". She had not mentioned moving into a property that the deceased owned in Botany. Furthermore, when asked, she was unable to recall the address of the property at Botany into which she said she and the deceased were said by her to have moved. (On this aspect, the Defendant gave evidence, which I accept, that the deceased had stayed at the Chifley home until he and the Plaintiff moved into the Little Bay townhouse.) (e)A text message that she sent to the deceased on 18 August 2009, referred to "the last 8 months". The letter dated 16 August 2009 addressed to the deceased's mother, also referred to the same period. (f)The Plaintiff said nothing in her first affidavit about the six or seven occasions between February and August 2009 when she and the deceased had separated; nor did she mention the events of August 2009. (g)In her July affidavit, the Plaintiff referred to her holiday with the deceased in Phuket. She annexed an itinerary that referred to her booking, leaving on Wednesday 2 September 2009 and returning on Friday 18 September 2009. She stated that it was during this holiday that the Defendant, "without consent", changed the locks to the Little Bay property and in support thereof annexed a copy of an invoice dated 8 September 2009, from a locksmith, addressed to the Defendant referring to a service call and changing three locks at the Little Bay townhouse. In fact, the Plaintiff did not go to Phuket with the deceased in September 2009. The deceased requested the Defendant to change the locks. (h)The Plaintiff said that the decision to not go to Phuket in September 2009, was her own decision and was based on the possibility that the deceased might bring back steroids with him. Bearing in mind some of the text messages that followed the events of 16 and 17 August 2009, I tend to think that the relationship of the Plaintiff and the deceased had ended and that he did not want her to go there with him. (i)In her July affidavit, she said that the events of 16 August 2009, had been caused by the Defendant changing plans for the deceased to see his children, which caused the Plaintiff and the deceased to become upset. In her oral evidence, she admitted "the arrival of the police meant that [the visit with the children] had to be cancelled". She then said that the Defendant had already cancelled the plans with the children. (j)The Plaintiff's version that she returned to live with the deceased after the August events is inconsistent with other objective evidence to which I shall refer or have referred. I do not accept her evidence in this regard. (k)She admitted in oral evidence that it was she who had told the deceased's employer that he had brought steroids back from Phuket. (l)She stated that her anxiety and depression had "started after Neil's death". It is clear that she had suffered depression earlier in 2009 and that her condition had been severe enough to prompt her to attempt suicide. (m)She gave evidence supported by an annexed document that she had purchased various household items. When cross-examined, it was clear that some of the items were stock that she had purchased, not for the Little Bay townhouse, but to on-sell as part of her business. 138I have borne these matters in mind when determining the other facts to which I shall refer. 139No real criticism of the Defendant's evidence was made and she was not cross-examined at great length.

Additional Facts 140I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. (a)any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship 141The following comment has been made by Campbell JA in regard to the court's consideration of the totality of the relationship of the applicant in Hampson v Hampson [2010] NSWCA 359: "80 The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge." 142The Plaintiff and the deceased met initially in 1982, and then again in October 2008. For the intervening 26 years, they had nothing to do with each other. Each married different people and lived her, and his, life without any communication with the other. They met again at a party in 2008 and a relationship commenced. On the Plaintiff's case, they commenced to live in a de facto relationship almost immediately (in December 2008), and they remained in that relationship until the deceased's death, about 11 months later. 143The Defendant gave evidence that in early 2009, the deceased told her that he had met the Plaintiff and that he wanted her to meet the Plaintiff. This event, in my view, is quite important and demonstrates that, at least, by early 2009, the relationship of the Plaintiff and the deceased had developed to the point where the deceased wished the mother of his children, the Defendant, to meet the Plaintiff. 144The Defendant seemed to agree that the Plaintiff "stayed at" the deceased's townhouse at Little Bay with him from at least late January or early February 2009. I do not accept that the Plaintiff only "stayed" there. This is inconsistent with the deceased's statements to the police to which reference has been made. It is also inconsistent with the Plaintiff's purchase of a bed in mid-January 2009, which bed was delivered to the Little Bay property. 145Doing the best I can, I conclude that following their meeting in October 2008, the Plaintiff and the deceased commenced a relationship. However, it was not until the end of January, or early February 2009, that the Plaintiff moved into the Little Bay town house. It was only then that a de facto relationship commenced. 146In late May 2009, the deceased gave the Plaintiff a birthday card that was addressed "to the love of my life". In it, he said "Love you always. Your Man". 147Yet, between the commencement of the relationship and 16 August 2009, there were at least six or seven different occasions when one, or both, of the Plaintiff and the deceased, regarded the relationship at an end. The relationship, during this period, was very volatile and one punctuated by some physical violence. Even though on each of these occasions, the Plaintiff left the Little Bay townhouse and returned to the property that she and her husband owned together in Blackheath (where she retained her own bedroom) or she went to stay at the home of a friend, and even though at the time of separation, one, or both of the Plaintiff or the deceased, desired a physical separation, which was accompanied by an intention on the part of each, or both, to permanently end the relationship, I am satisfied that that was the nature of their relationship in the period until mid-August 2009. 148It seems that between the end of January, or early February, 2009, until 16 August, 2009, although there were difficulties in their relationship, the Plaintiff, for the most part, was living with the deceased in the Little Bay property. I am satisfied that during this period, they were living in a de facto relationship. (I note that in a text message sent by the Plaintiff to the deceased on 18 August 2009, she refers to the "last eight months". I have referred to the letter from the Plaintiff to the deceased's mother. I have also referred to the deceased's statements in the record of interview.) 149I have earlier referred to the events of mid-August 2009. The Plaintiff, herself, described the events of 16 August 2009 as "a terrible event". I have come to the conclusion that these events (to some of which I have referred) were "a relationship turning point", using the words of Slattery J in Simone Starr-Diamond v Talus Diamond, at [56]. 150The Defendant says that, as a result of these events, the deceased regarded the relationship, in its then form, as having ended, and that he and the Plaintiff did not live together thereafter although there may have been occasions when she came over and, perhaps, stayed the night with him. 151There is some support for the Defendant's assertion. For example, there is a notation on medication prescribed for the Plaintiff, dated 23 August 2009, disclosing a pharmacy at Blackheath. The Plaintiff accepted that she was then at the property which she and her husband owned in Blackheath. 152In one text message on 3 September 2009, the Plaintiff said that she was "looking at places today"; in another text message, sent on the same day, about two hours later, she wrote: "I will go peacefully, will let you know when". 153She must have left the Little Bay property at, or about, this time, because it was on 8 September 2009 that the Defendant changed the locks. (At this time, the deceased was alone in Phuket.) I accept the Defendant's evidence that prior to changing the locks, she inspected the Little Bay property to ensure that the Plaintiff had left. 154In about November 2009, the Plaintiff's Visa card statement showed her address as a unit on Arden Street, Clovelly. 155The Plaintiff needed to ask for a key to the Little Bay property following the death of the deceased. 156It was not until after the death of the deceased, that the Plaintiff sought to have her mail redirected from her address at Blackheath to the Little Bay property. 157During the period after mid-August 2009, until the death of the deceased, I am satisfied that the Plaintiff and the deceased were not living together as a couple and that at the date of his death, she was not living with the deceased in a de facto relationship. 158Whilst there can be no doubt that the Plaintiff and the deceased were not married to one another or related by family, they did not, during this period, "live together as a couple". 159Importantly, after August 2009, I do not think that the deceased had a mutual commitment to a shared life. I doubt very much whether the Plaintiff did either. 160The Plaintiff has relied upon the fact that the deceased talked to her about marriage. However, there was no evidence of when such conversations occurred or their precise terms. It is highly unlikely that any such conversation took place after mid- August 2009. 161The Plaintiff also relied upon the fact that she and the deceased went to Phuket together in July 2009. However, even this holiday was punctuated by the Plaintiff returning to Sydney, after an argument, without the deceased, and then returning a few days later to conclude the holiday with him. 162Certainly, the DVD recording of 17 August 2009 suggests that the deceased, at that date, regarded the relationship with the Plaintiff as having ended. On 17 August 2009, he stated that he did not even want to see her. It appears that they resurrected some relationship thereafter, but even then, there were one, or two, more occasions when the Plaintiff left again. 163Interestingly, there is also no evidence of the reputation and public aspects of their relationship as a couple. There are no independent witnesses who give such evidence. The Plaintiff's husband, Stephen Bulcraig, gives evidence of being told by the Plaintiff that she was moving in with the deceased. However, he never met the deceased, although he spoke to the deceased on the telephone. 164Counsel for the Plaintiff submitted that, in determining the nature of their relationship, I must consider the Plaintiff's, and the deceased's, medical conditions. The deceased, in 2009, was, apparently suffering from depression. He was losing his peripheral vision; he had lost his driver's licence and was having difficulties doing his job. He was taking medication for depression (at least in August) and also, it would seem, ingesting steroids. The Plaintiff was also suffering from depression. She may have also suffered from bi-polar disorder. 165I have considered these conditions but there is no medical evidence that would enable me to conclude that the medical conditions of one, or both, caused the volatile nature of the relationship between the deceased and the Plaintiff. 166As I have earlier said, there is no dispute that the Plaintiff was a member of the household of which the deceased was a member throughout the period that she lived with the deceased, whether that was permanent, as she alleges, or at different times, as some of the evidence suggests. (b)the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate 167The question whether the expression "obligations and responsibilities" in the sub-section includes moral, or merely legal, obligations and responsibilities is not clear. In my view, the phrase was intended to include moral and legal obligations and responsibilities. 168The deceased did not have any legal obligation to the Plaintiff imposed upon him by statute or common law. 169On the other hand, the deceased did have obligations and responsibilities imposed on him in relation to his minor children. These were imposed, by law, during his lifetime. There is little doubt that he had a moral obligation to make provision that was adequate and proper for each of them out of his 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 170The deceased's estate is a reasonably large one. I have dealt with the nature and extent of that estate earlier. (d)the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate 171Although counsel for the Defendant suggested that I should not accept her evidence, I am satisfied that, at the present time, the only regular income that the Plaintiff receives is a weekly carer's pension ($231). Her weekly expenditure totals $229 per week. 172She may receive, occasionally, income from goods sold on consignment, which she purchased whilst she was working, or from the sale of personal items, but in my view, her income from this source appears to be neither consistent nor large. On any view, her income is not significant. 173The Plaintiff retains an interest with her husband in the Blackheath property. The property has a current estimated value of $380,000, although it is subject to a mortgage that secures a debt of $220,000. 174I accept Mr Bulcraig's evidence (which was not the subject of any challenge) that the Plaintiff ceased paying her share of the mortgage in about July/August 2009 and that they have agreed that upon sale, she will reimburse him for the amounts that he has paid on her behalf. The Plaintiff says that she will be required to pay him about $25,000. It may be closer to $33,000, if one calculates the amount at about $1,000 per month for 33 months. 175In addition, the Plaintiff has credit card debts of about $16,000. 176In relation to her needs, she says that if the Court makes provision for her, she plans to pay off her half of the mortgage and repay her husband for the monies that he has contributed towards the mortgage. She would also like to pay off credit card debts. She would also like to have a fund for contingencies of life, including to provide for superannuation. She believes that she has no way to plan for her future and/or retirement. 177During submissions, counsel for the Plaintiff submitted that the family provision order should be for a lump sum which was calculated as follows:

TOTAL: $158,000

178Although the Plaintiff gives evidence of a desire to get back into the work force and to start a small homeware boutique in the Blue Mountains, she accepted that, in the foreseeable future, considering her desire to care for her parents, which she does on a full-time basis, this is not a realistic alternative, at least at the present time. 179In relation to the beneficiaries, Jake is 10 years of age and Leilani is 8 years of age. They live with the Defendant. They are entitled to share the whole of the deceased's estate (subject to any family provision order made in these proceedings). At the present time, the Defendant pays all of their expenses. The Defendant gives evidence that her income (as at March 2011) is $48,524 per annum (from different sources but which does not include any income from the estate) and that her "fixed expenses", which include expenses for the children, amount to $40,559. She also says that those fixed expenses do not include regular maintenance for both the Chifley, or the Little Bay, property, or birthday and Christmas presents for, or some expenses of, the children. (e)if the applicant is cohabiting with another person - the financial circumstances of the other person 180The Plaintiff is co-habiting with her parents and with Mr Bulcraig in the Blackheath property. Her parents receive a pension, although the nature and amount of the pension is not disclosed in the evidence. Her parents assist her in paying "her personal bills". 181There is no evidence of Mr Bulcraig's financial circumstances. I have earlier stated that he assists the Plaintiff by making all of the repayments due under the mortgage secured on the Blackheath property. (f)any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated 182The Plaintiff's medical evidence is limited to the following: "Past History Asthma; Depression with stress after bereavement Fatigue Bipolar 1 disorder This is to confirm I have been looking after Angela for just under 3 years now. During this time she has been a regular attender and compliant with her medication. She presented during a difficult time in her life and has undergone various stressors affecting both her physical and mental well being. She has had to attend various specialists including The Black Dog Institute and Psychologist Beverley Sherwin." (g)the age of the applicant when the application is being considered 183The Plaintiff was born in May 1965 and is presently 47 years of age. (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 177 "Contributions" are not defined in the Act. However, as stated in the sub-section, what may be considered includes financial and non-financial contributions, including to the welfare of the deceased. 184There is no suggestion that the Plaintiff made any contribution (whether financial or otherwise) to the acquisition, conservation and improvement of the estate of the deceased. 185The Defendant appeared to accept that there was evidence that could lead the court to find that the deceased and the Plaintiff purchased some of the household chattels in the Little Bay property jointly (e.g. the vacuum cleaner). The Plaintiff, as I have stated, bought the bed. 186Whether or not she made any contribution to his welfare is difficult to determine because of the nature of her relationship with the deceased. However, I am prepared to accept, that, during the more harmonious periods of their relationship, she did. They would go fishing together on occasions. She tried to distract him from the problems that he was facing and the problems that he might face in the future. These matters suggest a concern by the Plaintiff for the deceased's welfare. 187Certainly, the cards given to the Plaintiff by the deceased (between February and May 2009) suggest that she made him happy. 188She also attended to the majority of the domestic duties. 189There is no suggestion that she received any "adequate consideration" for what she did. (There is no suggestion that allowing her to live in the Little Bay townhouse was in consideration of what she did.) (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 190The deceased did not make any specific provision for the Plaintiff during his lifetime or from his estate. She will only receive provision if a family provision order is made. 191She did not pay rent to him whilst she lived at the Little Bay property, although she did make some contribution to the cost of groceries and general shopping expenditure. (j)any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 192While this sub-section permits the court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the court to attribute any particular weight to that evidence, or to accept the deceased's statement as establishing the truth of what is asserted. 193The Plaintiff says that she and the deceased had no discussions about his testamentary intentions. She also accepts that "the deceased would have wanted his children to have everything he owned". 194This appears to be consistent with the deceased having told the Defendant "the only thing I care about is making sure that the kids get everything". (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 195There is no evidence that the Plaintiff was being maintained, either wholly or partly, by the deceased immediately before his death, although it is likely that on the occasions that she stayed with him at the Little Bay townhouse he did not charge her any rent or occupation fee. 196However, until August, I think that the deceased did make some contribution to partly maintaining the Plaintiff, although the extent of doing so, other than in respect of providing her with accommodation, is not entirely clear. (l)whether any other person is liable to support the applicant 194 Apart from the Commonwealth government's responsibility to continue to provide the Plaintiff with a pension, there is no other person with a liability to support the Plaintiff. (Perhaps, as her husband, Mr Bulcraig has such an obligation, but as I have stated, he is making all of the repayments under the mortgage.) (m)the character and conduct of the applicant before and after the date of the death of the deceased person 197I have dealt with the conduct of the Plaintiff earlier in the context of her relationship with the deceased. 198The aspects of the Plaintiff's conduct otherwise relied upon related to the sending of the letter to the deceased's mother and informing the deceased's employer of the deceased having brought back steroids from Phuket. It was submitted that the Plaintiff's conduct disentitled her from any family provision order out of the estate of the deceased. (n)the conduct of any other person before and after the date of the death of the deceased person 199I am satisfied that there is nothing in the conduct of the deceased's children, before, or after, the death of the deceased that is otherwise relevant. 200I have considered some of the conduct of the Defendant, but as she is not a beneficiary, it is unnecessary to refer to any of the complaints made about her by the Plaintiff. There is, however, one aspect of her conduct that should be noted. There is no dispute that on the day before the deceased died, the Plaintiff had been at the Little Bay townhouse with him. Earlier on the same day, the deceased's children had been there also. The Plaintiff apparently left later that evening or night and had driven to the Chifley home. The Plaintiff says that she went there as she needed a place to stay that night. The Defendant took her in and the Plaintiff did, in fact, stay that night at the Chifley home with the Defendant. 201Permitting the Plaintiff to stay at the Chifley home, it seems to me, is important because it demonstrates that there was likely to have been some continuing relationship between the Plaintiff and the deceased known to the Defendant. Whilst I have found that it was not then a de facto relationship, bearing in mind the history of their relationship, the Defendant would have been unlikely to permit the Plaintiff to stay the night, if there was no continuing relationship at all between the Plaintiff and the deceased. (o)any relevant Aboriginal or Torres Strait Islander customary law 202This is not relevant in the present case. (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 203There are no other matters that I consider relevant.

Determination 204The first question to be answered is whether I am satisfied that the Plaintiff is an eligible person. As I have stated above, I am not satisfied that she was living in a de facto relationship with the deceased at the date of his death. Accordingly, she is not an eligible person under s 57(1)(b) of the Act. 205I am, however, satisfied, that the Plaintiff was a member of the household of which the deceased was a member. The real dispute was whether she was partly dependent upon the deceased. (The Plaintiff did not suggest that she was wholly dependent upon the deceased.) 206In this regard, the Plaintiff, principally, relied upon the deceased providing her with accommodation during the period between at least the end of January and the middle of August 2009, for which she was not required to pay any rent or occupation fee. 207Whilst the fact that the Plaintiff was required to pay no rent or occupation fee was not in dispute, counsel for the Defendant submitted that this did not amount to partial dependency because the Plaintiff did not "need" accommodation to be provided by the deceased, since she retained her own room in the Blackheath property of which she was a joint owner and because she could return there at any time to live. 208I do not accept the Defendant's submission and refer to the statement of Samuels JA in Ball v Newey quoted above. In addition, I am satisfied that the deceased regarded the Plaintiff's non-payment of rent, or an occupation fee, as an important matter and that accommodation, rent and occupation fee free, was something that he provided to her. He raised it, explicitly, in the record of interview. 209Even if I am wrong, I am satisfied that the Plaintiff was, at least partly, emotionally dependent upon the deceased. This is demonstrated by what followed the events of 16 August 2009. The deceased went to Blackheath to see the Plaintiff. The Defendant's evidence about this event was that the deceased told her that she should trust him and that he needed to "calm down" the Plaintiff. She said that the deceased's statement was in the context of the deceased wishing the apprehended violence order to be "dropped". That he felt that he was able to calm the Plaintiff demonstrates that he considered that she was, at least, partly emotionally dependent on him. 210If that were not enough, some of the text messages clearly demonstrate that the Plaintiff was seeking emotional support and succour from the deceased. Her conduct in giving the impression that she was going to commit suicide (when she returned from Phuket without the deceased), even if she then had no such intention, in my view also suggests that she was dependent upon the deceased and was relying upon him. 211I am, therefore, satisfied that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(e) of the Act. 212It follows that the Plaintiff must next establish factors that warrant the making of the application. Counsel for the Plaintiff submitted, in the event that I found that the de facto relationship did not exist or that it had ended before the deceased's death, that such factors included, first, that the Plaintiff had been the de facto spouse of the deceased, for about eight months; second, that, throughout that period, the Plaintiff had been, at least partly, both financially and emotionally dependent upon the deceased; third, that in the three months following, the Plaintiff and the deceased, even if no longer in a de facto relationship, had maintained a close and, at times, affectionate relationship, keeping in communication; and fourth, the medical conditions of each of the Plaintiff and the deceased. 213I accept that the first and the third factors referred to are factors which warrant the making of the Plaintiff's application. I would have considered the fourth fact relevant had there been evidence that it was the medical condition of one, or both, of them that caused the volatility of their relationship. 214Having found eligibility and factors warranting the making of the Plaintiff's application, I turn, first to consider, whether, at the present time, adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the deceased, or by his Will. 215When one considers the Plaintiff's financial situation, and her lack of any capital sum for exigencies of life, whilst a lump sum, by way of advancement in life would be of benefit to her, that is not all that I am required to consider at the first stage of the enquiry. 216Taking into account all of the matters that I am required to consider, including what I have found to be the size and nature of the estate, the relationship between the Plaintiff and the deceased, the relationship between the deceased and his children (the persons who have a legitimate (and in this sense competing) claim upon the deceased's bounty), as well as the provision made for each during the deceased's lifetime, I am satisfied that the provision for the Plaintiff is inadequate and that she has satisfied the jurisdictional question. 217To allow a small lump sum to pay her credit card debts and to provide for exigencies of life will not impact, significantly, on the provision made for the deceased's children. In this regard, it may be that the Defendant will succeed in a claim to recover the rent that has not yet been paid to the estate, or at least a part of it. This would increase the estate available for distribution. 218The Plaintiff's financial position is such that she does not have any amount available as a buffer for exigencies of life. Bearing in mind the net value of the Blackheath property, and the amount that the Plaintiff has agreed to repay her husband, she lacks any real reserves to meet demands, particularly of ill health, as she grows older. 'Need' in the context of the Act is not determined by reference only to minimum standards of subsistence. 219I turn now to the second stage, namely whether a family provision order should be made, and the nature of any order that should be made for the Plaintiff. I am satisfied, as a matter of discretion, that an order for a lump sum should be made in her favour. In my view, that lump sum should enable her to repay her debts ($16,000) and provide a modest lump sum of $34,000 for exigencies of life. In total, the lump sum that should be provided out of the estate of the deceased is $50,000. 220The Defendant requested, without opposition from the Plaintiff, a short opportunity to consider how she would satisfy any lump sum order that may be made. I shall stand the proceedings over to enable the parties to reach agreement on how the lump sum is to be paid to the Plaintiff and what costs orders should be made. 221Of course, if agreement cannot be reached on either aspect, I shall hear further argument. 222The orders that can be made at this time are: (i)Having found that the Plaintiff is an eligible person, and being satisfied that there are factors warranting the making of her application and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she receive out of the estate of the deceased, a lump sum of $50,000. (ii)No interest is to be paid on the lump sum if that lump sum is paid within 28 days of the making of these orders or within such other time as the parties agree or the court otherwise orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment. (iii)The costs of the parties shall be determined after further submissions unless agreement is reached between them. (iv)Further consideration with respect to orders for the purpose of giving effect to the family provision order made in favour of the Plaintiff be reserved. (v)Stand the matter over to a convenient date to the parties to further consider orders for the purpose of giving effect to the family provision order made in favour of the Plaintiff and for any argument as to costs. (vi)The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the matters referred to in order (v) above.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2012