27 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.
28 The defendants did not suggest that Victor would not fall within the definition of factors warranting in the ordinary case but merely suggested, in respect of Peter, there were not sufficient factors warranting. Plainly, of course, Victor lived with the deceased and his mother for quite some time. He was looked after by him as a son after his motor vehicle accident. He adopted his father's name and those matters make it obvious that he would be the person in respect of whom factors warranting would be established.
29 In relation to Peter, he talked in his affidavit at paragraph 11 about the period from 1966 to 1970, when he mainly lived at Scrivener Street, O'Connor and was dependent upon his stepfather and mother. That puts Peter at that stage, when he went there, about age ten. He says he was nine years old when he moved in there and started year 10 at school. In his affidavit, paragraph 12, he talks about a time between when he was 11 and 13, when he was living there, that he ran away from home, about six times, sometimes for weeks at a time.
30 As a result of that conduct in 1970 he spent eight months in a reform school in Windsor. He moved to Sydney for a while but he also told the Court in paragraph 16 about the period from 1970 to 1973, when his stepfather and mother were supportive as they apparently visited him at Kenmore and dealt with the doctors who were looking after the psychiatric care for Peter at that stage when he was in Kenmore Psychiatric Hospital at Goulburn, which is not far from Canberra.
31 He also says he lived at home in 1974 until he moved to Sydney. Then in 1976 to 1977 he returned to Canberra and lived at home until he moved into a group home. Thereafter he would continue to visit his parents. He says that between 1985 and 1990 he kept in touch with his stepfather by phone but eventually he only would be phoning about once every six months.
32 He also says in the year 2000 he changed his name to Marshall. The evidence does not show that this was with his stepfather's concurrence or knowledge but it was before his stepfather died. One thus has a period where Peter had a very unsatisfactory childhood but he was a child of the family. They were in those years endeavouring to look after him, no doubt to the best of their ability, but with little success.
33 The fact that it was such a difficult childhood, does not, I think, detract from the fact that he was regarded as a son and the stepfather and the mother took the responsibility for him, particularly later when he had psychiatric problems. They took an interest in his psychiatric care. In those circumstances I think that there are factors warranting for Peter in respect of the more traditional approach and I will also consider whether there are likely prospects of success.
34 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a court must take. At page 209 it said the following:
"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or 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 applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims jupon 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 inadequate 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. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors".
35 I turn to consider the plaintiff, Victor's, situation in life. Victor is 59, single and has no dependents. His present circumstances are not very happy. He has had a failed marriage and a failed de facto relationship. He is, at the age of 59, still working as a bricklayer and that is becoming more and more a problem for him because he has knee and back problems.
36 He has basically no assets and he lives from hand to mouth on what he can earn as a bricklayer. Apparently last year he had a taxable income of $15,000. He has a tax debt which is in the amount of $27,742.51 and he is still trying to repay that. He has no savings, does not own any property and he lives in rented property in Hayes Street, Queanbeyan.
37 He has to pay rent of $700 a month to his former de facto partner who owns the property. How long he will be able to stay there is something of a mystery and perhaps it will not be very long because she apparently wants to sell the property. He tries to support his children and grandchildren if he can. He has no prospects of retirement and just has to continue working as a bricklayer.
38 He has developed thyroid problems and Graves Disease and, as a result, has lost a lot of weight. That affects his liver. He also has suffered some depression recently and he is now being treated for that condition. He is on anti-depressant medication and has contact with Queanbeyan Mental Health Department. This has apparently been with him for some years.
39 In Victor's case there are some substantial contributions to the estate. He sets these out and I have already referred to them as being the pouring of the concrete and doing the brickwork at the deceased's house. He apparently kept on doing that for too long and nearly went bankrupt. He eventually had to stop and go back to work. There seems to have been a good relationship between him and the deceased.