McGEOUGH v IAN TORRINGTON BLATCHFORD as Administrator of the Estate of MARGARET MARY McGEOUGH

4 The primary judge held that Rory McGeough had made out his claim. Her Honour made orders varying the Will to make further provision for Rory McGeough.

5 Her Honour dismissed the appellant's claim. The appellant has not appealed against that dismissal.

7 Ground 1 alleges, in essence, that the primary judge erred in finding that Rory McGeough had satisfied the jurisdictional question under the Act because Rory McGeough did not adduce any evidence of his financial circumstances as at the date of the Deceased's death, and consequently he did not discharge his evidential onus.

8 Ground 2 alleges, in essence, that her Honour erred in finding that Rory McGeough had satisfied the jurisdictional question under the Act because 'it was not reasonable to find that [Rory McGeough] was not capable of work given that it was a finding against the weight of the evidence'. It is apparent that the error referred to in ground 2 does not relate to the jurisdictional question, but rather to her Honour's exercise of discretion as to what further provision should be made for Rory McGeough. At the hearing of the appeal, counsel for Rory McGeough accepted that ground 2 should be understood in that manner. That was appropriate having regard to the appellant's status as a self-represented litigant.

9 We are satisfied, for the following reasons, that neither of the grounds of appeal has been made out. The appeal must be dismissed.

10 On 9 May 2015, the Deceased died at the age of 91. She was a widow. Nine children, each of whom was an adult, survived her.

11 On 29 March 2011, the Deceased made her last Will.

12 By her Will, after payment of debts, funeral and testamentary expenses, the Deceased directed that the whole of her real and personal estate should be divided into 100 equal parts and distributed as follows:

(a) 10% of the estate was to be divided equally among seven of her surviving children (namely Rory McGeough, Breffni John McGeough, Brian Patrick McGeough, Paul Joseph McGeough, John Martin McGeough, Noel Brendan McGeough and Mary McGeough), so that each of them received about 1.43% of the estate; and

(b) 90% of the estate to her other two children (namely the appellant, James McGeough, and the third respondent, Una Mary Rand), so that each of them received 45% of the estate.

13 The executors appointed under the Will renounced their appointment.

14 On 7 November 2016, letters of administration with the Will annexed were granted to the first respondent.

15 As at the date of the Deceased's death, the total value of her estate was $567,298.11. The value of the estate was depleted by disputes that arose in connection with the appointment of an administrator and the validity of the Will. Eventually, proceedings relating to those disputes were settled.

16 As at 15 April 2019, the net value of the estate was $356,129.31 (plus interest that had accrued since 28 February 2019).

17 On 21 March 2017, Rory McGeough filed an originating summons in which he applied for orders for adequate provision to be made out of the Deceased's estate for his proper maintenance or advancement in life.

18 The primary judge recounted in her reasons that the Deceased's husband died suddenly when their children were young. The appellant is the eldest child, having been born on 9 June 1949. Rory McGeough is the middle child, having been born on 2 September 1956. The third respondent is the youngest child, having been born on 14 April 1961.

19 At the hearing, Rory McGeough gave evidence as to his financial circumstances. Her Honour summarised his evidence as follows [56] ‑ [77] and [80] ‑ [85]:

At the time of giving evidence Rory was 62 years old. He married Stephanie in or about July 1980 and they have three adult children.

Their daughter, Jessica, was born on 22 October 1989 and has been, at all material times, financially independent. Rory and Stephanie's son, Samuel, was born on 15 October 1991 and has been financially independent since January or February 2019. Rory and Stephanie's second son, Liam, was born on 30 December 1998. Liam is a second-year university student at Curtin University and is financially dependent on Stephanie and Rory, but has a part-time job.

Rory was formerly a carpenter having completed a carpentry apprenticeship in the early 1970s. For the majority of his working career, he had been self employed as a carpenter/handyman. From 1998 until 2010 he lived in Margaret River. He started his last business enterprise in 2005 (in partnership with Stephanie) as a distributor of safety products and/or first-aid kits (Pronto Safety). In late 2010 they sold their property in Margaret River and wound up Pronto Safety having sold all of the stock in a fire sale for approximately $10,000. In 2010, they moved to a rental property in Mullaloo near [the Deceased's] home. Whilst living in Perth, in 2010 and 2011, Rory and Stephanie did not work.

Nor did Rory or Stephanie work for the two years whilst they lived in Spain. During that time they exhausted most of their combined life savings. Rory says that when he and Stephanie separated at the end of 2013 she resumed full time employment as a nurse in Perth and rented a house in Kallaroo.

In the period Rory was in Indonesia, from November 2013 to November 2014, he was not paid a wage but he did receive free room and board by friends in exchange for assisting his friends to establish tourist accommodation websites and the preparation of associated promotional marketing material. During this time, Rory received and continued to receive a small monthly fee of approximately $80 per month until early 2017 for the marketing of the websites in Indonesia associated with his friends' business.

In about November 2014, Rory came back to Perth to have his plastic left eye implant removed and a new implant fitted as the old implant had become too uncomfortable to live with and he was unable to obtain medical treatment in Indonesia.

Rory claims that since returning to Perth in November 2014, he has had four operations which included:

(a) an attempt in approximately November 2014 to repair the plastic implant in his left eye and close an open wound on the interior eye socket;

(b) removal of the implant and insertion of a fat graft into his left eye socket in or about February 2015;

(c) a hernia repair operation in or about November 2015; and

(d) after a failure of the fat graft, the insertion of a hydrogel expander into the left eye cavity on 7 September 2016.

As a result of his various medical conditions and his relationship breakdown (with Stephanie) Rory says he suffers from depression and was on a mental health plan. Whilst Rory has not, in these proceedings, produced any medical reports, he has produced an undated medical certificate signed by Dr Yusof Mutahar who practices at Whitfords Avenue Medical Centre which records:

(a) that he examined Rory on 26 August 2016;

(b) Rory was unfit for work from 26 August 2016 to 26 November 2016;

(c) Rory was unlikely to be able to work at least eight hours a day or return to study for three to six months; and

(d) Rory's diagnosis of depression and melanoma left eye.

Rory's evidence is that the last surgery he had on his eye socket has been successful and by July 2018 his eye socket and implant in his reconstructed eye socket had stabilised.

Since Rory's return to Perth in November 2014, Rory has been unable to obtain employment. He does not own a car. When he returned he lived on the remainder of savings for a short time. When these funds ran out he was supplied funds by friends and family. His brother, John, has gifted him $15,000 since 2010 and his mother in law in Canada gifted him approximately $10,000 in November 2013.

When Rory returned to Perth in November 2014, Stephanie gave him non financial support by allowing him to live in, and continue to live in, the shed at the rear of Stephanie's rented premises in Kallaroo. Rory says that Stephanie allows him to live in the shed as she knows he cannot afford to live elsewhere. Rory's arrangement with Stephanie is that he contributes to household expenses, such as payment of utilities with payments of cash and/or groceries, and/or gardening duties and any maintenance issues on the rental property.

Rory had a motorcycle accident in 1979 and suffered a broken femur, which left him with a right leg 30 mm shorter than his left leg and a lopsided gait. As a result he walks with a pronounced limp and has done so for many years. He has pain in his hips from walking as a result of his limp and requires specialised footwear and/or specially suited orthotics to provide a lift to his right leg and foot.

In January 2019, Rory obtained a quote from Dr Mina Azarian, a podiatric surgeon, for refurbishment of his old orthotics for $150 to $200, or new orthotics at a cost of $1,940.

Rory claims that as a result of the loss of his eye in 2010, he can no longer read a tape measure easily and it is dangerous for him to use power tools because of a loss of depth perception. His right leg limp also limits his ability to undertake employment involving prolonged standing or walking.

Although Stephanie and Rory separated in late 2013, they have not divorced. Rory claims that when they separated they split their remaining life savings equally and he took approximately $10,000 to Indonesia, which was an amount that Stephanie's mother had gifted to him when she was informed of their decision to separate. Rory claims that since the time of their separation in 2013, he and Stephanie have had entirely separate finances.

As at the date of [the Deceased's] death, on 9 May 2015, Rory says his only income was the websites income of $40 a fortnight. His fortnightly expenses totalled $588.50, being grocery shopping of $300; pre-paid telephone $20; Samuel's telephone bill $43.50; public transport $10; Liam's telephone bill $23.50; entertainment/miscellaneous shopping/clothes/shoes/etc $150; medical bills/medications/etc $30; and IT programmes/website registrations etc $40.

At that time, Rory had a Fines Enforcement Registry debt of $2,000; savings of $2,000; and personal effects worth $1,500. He had no superannuation and no substantive assets.

At least by 5 October 2016, Rory was in receipt of a Newstart allowance (of $518.70 per fortnight).

In or about February 2017, Rory commenced a course in web design at TAFE and became a full-time student. Rory completed this course at the end of 2018. He obtained a VET loan to assist him to undertake the course. Rory commenced this course because Centrelink job search counselling had assisted him to recognise that he needed to retrain as a result of his left eye and his right leg problems, and whilst in Indonesia he had set up websites for surf camps, as a result of which he became interested in web design.

As at 21 March 2017, and 12 November 2018, Rory had fortnightly expenses of $608.50. The only substantial changes in expenditure since the death of [the Deceased] are that Rory no longer contributes to the telephone accounts of both of his sons; he no longer receives any income from website registrations; he has paid off the Fines Enforcement Registry debt; his personal mobile telephone costs are lower; and he now estimates that he contributes about $100 a week for food and utility bills to be consumed in Stephanie's household. He also contributes $40 a fortnight to payments owing to Sacred Heart College for Liam's school expenses incurred in 2016.

As at 24 January 2019, Rory had:

(a) savings in a Westpac Choice savings account of $100 and estimated personal effects valued at $1,000; and

(b) liabilities of $85,112.39. These are the debt to Sacred Heart College estimated to be $3,901.11; a personal loan from his brother, John, for legal fees of $29,744; outstanding legal fees of $49,131.83 for these proceedings; and a VET loan for TAFE fees of $2,335.45.

At the time of giving evidence, Rory had not been successful in obtaining employment in the field of web design.

...

Rory does not dispute that he is still married to Stephanie, but says they remain separated.

No bank or other records have been produced by Rory that cover the period of time from after he returned from Indonesia in November 2014 to September 2016, including for the time of his mother's death in May 2015. Rory has, however, produced bank statements which show deposits and withdrawals from his Westpac Choice account from 1 September 2016 to 24 August 2018.

These bank statements reveal that:

(a) the only deposits of substance in that account are Centrelink Newstart allowance payments; and

(b) all withdrawals during that period are for small amounts of cash or for modest amounts for items which appear to be largely for food and beverages.

At the time of [the Deceased's] death, Rory states on affidavit that his only source of income was from his website business of $40 a fortnight. He states that his fortnightly expenses were in the order of $588.50 and he was in significant debt. It is to be noted that the only evidence before the court of these matters is what Rory states in his affidavit material and there is no substantive material annexed to those affidavits that goes to establishing what Rory contends his financial position to have been at the time of [the Deceased's] death.

This issue was put to Rory in cross‑examination. It was also put to Rory in cross‑examination that he had failed to include in his affidavit evidence about the joint account with his wife in January 2014.

When re-examined, Rory said that:

(a) he and Stephanie separated at Christmas 2013 and the money in the ANZ account in January 2014 (being $20,000) was equally split between them; and

(b) the joint account is not maintained by him, and since they split the funds in the ANZ account it has been solely maintained by Stephanie and may have been closed. (emphasis added) (footnotes omitted)

20 The primary judge decided that Rory McGeough's evidence as to his financial circumstances should be accepted. Her Honour said [87] ‑ [88]:

Whilst Rory's evidence about his financial circumstances is not supported by financial records, I accept Rory's evidence about his financial circumstances. He has produced bank records showing his financial circumstances since September 2016. Clearly on this evidence his financial circumstances are dire.

I am satisfied, on the balance of probabilities, that (as at the date of [the Deceased's] death) the financial position advanced by Rory is an accurate reflection of his financial position at that time. (emphasis added)

21 Her Honour concluded that the Will did not make adequate provision for Rory McGeough's proper maintenance, support or advancement in life [133]. Her Honour explained [138]:

At the time of [the Deceased's] death, Rory had recently had surgery (about six months before) to his left eye socket and his left eye socket had not yet stabilised. He was separated from Stephanie and had not been in paid employment substantially since he wound up his business in 2010. He had no assets, no superannuation and no savings. It seems to be the case that Rory was not at that time in receipt of any social security payments and was reliant on the financial support of family and friends.

22 The primary judge said that, as she had found that the disposition of the Deceased's estate was not such as to make adequate provision for Rory McGeough's proper maintenance and support, her Honour must proceed to exercise the discretion to make such provision, 'taking into account the relevant facts as they now exist' [143].

23 Her Honour made these findings in the course of deciding the nature and extent of the further provision for Rory McGeough that should be made out of the Deceased's estate [151] ‑ [157]:

Rory presently has an income of approximately AU$15,110 per year from his Newstart allowance; has effectively no assets; substantial debt, being legal fees of approximately AU$131,000 (for legal fees in bringing these proceedings (inclusive of loans from John to pay those fees)); a debt to Sacred Heart College of approximately AU$3,900; and a VET loan of AU$2,335. These amounts total AU$138,235.

The adequacy of provision is not to be considered only by [the appellant's] needs and his capacity to meet them, but also by the other demands on the estate and in light of the size of the estate. Rory has no ability to meet any part of the legal expenses incurred in these proceedings together with the other debts that he owes. Rory's financial position is, in fact, dire. Without the support of Stephanie by the provision of accommodation he would not be able to meet his very modest living expenses. Given that he has been substantially unemployed since 2010 and whilst he recently obtained a TAFE certificate in web design, I accept that he is unlikely to gain employment now or in the future. Whilst it now appears that Rory's lifetime will not be shortened, I accept that it is difficult, because of his physical impairment to his right leg and only having one eye, for him to obtain work in his previous occupation as a carpenter or handyman.

[The third respondent's] financial position can, at best, only be described as modest. However, she appears to be in a better long term financial position than [the appellant] and Rory.

[The appellant] appears fit and well, and currently has the capacity to earn an income in China. However, it is not clear on the evidence how long that can continue.

[The appellant] is critical of Rory's evidence about his health and his capacity to work. He disputes that Rory has limitations on his capacity to work because of his right leg injury or his eye surgery. However, these criticisms are misplaced. [The appellant] does not contend that Rory did not sustain a leg injury, but claims that there is no evidence before the court upon which it could be found that Rory had cancer (melanoma in his eye). The proposition advanced by [the appellant] is not correct. Rory has produced a medical certificate, which I accept as evidence that he did have a melanoma removed from his left eye. However, [the appellant] does not dispute that Rory had his left eye removed in 2010.

I found Rory to be a credible witness. I do not find that there is any inconsistency in Rory's evidence about his capacity for work, or the type of work that he can now carry out. Rory is now 63 years of age. I also accept that Rory thought, after his initial diagnosis in 2010, that he then only had a life expectancy of about two years, which was ultimately not the case. Further, I accept that given the lapse of time since his diagnosis in 2010 without reoccurrence Rory can expect to live and does expect to live a reasonably long life. However, irrespective of whether Rory did, or did not, have a diagnosis of melanoma, he has lost one of his eyes which has resulted in him being unable to work in his previous occupation as a carpenter.

Rory will not receive a Centrelink Age Pension until he attains the age of 66 and six months (on 2 March 2023). He will only receive a pension of $24,268.40 per year (assessed as at the rate applicable in 2019). This is approximately $6,000 less per annum than [the appellant] is already entitled to from his Australian and USA pensions combined. (emphasis added) (footnotes omitted)

24 The primary judge determined that provision for Rory McGeough under the Will should be increased to $150,000 (inclusive of the existing provision). Her Honour gave effect to that determination by reducing the provision that had been made for the appellant and the third respondent under the Will.

25 The applicable legal principles, for the purposes of this appeal, are well established. Buss P summarised those principles in Lemon v Mead.[1]

By s 6(1) of the Act, the court is required to carry out a two-stage process.

The first stage involves the determination of whether the disposition of the deceased's estate effected by will or the law relating to intestacy is not such as to make adequate provision from his or her estate for the proper maintenance, support, education or advancement in life of the claimant. The first stage has been described as the 'jurisdictional question', which means no more than that the court's power to make an order in the claimant's favour is conditioned upon the court first being satisfied of the state of affairs referred to in the opening passage of s 6(1), ending with the words 'made under this Act'. See Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 208 ‑ 209 (Mason CJ, Deane & McHugh JJ); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [4] ‑ [6] (Gleeson CJ), [56] (Gummow & Hayne JJ).

The first stage involves a question which is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision arises from the fact that the court must determine whether the claimant has been left without 'adequate' provision for his or her 'proper' maintenance, etc. See White v Barron [1980] HCA 14; (1980) 144 CLR 431, 441 ‑ 443 (Mason J), 456 ‑ 457 (Wilson J); Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 509 (Aickin J); Singer (210 ‑ 211) (Mason CJ, Deane & McHugh JJ).

The second stage, which only arises if the 'jurisdictional question' is determined in the claimant's favour, involves the exercise of discretion: the court may order that such provision as the court thinks fit be made out of the deceased's estate for the proper maintenance, etc, of the claimant. See White (442 ‑ 443) (Mason J), (449) (Aickin J); Goodman (501 ‑ 502) (Gibbs J), (509) (Aickin J); Singer (211) (Mason CJ, Deane & McHugh JJ).

The question which arises at the first stage must be formulated and determined as at the date of death of the deceased, having regard to all material facts that existed at the date of death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts. See Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 508 (Dixon CJ), 515 ‑ 516 (Webb J), 526 ‑ 528 (Kitto J); Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 147 ‑ 148 (Gibbs J); White (437) (Barwick CJ), (441) (Mason J), (448 ‑ 449) (Aickin J); Goodman (498 ‑ 499) (Gibbs J).

In Coates, Dixon CJ observed that, in determining the question which arises at the first stage, the court must look to what is 'necessary or appropriate prospectively' from the date of death, including events which are contingent as well as those which are certain or exceedingly likely to happen (508). Advantage may be taken of hindsight if the subsequent occurrences are within 'the range of reasonable foresight' (508). See also White (441) (Mason J).

At the second stage the court exercises its discretion to order adequate provision for the proper maintenance, etc, of the claimant by reference to the circumstances as they exist at the date of the order. See Coates (509) (Dixon CJ); White (441) (Mason J); Goodman (499) (Gibbs J).

In Bosch v Perpetual Trustee Co Ltd [1938] AC 463, Lord Romer (delivering the advice of the Privy Council) observed that the discretionary power given to the court at the second stage 'must always be one of great difficulty and delicacy' and 'must always be one largely of guess work, especially in a case ... which is concerned with children of tender age of whose needs in the future nothing can be predicted with any certainty' (483).

The discretionary power conferred by the Act at the second stage is to interfere with a deceased's dispositions when he or she has left a claimant without adequate provision for his or her proper maintenance, etc. The court is empowered to order such provision from the deceased's estate as the court thinks fit, but the court is not empowered to award more than what is 'adequate' provision for the claimant's 'proper' maintenance, etc. See Coates (509) (Dixon CJ); Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 134 (Fullagar & Menzies JJ). Those propositions are derived from the statutory text. In particular, the words 'for that purpose' at the end of s 6(1) refer to the purpose identified earlier in s 6(1), namely ensuring that 'adequate' provision is made from the deceased's estate for the claimant's 'proper' maintenance, etc. The text and purpose of s 6(1) qualify the court's power at the second stage. The power is confined by the text and purpose to the making of orders which will ensure that 'adequate' provision is made from the deceased's estate for the claimant's 'proper' maintenance, etc.

27 In Lemon [60] ‑ [69], Buss P referred to the distinction between the word 'adequate' and the word 'proper' in the text of s 6(1) of the Act.

28 We are satisfied that the primary judge correctly identified and properly applied the applicable legal principles.

29 Her Honour made comprehensive findings of fact in relation to Rory McGeough's financial position having regard to the whole of the evidence before her.

30 The primary judge found, at [83] of her reasons, that as at the date of the Deceased's death Rory McGeough's income was $40 per fortnight, his expenses were $588.50 per fortnight and he had accrued a significant debt. Also, her Honour found, at [152] of her reasons, that Rory McGeough had been 'substantially unemployed since 2010'. Further, her Honour found, at [66] of her reasons, that since November 2014 Rory McGeough had lived in a shed at the rear of his estranged wife's (Stephanie's) rented residential premises in Kallaroo.

31 Her Honour found, at [87] of her reasons, that, while Rory McGeough's evidence about his financial circumstances was not supported by financial records, her Honour accepted his evidence about his financial circumstances. Her Honour found, at [87] of her reasons, that it was clear, on his evidence, that Rory McGeough's financial circumstances were dire.

32 The primary judge found, at [88] of her reasons, on the balance of probabilities, that as at the date of the Deceased's death 'the financial position advanced by Rory is an accurate reflection of his financial position at that time'.

33 All of the findings to which we have referred at [30] ‑ [32] above were reasonably open to her Honour on the evidence as a whole. Those findings were informed, to a material extent, by her Honour's advantage in having seen and heard Rory McGeough and the other witnesses (namely, the appellant and the third respondent) give their evidence. Her Honour found that Rory McGeough was a credible witness [156]. There is no basis for supposing that her Honour may have misused her advantage. See Robinson Helicopter Co Inc v McDermott.[2]

34 The appellant referred to New South Wales authorities which hold that it is incumbent on an applicant for relief under family provision legislation in that State to disclose to the court, as fully and frankly as possible, the whole of his or her financial situation at the relevant time.[3] It may be accepted that the absence of satisfactory evidence as to significant aspects of an applicant's financial circumstances at the date of the deceased's death might, depending on the circumstances, preclude a finding that the jurisdictional question is satisfied. However, in the present case, Rory McGeough's evidence did describe the whole of his financial situation. The appellant's central complaint is not as to the completeness of the picture painted by Rory McGeough's evidence, but the absence of documentary evidence supporting aspects of that evidence. That complaint is made in a context where Rory McGeough's evidence was not entirely lacking in documentary support and the appellant does not point to any particular evidence in the primary proceedings which is inconsistent with Rory McGeough's evidence

35 In all the circumstances of the present case, her Honour was not precluded from holding that Rory McGeough had satisfied the jurisdictional question because his oral evidence concerning his financial position as at the date of the Deceased's death was not corroborated or supported by documentary evidence. Her Honour was entitled to conclude that the Will did not make adequate provision for Rory McGeough's proper maintenance, support or advancement in life within s 6(1) of the Act, as at the date of the Deceased's death, having regard to her Honour's findings as to the relevant facts and circumstances that existed at the date of death (whether the Deceased knew of them or not) and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts.

37 The primary judge made a number of findings that were, directly or indirectly, relevant to Rory's McGeough's capacity to work:

(a) Rory McGeough was born on 2 September 1956 [25].

(b) In late 2011, Rory McGeough and his then wife (Stephanie) and their son (Liam) left Australia for Spain. They went to Spain for two reasons. First, in or about April 2010 Rory McGeough's left eye was surgically removed consequent upon his having been diagnosed with choroidal melanoma in his left eye. At the time, Rory McGeough was informed by his doctors that there was a high prospect of recurrence of the melanoma. Rory McGeough and Stephanie sold their property in Margaret River and wound up the business they had been carrying on. The business had been struggling for some time. They had over extended their house mortgage to keep the business afloat. After selling up, they initially moved to Perth and rented a house. They moved to Spain in late 2011. The second reason was that Liam wished to enrol in the Spanish tennis academy, which he did [39].

(c) Rory McGeough and Stephanie lived in Spain for two years with their children. During this period they did not work and largely exhausted their savings [41].

(d) In about November 2013, Rory McGeough and Stephanie separated. Stephanie returned to Perth in 2013. Rory McGeough went to Indonesia where he lived from November 2013 until November 2014. He returned to Perth in November 2014 [42].

(e) Rory McGeough was aged 62 when he gave evidence. He had married Stephanie in or about July 1980 and they have three adult children [56].

(f) Rory McGeough completed a carpentry apprenticeship in the early 1970s. For the majority of his working career, he had been self employed as a carpenter/handyman. From 1998 until 2010 he lived in Margaret River. As I have mentioned, in late 2010 Rory McGeough and Stephanie sold their Margaret River property and wound up the business they had been carrying on. In 2010 and 2011, while they were living in Perth, Rory McGeough and Stephanie did not work [58].

(g) When Rory McGeough and Stephanie separated at the end of 2013, Stephanie resumed fulltime employment as a nurse in Perth and rented a house in Kallaroo [59].

(h) Between November 2013 and November 2014, when Rory McGeough was in Indonesia, he was not paid a wage. He did, however, receive free room and board from friends in exchange for assisting the friends to establish tourist accommodation websites and preparing associated promotional marketing material [60].

(i) In about November 2014, Rory McGeough returned to Perth to have his plastic left eye implant removed and a new implant fitted [61].

(j) Since returning to Perth in November 2014, Rory McGeough has had four operations [62].

(k) According to Rory McGeough, as a result of his various medical conditions and his relationship breakdown with Stephanie, Rory McGeough suffers from depression [63].

(l) The last surgery Rory McGeough had on his eye socket was successful and by July 2018 his eye socket and implant had stabilised [64].

(m) Since returning to Perth in November 2014, Rory McGeough has been unable to obtain employment. He does not own a car. When he returned to Perth he lived on the remainder of his savings for a short time. When those funds ran out he was supplied with funds by friends and family [65].

(n) When he returned to Perth in November 2014, Stephanie permitted Rory McGeough to live in a shed at the rear of Stephanie's rented premises in Kallaroo. In return, Rory McGeough contributed to Stephanie's household expenses, such as payment of utilities, carrying out gardening and attending to maintenance of the rented premises [66].

(o) Rory McGeough had a motorcycle accident in 1979 and suffered a broken femur. As a result, his right leg is 30 mm shorter than his left leg. He has a lop-sided gait and walks with a pronounced limp [67].

(p) According to Rory McGeough, as a result of the loss of his left eye in 2010, he can no longer read a tape measure easily and it is dangerous for him to use power tools because of a loss of depth perception. His right leg limp also limits his ability to undertake employment involving prolonged standing or walking [69].

(q) According to Rory McGeough, when he and Stephanie separated in late 2013 they split their remaining life savings equally and he took about $10,000 to Indonesia. Since their separation in late 2013, he and Stephanie have had entirely separate finances [70].

(r) At least by 5 October 2016, Rory McGeough was in receipt of a Newstart allowance [73].

(s) In about February 2017, Rory McGeough commenced a course in web design at TAFE and became a fulltime student. He completed the course at the end of 2018 [74].

(t) When he gave evidence on 29 April 2019, Rory McGeough had not been successful in obtaining employment in the field of web design [77].

38 Her Honour made these findings as to Rory McGeough's capacity to work:

(a) At the time of the Deceased's death, Rory McGeough had recently had surgery to his left eye socket and his left eye socket had not yet stabilised; Rory McGeough was separated from his wife, Stephanie, and had not been in paid employment substantially since he wound up his business in 2010; Rory McGeough had no assets, no superannuation and no savings; Rory McGeough was not at that time in receipt of any social security payments and was reliant on the financial support of family and friends [138].

(b) Rory McGeough had been substantially unemployed since 2010 and, while he had recently obtained a TAFE certificate in web design, Rory McGeough was unlikely to gain employment now or in the future [152].

(c) Although it appears that Rory McGeough's lifetime will not be shortened, it is difficult, because of his physical impairment to his right leg and only having one eye, for him to obtain work in his previous occupation as a carpenter or handyman [152].

39 The primary judge did not find that there was any inconsistency in Rory McGeough's evidence about his capacity for work or the type of work that he can now carry out [156]. Her Honour accepted that Rory McGeough thought, after his initial diagnosis in 2010, that he then only had a life expectancy of about two years, which was ultimately not the case [156]. Her Honour also accepted that, given the lapse of time since his diagnosis in 2010 without reoccurrence, Rory McGeough can expect to live and does expect to live a reasonably long life. However, Rory McGeough had lost one of his eyes 'which has resulted in him being unable to work in his previous occupation as a carpenter' [156].

40 The critical finding made by her Honour was that Rory McGeough was unlikely to gain employment now or in the future [152]. Her Honour did not in terms find that Rory McGeough 'was not capable of work' as asserted in ground 2.

41 None of the findings to which we have referred at [37], [38(a) and (c)] and [39] above have been challenged in the appeal. In any event, all of those findings were reasonably open to the primary judge on the evidence as a whole. As with ground 1, the findings we have mentioned were informed, to a material extent, by her Honour's advantage in having seen and heard Rory McGeough and the other witnesses (namely, the appellant and the third respondent) give their evidence. As we have mentioned, her Honour found that Rory McGeough was a credible witness [156]. Her Honour was entitled to find that Rory McGeough was unlikely to gain employment now or in the future. On our assessment of the trial record, that finding was not against the weight of the evidence.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76.

[2] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43] (French CJ, Bell, Keane, Nettle & Gordon JJ).

[3] Collings v Vakas [2006] NSWSC 393 [67]; Cringle v Cringle [2018] NSWSC 1558 [35] ‑ [36]; Stone v Stone [2019] NSWSC 233 [60] ‑ [62].