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[2002] NSWCA 206
Court of Appeal (NSW)
2002-06-27
Handley JA, Hodgson JA, Bryson J
Original judgment source is linked above.
CITATION : Mulcahy v. Weldon [2002] NSWCA 206 FILE NUMBER(S) : CA 40525/01 HEARING DATE(S) : 27 June 2002 JUDGMENT DATE : 27 June 2002
PARTIES : Patricia Elizabeth Mulcahy - appellant Paul John Weldon (as trustee of the Estate of the late John Robert Mulcahy) - respondent JUDGMENT OF : Handley JA at 27, 29; Hodgson JA at 1; Campbell AJA at 28
LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT SC4732/99 FILE NUMBER(S) : LOWER COURT Bryson J JUDICIAL OFFICER :
COUNSEL : Mrs. L. Robinson for appellant Mr. C. Bevan for respondent SOLICITORS : G.H. Healey & Co., Bondi for appellant Turner Freeman, Sydney for respondent CATCHWORDS : SUCCESSION - FAMILY PROVISION - Application by former wife of deceased - Dismissed by primary judge - No error shown. LEGISLATION CITED : Family Provision Act 1982, s.9 CASES CITED: Dijkhuijs v. Barclay (1988) 13 NSWLR 639 DECISION : Appeal dismissed with costs.
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40525/01 SC 4732/99
HANDLEY JA HODGSON JA CAMPBELL AJA
Thursday 27 June 2002 MULCAHY V. WELDON Judgment 1 HODGSON JA: On 12 June, 2001 Bryson J in the Equity Division made an order dismissing proceedings brought by the appellant, Patricia Elizabeth Mulcahy, under the Family Provision Act against the respondent, Paul John Weldon, the executor of the will of the late John Robert Mulcahy. 2 On 22 June, 2001 the primary judge ordered to the effect that the appellant pay her own costs of the proceedings and that the costs of the respondent come out of the estate. 3 The appellant appeals to this Court from the order made on 12 June, 2001. 4 I will begin with a brief outline of the circumstances. 5 The deceased died at a date which cannot be exactly established between 19 April, 1998 andV20 May, 1998 aged sixty-seven. On 16 October, 1998 probate was granted to the respondent of the deceased's last will made on 31 July, 1992. By the provisions of that will which took effect the deceased appointed the respondent executor and gave the whole of his property to the respondent and his sister, Susan Weldon, in equal shares. 6 The appellant is the former wife of the deceased. She was born on 26 August, 1932. She married one William Moffat in 1953. Mr Moffat died in 1965 and the appellant has three adult children of that marriage. The appellant married the deceased on 9 January, 1971 and their marriage was dissolved by a decree of the Family Court of Australia in about 1989. The appellant attributes her separation from the deceased, which took place in about 1988, to his alcoholism and his extreme violence towards her. 7 In the Family Court of Australia, application was made by one or both parties for a property settlement, and this application was disposed of by orders made on 21 March, 1990. Those orders were as follows:- UPON APPLICATION made to the Court this day AND UPON HEARING the legal representations of both parties IT IS ORDERED 1. That by consent orders be made in terms of paragraphs 1 2 & 3 of the document titled "Terms of Settlement" dated the 19th day of March 1990 filed herein and attached hereto. AND THE COURT NOTED: the terms of paragraphs 4 and 5 of the said "Terms of Settlement". 8 Those orders referred to terms of settlement dated 19 March, 1990. Those terms were signed by the appellant and the deceased and their respective solicitors, and they contain the following provisions:- 1. By way of property settlement that the Husband:- Pay to the Wife the sum of $150,000.
I would think that the making of an application is warranted where there are significant matters for consideration in relation to the question posed by s.7, whether provision ought in the opinion of the Court to be made out of the estate or notional estate having regard to the present circumstances. There had been a property settlement which on its face dealt with all property, there was no further attempt to re-open the property settlement during Mr Mulcahy's lifetime and no grounds appear on which there could have been such an attempt; Mr Mulcahy was a party to cl.5 of the Terms of Settlement which although not effective as it had not been adopted by the Court, gave what for most purposes would give some assurance that the plaintiff was not to look to him for further provision. The later course of the lives of both of them and the resources available to them fell well within the range of foreseeable events for them both. In the circumstances I see no real prospects of it being established that Mr Mulcahy in his lifetime ought to have made provision for the plaintiff or, to return to the terms of s.7, that the Court should form the opinion having regard to the circumstances at the present time that provision ought to be made for her maintenance or advancement in life. The whole subject of claims by her against him and his property was dealt with fully, past and closed, so that there was no reason for it to engage his attention or bounty thereafter, and in my view there is no reason why the Court should take any action either. 17 Mrs Robinson, who appeared for the appellant before us, submitted that the circumstances of the appellant's application, the circumstances of her life, her financial circumstances, her health, the size of the estate, the circumstance that the deceased's will left the whole property to persons with no legitimate claim on the deceased, and the length of the marriage of the appellant to the deceased, considered together, were sufficient to bring the appellant over the threshold provided by s.9 of the Family Provision Act, and then in turn sufficient to justify an order under s.7 of the Act. 18 Mrs Robinson referred us to the case of Dijkhuijs v Barclay (1988) 13 NSWLR 639, and submitted that that case indicated that there were not limited categories which had to be satisfied before a person could pass the threshold set by s.9 of the Act and have the benefit of a finding that there are factors warranting the making of the application. 19 Mrs Robinson submitted that the primary judge dealt with the matter in part by specifying two categories, namely, in the case of an application by a former wife, factors which prevented the making of an order for property settlement under the Family Law Act and, secondly, cases where the former wife continues to make contributions to the welfare of her former husband after dissolution of the marriage. Mrs Robinson submitted that, having found that this case did not come within either of those categories, the primary judge did not adequately address the question whether factors could be shown in some other way in this case. 20 Mrs Robinson submitted that it was dangerous to approach the matter as a matter of satisfying or not satisfying a requirement of a particular category: the appropriate approach was to look at all the circumstances and to see if all the circumstances demonstrated factors warranting the making of the application. 21 Mrs Robinson submitted in this case, if the deceased as a wise and just testator had seen the appellant in her poor circumstances, with no prospect of improvement or assistance, indeed, the prospect of many further years of life with worsening financial circumstances, surely he would have considered it appropriate to leave something to her out of the sizeable estate, rather than leave everything to distant relatives. 22 Mrs Robinson pointed to passages in the judgment where Bryson J had considered the appellant's circumstances at the time of the family law settlement, and submitted that he did not adequately consider her circumstances at the time of the application. 23 Mrs Robinson submitted that error could be found in the judgment, perhaps by reference to the primary judge's approach as limiting the available categories, but also because of the unreasonableness of the result which he reached in all the circumstances. 24 In my opinion the primary judge's decision is one which can be overturned by this Court only if this Court is satisfied that there has been some error of law or mistake of fact, or if some other error appears in the judgment, such as taking into account irrelevant considerations or disregarding relevant considerations, or alternatively if the result of the decision is unreasonable in such a way as to indicate some other latent error in the judgment. 25 In my opinion the appellant has not shown any error of this kind in the decision of the primary judge. It is not for this Court to consider for itself de novo what it would decide to be the appropriate result. It is necessary for error to be demonstrated. In my opinion the primary judge did not purport to place any limitation on the categories of cases in which the s 9 threshold can be passed, did not fail to take into account the appellant's present circumstances, and did not take into account any irrelevant matter. I am unable to say that the result is unreasonable in a way requiring the intervention of this Court. 26 For those reasons in my opinion the appeal should be dismissed with costs. 27 HANDLEY JA: I agree. 28 CAMPBELL AJA: I also agree. 29 HANDLEY JA: The orders of the Court will be as pronounced by Hodgson JA. **********
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