Page v Page

Resolution of the appeal

1. The question then arises whether failing to consider whether to make a finding of partial dependency in relation to the period from October 1972 until late 1973, in circumstances when his Honour was not asked to make such a finding, is an error entitling review.
2. If, contrary to my view but in accordance with the way the parties framed their submissions, review is confined by reference to the principles governing appellate review of discretionary decisions and it is necessary to identify error, there is much to be said in favour of the proposition that there is no error in failing to make a finding which was not sought by either party. However, on reflection, I do not consider that the fact that the primary judge was not asked in terms to make such a finding is dispositive. The finding of partial dependency which the primary judge was asked to make was for a longer period which included the period from October 1972 until late 1973, and I do not think it was necessary for counsel then appearing for the plaintiff to advance, as a fallback submission, that if his Honour were against the primary submission in relation to the periods during which the deceased was at boarding school or at TAFE, it was nevertheless contended that the 14 month intervening period was sufficient. All of the testimonal evidence as to this period was in contest at the trial. I have also had regard to the facts that the 14 month period was a significant length of time in the adolescence of the appellant, as well as being a natural period to consider separately, given that it marked the return of the deceased from boarding school, at a time when he was the only adult male in the large household. I consider there was error in failing to consider this period separately.
3. If, as I consider to be the better view, the issue of partial dependence is determined on appeal in accordance with Warren v Coombes, then it may be that the identification of error above is unnecessary (this is not the occasion to address the various views expressed on this issue in Costa v The Public Trustee of NSW [2008] NSWCA 223, just as it was unnecessary to do so in Burge v Burge [2015] NSWCA 289 at [37]). Taking the approach most favourable to the appellant, the question reduces to whether the evidence adduced by the appellant entitles this Court to be satisfied that he was partly dependent upon the deceased in that period. I incline to the view held by Sackville AJA that it does not do so. However, I am conscious that the documentary evidence was relatively exiguous, that the appellant's case was principally based on testimonial evidence of events some forty years ago when the deponents (save for the mother) were quite young and appears to have suffered from the fragilities usually attending such evidence, and that this Court lacks the benefit of seeing and hearing the testimony of the appellant and the other witnesses called at the trial. In those circumstances, I prefer to resolve the appeal on the final basis mentioned by Sackville AJA.
4. As Sackville AJA points out, the appellant's case based on there being factors warranting the making of the application would fail if the sexual abuse were limited to the four occasions to which the appellant had deposed in his sworn evidence at the criminal trial. That follows from concessions elicited during cross-examination and confirmed in re-examination of the psychiatrist called by the appellant to the effect that the initiating and maintaining factor of the appellant's present illness was the sexual assaults of the offender, rather than the acts of indecency of the deceased.
5. Only if some substantial wrong or miscarriage of justice has been occasioned can this Court order a new trial: UCPR r 51.53. If contrary to the findings of the primary judge there are factors warranting the making of the application by the appellant, it is only because his evidence at the criminal trial in 2000 was materially incorrect. That evidence was given in chief, in answer to open-ended questions, and maintained unequivocally in cross-examination. The appellant said that there had only been four acts of indecency by the deceased, and that he was absolutely sure that the deceased had never penetrated him. He said that there was "no chance at all" that he had given that evidence so as to try to show that the accused was the only person who had penetrated him. The appellant's evidence was thus starkly inconsistent with the account sought to be given in the present litigation.
6. There are possible explanations for the appellant's contradictory recollections. However, despite the centrality of the claimed abuse by the deceased and the starkness of the conflict between the appellant's evidence in 2000 and 2016, there was no evidence directed to explaining how the account sought to be advanced in support of the appellant's claim under the Succession Act was to be reconciled with the acceptance of his evidence to the criminal standard by a jury in 2000. But a new trial could only succeed if it were shown that the basis of the prosecution in which the appellant was a principal witness was materially incorrect.
7. Further, the appellant had, by the time of the trial in 2016, served a draft statement of claim seeking damages from the assaults he claimed to have suffered from the deceased, and it was not suggested that any aspect of the administration of the deceased estate stood in the way of such a claim. Thus, if what the appellant seeks is a public vindication so many decades after the event, and after the death of his brother - albeit with the attendant risks given his evidence in 2000 - then the dismissal of this appeal does not stand in the way of that course. I am conscious that it was said that such a claim would be a "futile exercise" because, as it was put, "it's all notional estate". As much may be acknowledged, but even so I am not satisfied, in the highly unusual circumstances of this case, that there will have been a substantial wrong or miscarriage of justice. It is on that basis that I agree with the orders proposed by Sackville AJA.
8. SACKVILLE AJA: This is an appeal against orders made by a Judge of the Equity Division (Hallen J) dismissing a claim by the appellant seeking a family provision order out of the estate and notional estate of his deceased brother. [12] As the primary Judge remarked, the circumstances giving rise to the proceedings are tragic. [13]
9. Much of the appellant's case was based on his claim that the deceased regularly sexually abused him over a nine year period. [14] The appellant claimed that the abuse started when he was seven years old and continued until he was aged sixteen years and nine months. The appellant alleged that the sexual abuse perpetrated by the deceased included repeated acts of penetration. In addition, the appellant claimed that the deceased made him (the appellant) available for sexual abuse by the deceased's friends.
10. The deceased committed suicide on 3 July 2014, aged 58. The respondent is the deceased's widow, the executrix named in the deceased's will made on 30 October 2013 (Will).
11. It was common ground before the primary Judge and on appeal that the appellant's claim to family provision cannot succeed unless he satisfies two statutory criteria. He must show that: (a) he is an "eligible person" for the purposes of s 57(1) of the Succession Act 2006 (NSW) (Succession Act) in that he is a person who was partly dependent on the deceased for a period of time and was also at some time a member of the household of which the deceased was also a member; [15] and (b) having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application. [16]
12. The primary Judge found that: (a) the appellant had been a member of the same household as the deceased, but had never been wholly or partly dependent on the deceased within the meaning of s 57(1)(e) of the Succession Act and thus was not an "eligible person" [17] ; and (b) in any event, there were no factors warranting the making of the application as required by s 59(1)(b) of the Succession Act. [18]
13. Accordingly, the primary Judge dismissed the summons seeking a family provision order. In a separate judgment, his Honour ordered the appellant to pay the costs of the executrix on the ordinary basis and directed that insofar as the executrix's costs are not paid by the appellant her costs should be paid out of the estate. [19]
14. The two grounds of appeal on which the appellant relies are as follows: "1. The primary Judge erred by failing to make a finding that [the appellant] was partially dependent upon the deceased at a time when [the appellant] was a member of the household of which the deceased was a member having regard to the evidence of witnesses whose evidence the primary Judge accepted. 2. The primary Judge erred by failing to find that the factors relied upon by [the appellant], and established by the evidence of witnesses whose evidence the primary Judge accepted, warranted the making of [the appellant's] application for provision, according to community standards."
15. The appellant's Notice of Appeal invites the Court, if it allows the appeal, to make an order for his provision out of the deceased's estate or notional estate. Neither the Notice of Appeal nor the appellant's written submissions identified any particular sum for which provision should be made. In oral argument, Mr Coleman SC, who appeared with Ms Clarke for the appellant, nominated $500,000 as a suitable sum.
16. It was put to Mr Coleman that it would be very difficult for this Court to make the findings necessary to determine what provision (if any) should be made in favour of the appellant (assuming the appeal was allowed). Mr Coleman did not withdraw the submission that this Court should determine the claim, but acknowledged that if the appeal was allowed there might be no alternative but to remit the matter for a further hearing so that the necessary findings could be made.

Legislation

1. Section 59 of the Succession Act relevantly provides as follows: "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of 'eligible person' in section 57-having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made."
2. Section 57(1) of the Succession Act states that "eligible persons" who may apply to the Court for a family provision order in respect of the estate of a deceased person include: "(e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,"
3. Section 60 provides as follows: "(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, 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) … (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, … (f) any physical, intellectual or mental disability of the applicant … (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (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, … (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
4. A family provision order may be made in relation to the estate of a deceased person (s 63(1)). Such an order may also be made in relation to property that is not part of the deceased person's estate but is designated as "notional estate" of the deceased person by an order under Part 3.3 of the Succession Act (s 63(5)). A family provision order may also be made in respect of property outside New South Wales (s 64).

Background

1. The parents of the appellant and the deceased are James and Yvonne Page. [20] There were six children of the marriage of James and Yvonne, as follows:

• the deceased, born April 1956
• Lyle, born 1957
• Rodney, born 1958
• Kieran, born 1960 (died 2012)
• the appellant, born June 1961
• Neralie, born 1962

1. Yvonne and James separated in 1968. James died in 1970.
2. Yvonne gave evidence in support of the appellant's claim, as did Lyle and Neralie. Rodney swore an affidavit which was read in the executrix's case.
3. The deceased married in 1982 and remained married until his death. On 12 June 2015, his widow was granted Probate of the Will.
4. Under the Will, the estate was left to the deceased's three children and to his widow. No provision was made for the appellant.
5. The deceased's estate included assets in both New South Wales and Vanuatu. At the date of trial, the New South Wales assets were valued at $51,958 and the assets in Vanuatu at $379,429.
6. The only eligible persons (other than the appellant) were his widow and three children. The effect of s 61(1) of the Succession Act is that the Court cannot disregard their interests as beneficiaries of the estate. However, neither the widow nor the children gave evidence of their financial circumstances and thus did not assert any claim on the deceased's bounty, except as beneficiaries under his Will.
7. It was agreed at the hearing in the Equity Division that the value of property that could be designated as notional estate was "at least $1.3 million". The executrix accepted that if the appellant obtained a family provision order she would meet the amount due under the order.
8. The appellant's costs and disbursements to the completion of the three day hearing were estimated to be $115,696, excluding any uplift fee payable to his solicitors. The executrix's legal costs and disbursements were estimated on an indemnity basis to be $230,536, a figure described by the primary Judge as "eye watering". [21]
9. The primary Judge made no findings about the appellant's financial resources at the date of the trial. However, in his affidavit the appellant said that he had net assets of about $200,000 and a gross weekly income of $1,140. The weekly amount was made up of pensions from the Department of Veteran Affairs and the New South Wales Fire Brigade Service, an unspecified Centrelink benefit and rent from a property owned by the appellant.
10. The pensions were referable to the appellant's service with the Army (1981-1984) and with Fire Rescue NSW (1990-2007). He retired from Fire Rescue NSW in 2007 by reason of total and permanent incapacity.

Allegations of sexual assault

1. The primary Judge noted that it was not in dispute that between February 1969 (when the appellant was seven) and January 1974 (when he was thirteen), the appellant was subjected to a number of very serious sexual assaults by an adult outside the family. In June 2000, the perpetrator was convicted on all counts, including eight counts of buggery, and sentenced to a lengthy term of imprisonment. [22]
2. As the primary Judge recorded, the appellant gave evidence at the criminal trial during which he was asked about the deceased's conduct. The appellant said that over about a two year period, when he was aged between eleven and thirteen, the deceased had rubbed his penis on the appellant's buttocks. The appellant denied on oath that during these assaults the deceased had penetrated him. [23] In July 2014, the appellant gave a signed statement to the police describing the deceased's conduct in similar terms. [24]
3. Despite his earlier statements, the appellant swore affidavits in the family provision proceedings alleging that the deceased had perpetrated a much more extensive series of sexual assaults on him. His Honour stated that: [25] "These proceedings should not be the vehicle by which allegations of sexual abuse should be determined. Yet the current proceedings appear to have been conducted by or on behalf of [the appellant], almost completely, upon the basis that the deceased had a duty in his Will to make good to him the loss and damage said to have been suffered as a result of the alleged sexual assaults."
4. The primary Judge referred to a judgment of the Victorian Court of Appeal observing that a family provision claim does not create an alternative means of obtaining compensation or damages for a wrong done to a person by a testator, but that the testator's conduct may explain why the claimant has a particular need. [26] His Honour observed that whether the appellant had a financial need caused by the "vestiges of sexual abuse" perpetrated by the deceased was complicated by the established conduct of the perpetrator of the criminal assaults. [27]

The appellant's evidence

1. The primary Judge considered the appellant's evidence at some length. His Honour made this assessment: [28] "I did not find [the appellant] to be a particularly impressive witness. I found him to be a witness who was extremely anxious to highlight that he had suffered at the hands of the deceased, and, although not put in these terms, to ensure that he should be compensated for the loss and damage that he believed had been caused by the deceased's conduct."
2. The primary Judge found that the appellant decided in January 2014 to confront the deceased about the alleged abuse "and seek restitution and compensation for the abuse". [29] On 6 March 2014, the appellant sent a text message to the deceased as follows: [30] "… I am very disappointed not having heard from you regarding these family matters. You were going to contact me on your return from Vanuatu on the 1st March but to date have failed to do so. I put off my original plan as I informed you, as it appeared to me that you were going away to consider your manner in which these issues were going to be resolved. It appears that it is of no real significance to you. My intentions are to speak to the Police and Department of prosecution on 30th March, and if I have not heard from you in the next few days I will be making this formally in any matter."
3. In his Honour's view, this and other text messages were deliberate demands for money and included threats that consequences would follow if the demands were not met. [31] This was important in relation to the appellant's credit and was also a matter relevant to assessing the appellant's conduct before the deceased's death. [32] Such conduct could be taken into account in considering the appellant's claim for relief. [33]

Eligible person

1. There was no dispute that the appellant had been a member of the household of which the deceased had also been a member. [34] The issue for determination was whether the appellant had been "wholly or partly dependent on" the deceased within the meaning of s 57(1)(e)(i) of the Succession Act.
2. The authorities established that: [35] "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 … 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."
3. The primary Judge made the following findings:

• the deceased was a boarder at the St Vincent's Boys' Home at Westmead from April 1969 to about October 1972; [36]
• during that period Yvonne was at home other than for short periods when she was at work and the deceased came home on some weekends and during school holidays; [37]
• from about 1966 Yvonne worked at Grace Bros for one and a half days per week (Thursdays until 5 pm and Saturday mornings); [38]
• in about 1971 Yvonne started to work at a second job on Sunday nights and her practice was to take the deceased back to school on her way to work; [39]
• the deceased and his siblings spent part of their holidays with their grandparents in Chatswood, while Yvonne used to take the children to the Entrance for about two weeks during the holiday period; [40] and
• the appellant was not financially dependent on the deceased at any time. [41]

1. The primary Judge continued as follows: [42] "[156] There is evidence that when Yvonne was not at home, and the deceased was there, the deceased ensured the home was secure at night; that [the appellant] and the other siblings left home in time for school; that household chores were completed by the sibling responsible; he prepared and served some meals; that he supervised homework and play periods, that the other children were in bed at a reasonable hour, and ready for school each day. It appears that Yvonne had requested the deceased to undertake this role when the deceased was about 15 years of age (after April 1971). … [158] This is not a case where [the appellant], as a child, was entrusted, on a day to day basis, to the deceased's care during the period referred to. Nor is it one where the deceased could be regarded as having been in loco parentis. [159] I do not accept the evidence of [the appellant], Lyle, or of Yvonne, that the deceased continued in this role after about late 1973, to any great extent. In early 1974, he commenced full time work as well as doing some overtime. He was described by his brother, Rodney, as a teenager with 'a busy social life'. The likelihood is that he spent less and less time at home with his mother and his siblings. [160] Thus, in my view, the opportunity for him to perform the tasks that he had performed when he was not at school but living at home, would have diminished over time for these reasons and because each of his siblings was also growing up. [161] I am also not satisfied that the deceased continued to play any role which could be described as him 'being in charge' in relation to [the appellant] after about late 1973. Even before then, it was limited to the occasions when Yvonne was not present. [162] Whilst a person may be dependent upon another whether or not there is a co-existing legal duty, the existence of such a duty is one of the many elements to be taken into account in deciding upon the factual question of dependency Middleton v Kiama District Hospital [1970] 3 NSWR 136 at 138; Bayssari v Bazouni at [37] (Ball J). [163] It was not submitted that there was any legal duty upon the deceased to maintain [the appellant] at any time. His mother, Yvonne, may have asked the deceased to assist her, but it is unlikely that [the appellant] was dependent upon the deceased to play the role of surrogate parent. It is hardly the case that Yvonne abrogated her parental responsibility to the deceased. [164] Nor do I accept that [the appellant], as a child, could not survive without what the deceased is said to have done, as a result of Yvonne's request, or that if the services provided by the deceased had been withdrawn, [the appellant] would have had difficulty undertaking the tasks himself by reason of his age or otherwise. [165] Nor is there any evidence that satisfies me that [the appellant] 'needed' what was said to have been provided by the deceased, in the sense that it was necessary for his well-being. In my view, [the appellant's] needs to be fed, cared for, and accommodated were all provided by Yvonne, not by the deceased. [166] I think it is far more likely that it was Yvonne who depended upon the deceased to ensure that her directions, whether to complete chores, get ready for school, to make dinner and the like, were performed by her other children."
2. The primary Judge rejected the appellant's evidence that he looked to the deceased for advice and guidance. On the contrary, the appellant had truthfully told a psychiatrist, Dr Jungfer, that he was "never close to" the deceased. [43]
3. It followed that the appellant was not an "eligible person" within s 57(1)(e) of the Succession Act and that the proceedings had to be dismissed. [44]

Factors warranting the application

1. Although it was not necessary for the primary Judge to consider whether the appellant satisfied s 59(1)(b) of the Succession Act, his Honour did so. He referred at some length to the relevant authorities, noting that this Court recently stated that: [45] "the relevant principles [are] those stated by McClelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal at [8]. Those 'factors' are ones which, when added to the facts which render the applicant an 'eligible person' (in Ms Sassoon's case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition."
2. The primary Judge recorded the factors relied on by the appellant to warrant the making of his application, as follows: [46] "(i) The [appellant] remained silent on the deceased's abuse for 14 years. (ii) At the trial in 2000 he requested the police not to charge the deceased and despite gaining greater recall over the years did not report the deceased to the ODPP or the police. (iii) His mother, a widow with 6 young children, placed the deceased in a position of trust and responsibility. (iv) The deceased abused his mother's trust and interfered with a minor; as a minor and as an adult. (v) In doing so the deceased caused the [appellant] deliberate harm (sexual abuse). (vi) Through his actions, the deceased destroyed the safe sanctuary within the home environment that the [appellant] was entitled to. (vii) The [appellant's] childhood was significantly impacted by the deceased [sic] choices and actions. (viii) The deceased, in choosing to undertake the actions that he did, interfered without the [appellant's] permission in the life of the [appellant], causing permanent damage to the [appellant]. In doing so, the deceased enlivened a moral responsibility for the consequences of his actions. (ix) The harm caused ongoing damage and consequences, and on the evidence, has contributed to the [appellant's] chronic posttraumatic stress disability. (x) The deceased acknowledged to the [appellant] and to his mother, that he caused harm to the [appellant]."
3. His Honour rejected the appellant's contentions, for these reasons: [47] "[187] These matters, even if they were regarded as having occurred, speak more to damages and compensation, than to factors warranting the making of an application for a family provision order. To the extent that they do, there would be a real question about the effects attributed to the deceased's alleged conduct when taken in the context of [the convicted perpetrator] established conduct. [188] [The appellant's] counsel relied upon the alleged sexual assaults as a factor warranting the making of the application. In my view, and as a general principle, they are not factors that would lead to a perpetrator determining that some provision should be made for the victim out of his or her estate. … [190] Even if [contrary to his Honour's findings] there were conversations in which the deceased mentioned 'providing for' [the appellant], the context of the conversations seemed to be to avoid publicity, perhaps criminal charges that might be laid, and the hurt that would be inflicted upon members of the deceased's family. The conversations do not establish, to my mind, a factor warranting the making of the application for a family provision order. [191] When one considers this question according to community standards, I am of the view that [the appellant], as the brother of the deceased, has not established such factors. The blood relationship, in circumstances where there are blood relatives who are closer to the deceased, is not a factor. … [193] Having considered all of the evidence, I am not satisfied, for the purpose of section 59(1)(b) of the Act, that there are factors which warrant the making of [the appellant's] application."

The appellant's submissions

1. The appellant's submissions on the appeal were straightforward. Mr Coleman's primary contention was that the factual findings made by the primary Judge required the conclusion that the appellant had been partly dependent on the deceased during the period from April 1971 until the end of 1973. Mr Coleman relied particularly on the findings at [156] of the Primary Judgment which, for convenience, I repeat: "[156] There is evidence that when Yvonne was not at home, and the deceased was there, the deceased ensured the home was secure at night; that [the appellant] and the other siblings left home in time for school; that household chores were completed by the sibling responsible; he prepared and served some meals; that he supervised homework and play periods, that the other children were in bed at a reasonable hour, and ready for school each day. It appears that Yvonne had requested the deceased to undertake this role when the deceased was about 15 years of age (after April 1971)."
2. Mr Coleman submitted that an additional reason for appellate intervention was that his Honour had taken into account an irrelevant consideration in rejecting the appellant's claim of partial dependency. This consideration was said to be the finding that the appellant could have "survive[d]" without the deceased's assistance. [48] According to Mr Coleman, it is not necessary, in order to establish that a person was partially dependent on another, that the first person would have been unable to survive without the other's assistance.

Context

1. In addressing these submissions, it is necessary to take a number of matters into account.
2. First, Mr Coleman accepted that the primary Judge's conclusion that the appellant had not established that he was partly dependent on the deceased was an evaluative judgment based on the facts as found. Mr Coleman also accepted that the evaluative character of the decision requires the appeal to be governed by the principles that regulate appeals from decisions made in the exercise of a discretion. [49] On this basis, it is necessary for the appellant to demonstrate an error of the kind that vitiates the exercise of discretion. [50] Since the parties were in agreement that this approach should be taken in applying s 57(1)(e) of the Succession Act, it is not necessary to take the issue further in the present case.
3. Secondly, Mr Coleman did not submit that the primary Judge misconstrued s 57(1)(e) of the Succession Act. The appellant's argument proceeded on the basis that the primary Judge correctly stated the effect of the authorities construing s 57(1)(e) and its legislative predecessors.
4. Thirdly, the Notice of Appeal does not challenge any of the findings of primary fact. The appellant's written submissions seemed to suggest that his Honour might have made different findings as to the degree of support the deceased provided to Yvonne in the management and care of the younger children, particularly in the period prior to October 1972. In his oral submissions Mr Coleman did not apply to amend the Notice of Appeal and did not invite the Court to overturn any of his Honour's findings.
5. Fourthly, the appellant's case on appeal was materially different to that at trial. At trial, the appellant's case was that for a number of years the deceased had filled the gap left by the absence and death of his father and acted as the "man of the house". In this role, so it was said, the deceased had assisted Yvonne in the care and support of the five younger children and had performed parental duties. Yvonne relied on the deceased to act as head of the house when she was not present which (on the appellant's case) was often.
6. The primary Judge rejected the key elements of the appellant's factual case. Specifically his Honour found that:

• the deceased could not be regarded as having acted in loco parentis towards the appellant; [51]
• the appellant's evidence that he looked to the deceased for support and guidance was unreliable and in truth the appellant had never been close to the deceased; [52] and
• even without the deceased's help, the appellant would not have had difficulty performing the tasks by himself. [53]

1. Mr Wilson SC, who appeared with Mr Bolster for the executrix, did not object to the appellant's case being recast on appeal to rely on the findings actually made. Even so, it is necessary to bear in mind that the primary Judge made his findings in response to the case advanced by the appellant. The findings must be understood in that context.
2. By way of example, Mr Coleman contended that his Honour placed too much emphasis on the finding that Yvonne had not abrogated to the deceased her parental responsibility towards the younger children. But the primary Judge made this finding in response to the appellant's claim that in many respects the deceased had taken over the role of parent from Yvonne. The primary Judge was not implying (as Mr Coleman seemed to suggest) that the appellant could not have been partially dependent on the deceased unless Yvonne had abrogated her parental responsibility to the deceased. His Honour was merely rejecting the appellant's contention that the deceased had taken over his mother's role as the appellant's parent.

Principles

1. As has been noted, a person applying for a family provision order must establish that he or she is an "eligible person" within the definition in s 57(1) of the Succession Act. In the present case, the appellant had to establish that he is a person who was, at any particular time, wholly or partly dependent on the deceased (s 57(1)(e)).
2. In interpreting this jurisdictional requirement, it is necessary to bear in mind that the High Court has characterised family provision legislation as "remedial in character and therefore to be construed so as to give the most complete remedy which its phraseology [permits]". [54] Thus the Court should be alert not to place a restricted construction upon the legislation.
3. No question of construction arises in the present case since Mr Coleman did not take issue with the primary Judge's construction of s 57(1)(e) of the Succession Act or his Honour's statement of the relevant principles. It is convenient to refer to these principles briefly:
4. The word "dependent" is an ordinary English word and whether a person is wholly or partly dependent on another is a question of fact. [55]
5. The factual question can be complex and involve consideration of many elements. Accordingly, different minds might well differ in their approach. [56]
6. While a common form of dependence is dependence on another for the material necessities of life, this is not the only form recognised by s 57(1)(e) of the Succession Act. For example, where a parent or step-parent provides a child who has no independent financial resources with services essential to well-being, the child might be found to have been wholly or partly dependent on the parent or step-parent. [57]
7. Dependency involves the satisfaction of a need, but the need is not restricted to the requirements of basic necessities or sustenance. [58]
8. The word "partly" in the definition of "eligible person" is a word of "some elasticity". It does not necessarily mean "substantially", but rather "more than minimally" or perhaps "significantly". [59]
9. Dependency is not necessarily correlative with a legal duty to maintain, although such a duty is a factor to take into account. [60] Nor are dependency and actual support necessarily correlative. Hence there may be cases where support has been provided without dependency, for example where the support is provided for a short time or for a particular purpose [61] or where an adult child provides occasional domestic assistance to an aged parent. [62]

Analysis

1. Because of the way the appellant's case was presented at trial, the primary Judge did not clearly distinguish between the earlier period, during which the deceased was at boarding school (April 1971 to October 1972), and the later period (October 1972 until the end of 1973). On the facts found by the primary Judge the assistance provided by the deceased to the appellant during the first of the two periods fell well short of establishing partial dependency in the sense recognised by the authorities. There was no error in his Honour concluding that any assistance provided by the deceased to the appellant during this period did not enable the appellant to satisfy the definition of an "eligible person".
2. For the whole of the first period, except when on holidays, the deceased was a boarder at the St Vincent's Boys' Home. During term time the deceased was not at home on weekdays (except Friday evenings). Nor was he at home on Sunday nights, as his mother's practice was to drive him to the school before commencing her shift at work. Therefore the opportunity for him to perform household tasks during term time was very limited.
3. The primary Judge found that during the first period of eighteen months Yvonne worked on Thursdays, Saturday mornings and Sunday nights. [63] Yvonne gave evidence that she was at home at night, except on Sundays. It can therefore be inferred that while school was in session, the deceased was rarely at home without his mother being present. Indeed, the only time the deceased could have been regularly at home in the absence of his mother was on Saturday mornings. However, Yvonne's evidence was that the deceased, like all her children, started work at Grace Bros as soon as he turned 15. That evidence may not have been correct, but if it was, the deceased would have been working from 9 am to noon on Saturdays and thus would not have been regularly at home during those hours.
4. The terms on which the deceased was admitted to St Vincent's Boys' Home provided that "all holiday periods will be spent at such place or places as are decided by the Brother Director in his absolute discretion". The evidence does not establish whether the Brother Director imposed limitations on the extent to which the deceased would spend holidays with his family at home. The primary Judge found that the deceased and his siblings spent part of the holidays with their grandparents and that the children usually went to The Entrance for two weeks with their mother. There are no findings that during holidays the deceased did anything other than the intermittent household and sibling-control tasks that might be expected of a 15 or 16 year old who is the oldest child in a family headed by a single parent. To the extent that the deceased performed the tasks identified in the Primary Judgment, it must be remembered that the appellant was only one of the deceased's five siblings. There is no finding that the deceased had a special responsibility for the appellant; on the contrary, the primary Judge found they were not close at any relevant time.
5. The primary Judge, as has been seen, found that the deceased provided neither financial support nor guidance to the appellant; Yvonne at all times continued her role as head of the household, providing for the children and giving them directions; and the appellant was capable of looking after himself without any assistance from the deceased. None of these findings, taken separately, would necessarily preclude a finding that the appellant was partially dependent on the deceased. But taken together, having regard to the circumstances that have been outlined, any assistance provided by the deceased to the appellant was minimal. That level of assistance could not justify a finding that the appellant was partially dependent on the deceased. A fortiori, the primary Judge was entitled to make the evaluative judgment that the appellant had not established partial dependency.
6. The principal difficulty facing the appellant in relation to the period from October 1972 to the end of 1973 is the absence of clear findings as to precisely what assistance the deceased provided to the appellant during that period. The primary Judge cannot be criticised for not making findings specifically referable to the period after October 1972, since he was not asked to do so. This Court was not taken to evidence that would enable detailed findings to be made as to the deceased's contributions to the household and, more particularly, to the care of the appellant during this period.
7. During the 14 month period from October 1972 until the end of 1973, the deceased was living at home, but it is not clear how much of that time he actually spent at home. Yvonne's evidence tended to suggest that the deceased was mostly at home, but she was clearly at pains to support the appellant's claim that the deceased had taken over the position of man of the house after the death of his father. The primary Judge did not accept Yvonne's evidence as to the extent of the deceased's responsibilities within the household and it is difficult to separate that evidence from her claim that the deceased was mostly at home. Yvonne did acknowledge the deceased stayed "from time to time" at Greenwich with his friends at least from the latter part of 1973. There was also uncontradicted evidence that the deceased, who had been placed on probation on 7 February 1973 for an offence, was charged with another offence on 26 April 1973 and was remanded in custody for two weeks.
8. The primary Judge found that the deceased commenced a Food Technology course at Hawkesbury Agricultural College in "about 1973". [64] This appears to be an error. A Transcript of Academic Record in evidence suggests that in 1973 the deceased completed two subjects in a TAFE Cookery Trade Course at East Sydney College. The extent to which he was in paid employment during the 14 month period is not entirely clear, although Yvonne's evidence was that the deceased worked the same hours as she did, namely Thursdays and Saturday mornings.
9. The primary Judge made no finding that between October 1972 and the end of 1973, the deceased was at home for any length of time when his mother was absent and the Court was not taken to any evidence that would support such a finding. In this connection, the appellant's submissions referred to evidence that Yvonne spent extended time away from home on cruises. However, the first of her diary entries relating to a cruise was in 1979 and she was very vague as to the timing or duration of any cruises before that date.
10. The evidence is also vague as to the assistance provided by the deceased to the appellant during this period. It must be remembered that not only did the household comprise four children other than the deceased and the appellant, but that all the children were growing up. By October 1972, the appellant was eleven years of age. Lyle at this stage was fifteen years old, the same age as the deceased in April 1971.
11. I am prepared to accept that the relationship between two persons over a period as short as 14 months can establish partial dependency sufficient to satisfy s 57(1)(e) of the Succession Act. But in order for the appellant to succeed in his challenge to the primary Judge's rejection of his claim he must show that his Honour erred in failing to make findings of fact supporting the conclusion that the appellant was partially dependent on the deceased during this period. The primary Judge was not asked to make such findings and, in any event, the evidence does not establish that such findings should have been made. The appellant has therefore not demonstrated that his Honour fell into error concluding that the appellant was not an "eligible person" as defined in s 57(1) of the Succession Act.
12. I add a further comment. As Mr Coleman correctly pointed out, the New South Wales Law Reform Commission, in the report that led to the enactment of the predecessor to s 57(1)(e) of the Succession Act, acknowledged that a sibling of a deceased person could satisfy the statutory requirement of dependence. [65] Mr Coleman also correctly pointed out that there are a number of cases in which a claimant has succeeded in a family provision claim against the estate of a deceased sibling.
13. The conclusion reached in the present case in no way denies the possibility that the sibling of a deceased person may establish that he or she was wholly or partly dependent on the deceased. Each case must depend on its own circumstances. This can be seen, for example, by comparing the facts of one of the cases cited by Mr Coleman, Somogy v Kune, [66] with the facts of the present case.
14. Nor is the conclusion reached in this case inconsistent with the approach to be taken to the construction of Part 3.2 of the Succession Act (Family Provision Orders). The primary Judge's determination was made in conformity with the accepted construction of s 57(1)(e) of the Succession Act. The outcome of the case depends on the facts found by the primary Judge.

Factors warranting the application

1. Having regard to the conclusion I have reached on dependency, it is not necessary to decide whether his Honour erred in finding that there were no factors warranting the making of the application. However, I shall briefly indicate my views.
2. The appellant accepted that the primary Judge correctly stated the relevant principles. The appellant also accepted that his Honour's determination involved an evaluative judgment requiring consideration of all the circumstances, taking into account community standards and the expectations of those making testamentary dispositions. [67]
3. The primary Judge proceeded on the assumption that the matters relied on by the appellant had been established by the evidence. [68] On that assumption, the deceased had perpetrated serious sexual assaults on the appellant over a number of years. Equally important, on that assumption, the deceased's sexual abuse had caused permanent psychological damage to the appellant and (by inference) to his ability to live a normal life and fulfil his economic potential.
4. On the facts assumed by the primary Judge, his Honour may have erred in concluding that the appellant had not satisfied s 57(1)(e) of the Succession Act on the ground that the allegations "speak more to damages and compensation, than to factors warranting the making of an application". [69] In support of this approach, his Honour cited observations made by the Victorian Court of Appeal in Jones (A Pseudonym) v Smith (A Pseudonym). The full passage is as follows: [70] "[40] Finally, the [Family Provision legislation does] not create an alternative means of obtaining compensation or damages for a wrong done to a person by the testator or for which the testator bears some blame. Nevertheless, the testator's conduct may explain why the claimant has a particular financial need." (Emphasis added.) (Citation omitted.)
5. The latter part of this passage, not expressly referred to by the primary Judge, suggests that historic sexual abuse may be relevant to a family provision claim. This may be the case, for example, if the evidence establishes that the abuse caused the claimant to suffer a physical or psychological disability impairing his or her capacity to earn an adequate income. Since no challenge was made to the correctness of the Victorian Court of Appeal's observations, it may not have been a sufficient answer to the appellant's claim that the allegations of sexual abuse related more to damages or compensation than to whether factors are present warranting a family provision application.
6. If his Honour did err in this respect, a question would arise as to whether this Court should make its own determination as to whether there are factors warranting the making of the application. There would be difficulties in the Court taking this course. The primary Judge not only made no findings as to whether the alleged sexual abuse occurred, but did not consider whether such abuse that did occur was responsible, at least in part, for any needs the appellant had at the date of the hearing.
7. The primary Judge regarded the text message sent by the appellant to the deceased as enough of itself to preclude a finding that there were factors warranting the appellant making a family provision application. I would not necessarily take that view. Whether the text message bore the character attributed to it by the primary Judge might depend on the truth of the appellant's allegations as to the deceased's conduct.
8. An alternative course would be for this Court to make orders remitting the matter for a further hearing in the Equity Division on the outstanding issues. I would not be inclined to make such orders. If the sexual abuse perpetrated by the deceased was limited to the events described by the appellant in his sworn evidence at the criminal trial, his claim would fail. This follows from unequivocal evidence given by the psychiatrist called in the appellant's case: "Q. Let me put one last thing to you, one last line of inquiry. If there were only four occasions where there was touching of the buttocks and with the penis on the buttocks, if the deceased's conduct towards Mr Page was limited to that on four, five, maybe six occasions, when you compare that to penetration by [the perpetrator] first, over five years, upwards of 80 and a hundred times, surely the initiating and maintaining factor of any post-traumatic stress disorder is what [the perpetrator] did to Mr Page, not what his brother did. A. On those assumed facts, yes."
9. The prospects of the appellant establishing the truth of his allegations do not seem to me sufficiently promising to warrant a further trial exploring disputed factual questions in a matter in which total costs already equal the entirety of the estate (excluding notional estate). Although the primary Judge did not make findings as to the extent of the sexual abuse, his Honour did not accept the appellant's evidence on other important issues. The stark inconsistency between the appellant's sworn evidence at the criminal trial and his claims in the present case create very serious doubts about whether these claims could be accepted.
10. Uniform Civil Procedure Rules 2005 (NSW), r 51.53 provides that the Court must not order a new trial on any ground "unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned". For the reasons I have explained, I would not regard any error by the primary Judge in applying s 57(1)(e) of the Succession Act as creating a substantial wrong or miscarriage such as to warrant a new trial.

Orders

1. The appeal must be dismissed. The appellant must pay the respondent's costs.

Endnotes

1. Page v Page [2016] NSWSC 1218.
2. (1991) 25 NSWLR 343 at 346 (Clarke and Sheller JJA agreeing).
3. Page at [156].
4. Page at [159].
5. Page at [158].
6. Succession Act, s 59(1)(b).
7. (1987) 8 NSWLR 679 at 680G.
8. Re Fulop at 681A-B.
9. (2003) 214 CLR 169; [2003] HCA 9 at [44] (Gummow and Hayne JJ); [124] (Kirby J).
10. [1984] 2 NSWLR 32 at 53.
11. See also Costa v Public Trustee [2008] NSWCA at [32]-[50] (Ipp JA) and at [55]-[105].
12. Page v Page [2016] NSWSC 1218 (Primary Judgment).
13. Primary Judgment at [1], [4].
14. An application was foreshadowed during the hearing in the Equity Division for an order preventing publication of the names of the parties. However, the application was not pursued and no such order was made: Primary Judgment at [6]-[10].
15. Succession Act, s 57(1)(e) reproduced at [59] below.
16. Succession Act, s 59(1), reproduced at [58] below.
17. Primary Judgment at [170].
18. Primary Judgment at [194].
19. Page v Page [No 2] [2016] NSWSC 1323.
20. I refer to the parents and the appellant's siblings by their first names, without intending any disrespect.
21. Primary Judgment at [40].
22. Primary Judgment at [51].
23. Primary Judgment at [52].
24. Primary Judgment at [53].
25. Primary Judgment at [58].
26. Primary Judgment at [62], citing Jones (A pseudonym) v Smith (A pseudonym) [2016] VSCA 178 at [40] (Ferguson JA, Whelan and Kaye JJA agreeing).
27. Primary Judgment at [63].
28. Primary Judgment at [78].
29. Primary Judgment at [100].
30. Primary Judgment at [102].
31. Primary Judgment at [107].
32. Primary Judgment at [108].
33. Primary Judgment at [112].
34. Primary Judgment at [125].
35. Primary Judgment at [127].
36. Primary Judgment at [145].
37. Primary Judgment at [146].
38. Primary Judgment at [147].
39. Primary Judgment at [148].
40. Primary Judgment at [150]-[151].
41. Primary Judgment at [153].
42. Primary Judgment at [156]-[166].
43. Primary Judgment at [169].
44. Primary Judgment at [170].
45. Primary Judgment at [179], citing Sassoon v Rose [2013] NSWCA 220 at [15].
46. Primary Judgment at [186]. I have omitted items (xi)-(xiii) because his Honour found that the appellant had not established the facts supporting them: at [189].
47. Primary Judgment at [187]-[193].
48. Primary Judgment at [164].
49. Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, at 212 (Mason CJ, Deane and McHugh JJ); Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [5]-[6] (Allsop P); at [42] (Basten JA).
50. House v The King (1936) 55 CLR 499; [1936] HCA 40, at 504-505 (Dixon, Evatt and McTiernan JJ).
51. Primary Judgment at [158].
52. Primary Judgment at [169].
53. Primary Judgment at [164].
54. Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 at [44] (Gummow and Hayne JJ), [124] (Kirby J) citing Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113, [1932] HCA 1 at 119 (Rich J, Evatt and McTiernan JJ agreeing); Saravinovski v Saravinovska [2017] NSWCA 85 at [30] (Leeming JA, Beazley P agreeing).
55. Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 (Hope AJA, Clarke and Sheller JJA agreeing); Aafjes v Kearney (1976) 180 CLR 199 at 204 (Barwick CJ), 210 (Mason J, Stephen J agreeing) (a worker's compensation case).
56. Middleton v Kiama District Hospital [1970] 3 NSWR 136 at 138-139 per curiam (a worker's compensation case).
57. Petrohilos v Hunter at 346-347; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [109] (Meagher JA, Basten and Campbell JJA agreeing).
58. Ball v Newey (1988) 13 NSWLR 489 at 492 (Samuels JA, Hope JA agreeing); Tobin v Ezekiel at [109].
59. McKenzie v Baddeley [1991] NSWCA 197 (unreported judgment at 4) (Priestley JA, Hope AJA agreeing).
60. Middleton v Kiama Hospital at 138.
61. Middleton v Kiama Hospital at 138.
62. Alexander v Jansson [2010] NSWCA 176; 6 ASTLR 432 at [13] (Brereton J, Basten JA and Handley AJA agreeing).
63. Primary Judgment at [147]-[148].
64. Primary Judgment at [149].
65. New South Wales Law Reform Commission, Testator's Family Maintenance and Guardianship of Infants Act, 1916 (Report 28, 1977) at [2.6.8].
66. [1999] NSWSC 1168 (long-term financial support for a sibling); see also Hurst v Public Trustee [2000] NSWSC 1109.
67. Sassoon v Rose [2013] NSWCA 220 at [12] (Meagher JA, Gleeson JA agreeing).
68. That is, the ten matters set out at [83] above.
69. Primary Judgment at [187].
70. Jones (A Pseudonym) v Smith (A Pseudonym) at [40]. 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: 22 June 2017