Smith v Moore

Introduction

1. The following account of relevant factual matters is drawn from the affidavit, oral and documentary evidence adduced by the parties. Where the matters referred to are the subject of dispute between the parties, I have identified the dispute and set out my findings of fact.
2. It has not been necessary to resolve every factual dispute in order to determine Ken's family provision claim. The disputed matters included how frequently Ken mowed the lawn when living at home with the deceased in his teenage years and early twenties, how often he telephoned or sent cards to the deceased after moving to Queensland in his late twenties and precisely how often he visited the deceased. It is not necessary to make findings about matters such as this in order to determine Ken's family provision claim. As Campbell JA said in Hampson v Hampson [2010] NSWCA 359 at [79] (Giles JA and Handley AJA agreeing): "The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."