Underwood v Gaudron

Underwood v Gaudron - [2015] NSWCA 269 - NSWCA 2015 case summary — Zoe

HEADNOTE [This headnote is not to be read as part of the judgment] Mrs Grace (Bonnie) Gaudron died on 21 August 2010; she was survived by four of her children: Mary Genevieve Gaudron (first respondent), Kathryn Teresa Gaudron (second respondent), Helen Underwood (appellant) and Paul Edward Gaudron. The appellant was estranged from her mother since mid-1987 after the deceased evicted her from her (the deceased's) home. Three years later the appellant changed her name and moved interstate where she re-married. The appellant did not communicate any of this to the deceased. By a will prepared in 2007, the deceased left legacies to four grandchildren and the residue to be divided equally between the first and second respondent. The will expressly made no provision for the two other siblings, in the case of the appellant, due to her lengthy estrangement from the deceased. The estate was finally distributed on 11 August 2011. On 29 October 2013 the appellant commenced proceedings in the Equity Division seeking an order for provision under the Succession Act 2006 (NSW), Ch 3. The summons was filed out of time; the appellant sought an extension of time noting that she found out about her mother's death only in November 2011. On 7 August 2014, Hallen J dismissed the summons finding that: (i) although the appellant established a need for provision, the 20 years of estrangement militated against making an order; and (ii) in any case, there had been no satisfactory explanation for the delay in commencing the proceedings to justify granting the extension of time. The appellant appealed the decision contending that: (i) the decision was affected by apprehended bias and/or pre-judgment on the part of the trial judge; (ii) the trial judge made fact finding errors with respect to the relationship of the deceased with the respondents and with the appellant, and that his discretion miscarried in placing too much weight on the estrangement and appellant's conduct, ignoring the deceased's contribution to the breakdown of the relationship; and (iii) the trial judge erred in dismissing the application for an extension of time. The Court (per Basten JA; Macfarlan and Ward JJA agreeing) held, dismissing the appeal. In relation to (i)

Where there is no suggestion of a personal relationship between the trial judge and the first respondent, the allegation of apprehended bias cannot be established by reference to the first respondent's seniority and standing in legal profession as a retired High Court judge, or the respondents' financial superiority: [22], [23], [30].
With respect to pre-judgment, even if, as the appellant alleged, the trial judge had written parts of the judgment before the hearing (on the basis that it included references to parts of an affidavit which was not read at trial), there was no disadvantage demonstrated to have arisen from it. Rather, if that had happened, it was likely to have facilitated the expeditious resolution of the case: [27]. Civil Procedure Act 2005 (NSW), s 56 referred to. In relation to (ii)
The finding that the relationship between the deceased and the respondents was close and supportive was not controversial and was supported by evidence: [44].
In making the finding about the breakdown in the relationship between the appellant and the deceased, the trial judge clearly considered that the abandonment of the relationship was mutual: [58]. To the extent that blame was attributed, the trial judge accepted the deceased's contemporaneous account of the appellant's threatening conduct which led to her seeking a court order for her eviction from the deceased's home: [63].
There is no presumptive testamentary entitlement for offspring and each case must be decided by an evaluation of all factors revealed by the evidence: [73]. Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 discussed.
The appeal Court will not interfere with the decision of the trial judge, unless error is established. In all material respects the trial judge's reasoning specific to facts in the case was sound and the final conclusion not to make an order was within the range of reasonable conclusions available on evidence: [77]; [98]. In relation to (iii)
The appellant's excuse for delay failed to justify adequately the passage of two years from when she found out about her mother's death in November 2011 to the commencement of the proceedings in October 2013: [85].
The estate had been distributed and both respondents provided evidence that they had disposed of their respective shares by the time the proceedings were commenced, hence there would have been prejudice (especially to the second respondent) had the extension been granted: [86], [88], [89].
Consequently the application should have been dismissed by the trial judge without full consideration of the substance of the claim: [89]. Succession Act 2006 (NSW), s 58(2) applied.

[6]

Grounds of appeal

The amended notice of appeal [4] contained 11 separate headings and 28 paragraphs, many with sub-paragraphs within them. It is convenient to group them according to the issues raised.
Following the broad structure of the judgment below, the first group of grounds alleged a miscarriage of the discretionary judgment required under s 59 of the Succession Act, as to whether "adequate provision" had been made under the will. [5] Those grounds (grounds 1-11 and 15-17) depended on the consideration given to matters of fact. Accordingly, it is convenient to deal with them after addressing the grounds which challenged the factual findings of the trial judge, which focused largely on the nature of the relationship between the appellant and the deceased (grounds 12-14, 20 and 21 - ground 21 simply alleged errors and omissions at a level of generality which fell short of identifying error and need not be addressed further).
A fourth category addressed the findings with respect to the delay in bringing the application (being ground 18 and its numerous sub-grounds).
A fifth basis of challenge related to the contingent refusal to make a notional estate order (ground 19). Because the appeal must be dismissed for other reasons, it will not be necessary to address this ground.
The final grouping which, broadly speaking, involved apprehended bias (grounds 22-28) should, in the ordinary course, be dealt with first: if the challenge is made good, the judgment below must be set aside. As explained below, the judgment is not open to challenge on that basis and the grounds must be rejected.
In addressing the topics in the order indicated above, it will be appropriate to set out the legal principles engaged by the circumstances of the case. The relevant principles can be stated briefly, as they arise: much of the lengthy judgment at trial consisted of the recitation of statements of principle from other cases, at a level of abstraction from the circumstances of the particular case. The appellant complained that "the facts of the proceedings in question do not warrant the judgment's length". The complaint was justified; in a case where the moving party had not always had (and might after the trial no longer have) legal representation, unnecessary length and complexity in a judgment is to be avoided.

[7]

Application to adduce further evidence

Before turning to the substance of the appeal, it is necessary to address the appellant's motion dated 26 January 2015 seeking to call further evidence on the hearing of the appeal. The power of the Court to receive further evidence extends to evidence concerning matters occurring after the trial [6] but in other circumstances only on "special grounds." [7] The motion itself identified a number of items of "additional evidence", most of which had no bearing on the issues which will ultimately need to be addressed, although some was uncontroversial. The motion was supported by an affidavit dated 26 January 2015 which annexed the evidence sought to be relied on. Amongst the matters which were immaterial were copies of documents designed to prove dates of service, a transcript of a directions hearing and emails to the Court transcription service questioning why argument as to objections to evidence was missing from the transcript.
Other matters were uncontroversial. For example, it was not in doubt that the appellant had changed her name from Margaret Helen Gaudron to Helen Audron in 1990. She sought to tender a certified copy of an instrument evidencing the change of name dated 18 July 1990. The precise date was immaterial. Similarly, she changed her name again upon marriage and tendered a copy of the marriage certificate recording her marriage to Dennis Underwood on 11 December 1995. The fact of the marriage was uncontroversial, as was the year: the precise date was immaterial. She also sought to tender evidence of a text message sent to her daughter, Jane Fuss on 11 November 2011 stating that she had only found out that day that her mother had died. Again, there was no dispute that she discovered the date of death on that date; the fact that she sought to contact her daughter on that day was irrelevant, though also not in dispute.
Of more potential significance were two medical certificates which were said to update earlier assessments of her physical and mental condition. However, neither certificate suggested any change from her condition immediately prior to trial.
Further material was filed on 27 July 2015, that is, less than one month before the hearing of the appeal. The appellant's affidavit of 21 July 2015 (filed on 27 July) sought to adduce evidence of further matters, namely: 1. the reason why she discontinued probate proceedings challenging the grant of letters of administration to the respondents; 2. the nature and extent of the litigation in which she was involved in Queensland which allegedly prevented her pursuing the family provision order on a timely basis; 3. the fact that a copy of the will was not provided to her brother Paul Edward Gaudron, and 4. a procedural chronology relating to matters arising since a directions hearing of 22 June 2015 in this Court. There was a miscellany of additional minor issues. The affidavit (with annexures) ran to 209 pages.
On 14 August 2015, less than two weeks before the hearing date for the appeal, the appellant filed another affidavit. The affidavit was a combination of submissions and references to further materials, including a "letter of support" from a psychologist dated 10 January 2011 and a letter from the solicitors for the respondents giving notice of objection to much of the evidence sought to be adduced on the appeal.
Finally, the appellant sought to rely on an affidavit sworn by her brother Paul Gaudron on 2 July 2015 and filed on 27 July 2015. That affidavit will be dealt with below in considering the only issues to which it was material.
In the initial stages of the oral hearing, the appellant agreed that the appropriate way to deal with the proposed further evidence would be for the Court to address the admissibility of the material, if reliance were placed on particular items in the course of argument. Subject to one related issue which will be identified shortly, none of the proffered further evidence had any bearing on the issues which are determinative of the appeal and which are addressed below. Accordingly, the motion to adduce further evidence should be dismissed.
The related issue concerned an affidavit sworn by the appellant prior to the trial which was not in fact read at the trial. The affidavit, variably referred to as dated 21 or 31 October 2013, did not constitute part of the evidence sought to be tendered on the appeal, but it did form the basis for an argument dealt with in the next section of this judgment (apprehension of bias) and, if somewhat tentatively, the appellant sought to provide copies to the Court. Ultimately, the appellant was discouraged from that course and did not press the material. The reason why it would not have assisted will be dealt with shortly.

[8]

Apprehended bias

Whilst bias is a disqualifying factor for a judicial officer, the general law, as correctly noted by the appellant in her written submissions, goes further. A judge is disqualified if "a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." [8] Nevertheless, bias (and an apprehension of bias) can arise in different ways. There appeared to be three aspects relied on by the appellant.
The first concerned the status and legal expertise of the first respondent, the Hon Mary Gaudron QC. It was suggested that the first respondent's seniority and standing in the legal profession (as a former judge of the High Court of Australia) gave rise to a subconscious bias on the part of the trial judge. It was also suggested that her financial standing disadvantaged the appellant.
Reliance on the standing of the first respondent in the legal profession elides concepts of professional respect and pre-judgment. No question of the legal expertise of any party was raised by the issues in this case. On the other hand, judges are regularly called upon to determine disputes involving respected members of the community. In the absence of a personal relationship (and none was suggested in the present case) the judge is both required and expected to determine the case without fear or favour, affection or ill-will. Indeed, not only was there no issue to be resolved as to the legal expertise or judgment of the first respondent (or any other party), but there was no issue as to her credibility, despite the appellant's assertions to the contrary.
So far as financial superiority was concerned, it was relevant that neither respondent sought to establish her own financial needs; there was, therefore, no comparative exercise to be undertaken. In any event, the financial advantage of a party cannot demonstrate apprehended bias on the part of the judge determining the proceedings.
A second thread to the argument was based upon the judge referring in his reasons to passages in the evidence of the appellant herself which were not relied upon at trial. That in itself was not shown to demonstrate bias against her, but it was said to demonstrate an element of pre-judgment because it implied that the reasons had been written (at least in part) before the hearing.
The material relied upon by the appellant can be demonstrated by reference to a passage in the judgment which the appellant asserted (without contradiction) could only have come from her affidavit of 31 October 2013, which was not read. She assured the Court (again without contradiction) that the facts were not to be found in any other evidence. The passage came in the judgment under the heading "Formal Matters" which were described as "uncontroversial." [9] The identified passage read as follows: [10] "The deceased was married to Edward John Michael Gaudron in May 1942. (There were several separations during the marriage, but it is unnecessary to detail the history of the marriage as Edward predeceased the deceased, having died in April 1982.)"
It was not in doubt that the judge had read the appellant's affidavit of 31 October 2013 because, as counsel for the appellant at trial commenced to read her evidence, he stated that he had "read the evidence in the proceedings before coming onto the bench subject to objections." [11] That being the case, it was possible that material from that affidavit found its way into the judgment because the judge had commenced the preparation of his reasons before the hearing, or because he had mistakenly referred to the affidavit after the hearing (it being with the court file), forgetting that it had not been read.
Although much weight is placed in the adversarial system on the oral hearing, it does not follow that a judge will come into court with no knowledge of the materials filed and expected to be relied upon in the course of the proceedings. Sometimes, as a result of administrative necessity, that is the case; nevertheless, the efficient administration of justice is usually furthered, rather than impeded, by the judge taking any available opportunity to become familiar with the issues in preparation for a hearing. Nor is such a course other than conducive to the proper assessment of where justice lies in the particular case. If the judge has had the opportunity to prepare notes, or a more substantive outline, of the legal principles and evidence, it is likely that he or she will be better placed to identify and therefore resolve the real issues in dispute expeditiously, in accordance with s 56 of the Civil Procedure Act 2005 (NSW). There was no basis for thinking that the appellant was in any way disadvantaged, if and to the extent that she was correct in her assumption that the judge had prepared aspects of his judgment in advance of the hearing.
It was not suggested that a reasonable apprehension of bias arose from this factor in any other way. For example, there was no suggestion that the trial judge had relied upon the unread evidence of the appellant as a basis for disbelieving her testimony. Nor was it suggested that the appellant's unread affidavit contained material prejudicial to her interests. (Indeed the family history recorded by the trial judge was set out in the appellant's chronology on the appeal.) Accordingly, there was no substance in this basis of complaint.
A third and final thread in the submissions was that the judge addressed her on occasion as "Ms Gaudron", being a name she had not used since July 1990 and "Helen Gaudron", a name she had never used. That is, although her original given and family names were Margaret Helen Gaudron, and she was referred to in her mother's will as Margaret Helen Gaudron, she was known as Margaret Gaudron. When she changed her name in 1990, (prior to her second marriage) she adopted the name Helen Audron.
If indeed the judge did address her in that manner (as the transcript recorded) and whatever her personal disapproval, such slips of the tongue cannot give rise to an apprehension of bias.
For these reasons, the grounds relating to an apprehension of bias must be rejected.

[9]

(a) inconsequential challenges

In dealing with the factual findings made by the trial judge, it is convenient to dispose, at the outset, of specific complaints which are of no consequence. First, the appellant sought to raise "suspicions" as to the validity of the deceased's will and its due execution. She also sought to challenge the value of the estate which had been distributed to the beneficiaries. She noted that the trial judge had referred to the deceased having left a "duly executed Will", made on 13 April 2007. [12] She submitted that the present appeal could not proceed until the correctness of the execution had been tested.
The appellant accepted that she had commenced probate proceedings seeking wider relief than a family provision order, but that the other proceedings had been abandoned shortly before the trial, [13] as a result of which the only orders at the trial sought (and by the notice of appeal) were for provision and with respect to ancillary matters. The attempt to attack the validity of the will, on the basis that it was an "assumption" underlying the orders she sought at trial, in circumstances where the validity had not been challenged at trial, involved a fundamental misconception as to the scope of the appeal. The Court declined to adjourn the proceedings to allow some other proceeding to be taken by way of challenge to the validity of the will; it also declined the appellant's invitation for it to examine material sought to be tendered as relevant to that exercise.
Secondly, the appellant alleged that the respondents had in some manner misrepresented to the Court the capacity of the first respondent's husband, who suffered from dementia, to renounce probate. A medical certificate dated 8 January 2010, relating to the first respondent (not her husband) stated in passing that her husband suffered from dementia. The proposed inference was that he must have lacked capacity to give instructions to his solicitor to renounce probate of the will, contrary to the affidavit of the solicitor. The point sought to be raised was obscure (if he lacked capacity to renounce probate, he must have lacked capacity to act as executor), but the issue had nothing to do with the order sought by the appellant, namely for provision from the estate. If it were thought to affect the credibility of the respondents, they were not cross-examined about it. The point was without substance.
Thirdly, the appellant submitted that the judgment below was "ultra vires" because it asserted, falsely, that her brother, Paul Gaudron had been served with "a prescribed notice", but had not commenced proceedings. [14] The appellant understood this to be a reference to a notice of her proceedings seeking a family provision order. Pursuant to s 61 of the Succession Act, the court is entitled to disregard the interests of any person who may be eligible to seek such an order but who has not made an application, if notice of the existing application and of the court's power to disregard such interests, has been served on the person concerned, or if the court determines that service of any such notice is "unnecessary, unreasonable or impracticable in the circumstances of the case."
A number of points may be raised in response to this challenge. Whether or not Paul Gaudron had been served with a notice, there was evidence that, although he had received nothing under his mother's will, the first respondent had paid to him half of her share, which effectively gave him a 25% share of the residuary estate. In consideration of that payment Paul Gaudron had executed a deed of settlement which recounted in the recitals the will, the grant of letters of administration, and the payment as a proportion of the net residue of the estate. The deed granted the respondents a release, among other things, from any claim pursuant to Pt 3.2.7 [sic] of the Succession Act, which was clearly intended to be a promise not to make an application under Pt 3.2 for a family provision order in relation to his mother's estate.
At trial the appellant submitted that the payment to her brother was a voluntary payment and should be disregarded, so that the first respondent would be treated as solely entitled to a one-half share of the residue of the estate. Whether or not the judge was correct in stating that Paul Gaudron had been "served with a prescribed notice" was of no consequence in relation to the outcome of the appellant's application.
The appellant sought to rely upon an affidavit of Paul Gaudron of 2 July 2015, which appeared to proffer a denial that he had said to the solicitors for the respondents that he wanted anything from the estate, or that he was going to contest the will, and asserted a belief that the first respondent's offer to pay him an amount from the deceased's estate was in fulfilment of a promise she had made on their father's death. Somewhat obliquely it may be inferred from the affidavit that he had not received notice of the appellant's application, although that is by no means clear. Even if this material were relevant, it is doubtful that it would be received on appeal: it is not evidence of matters occurring after the hearing. However, it is of no more than peripheral relevance and provides no assistance in resolving the primary issues to be resolved on the appeal. There are no circumstances favouring its reception; subject to consideration of the next matter, its tender should be rejected.
Fifthly, the appellant claimed that the judge had "changed the affidavit" of the solicitor for the respondents. That, however, was not a correct understanding of the somewhat awkwardly worded finding. The judge noted [15] that the solicitor had sworn an affidavit stating that Paul Gaudron had instituted a claim under the Succession Act, which was resolved by the payment to him from the first respondent. The judge did not accept that evidence as accurate, finding that "Paul did not commence proceedings, in any court, for a family provision order." [16] He said that he proposed to read the statement "as meaning that, following the receipt of a copy of the deceased's will, Paul threatened to commence proceedings."
Whether that inference was available or not is beside the point for the reasons discussed above. It would be futile to admit evidence from Paul Gaudron that he had made no threat, or even a request; such evidence would merely invite a dispute as to his understanding of the purpose of the deed of settlement, which could have no bearing on the outcome of the appeal. The complaint is without substance and would not be assisted by reliance on Mr Gaudron's evidence. Accordingly, his affidavit should be rejected.
Sixthly, the appellant sought to challenge the finding recorded by the trial judge that she (the appellant) had received a "sealed copy" of the will. The passage in the judgment in which this reference appears was directed to the date on which the appellant received notification of the content of the will, having discovered that her mother had died, namely on or shortly after 23 November 2011. [17] At that stage the appellant had legal assistance: on 28 November 2011 her solicitors wrote to each of the respondents noting that they (the solicitors) had received a copy of the letters of administration issued by the registry of the Supreme Court, "indicating that the sealed Grant of Letters of Administration with Will annexed was issued on 14th March, 2011." [18] No complaint was made by them as to the form of the material received: the purpose of the letter was to give notice that they had instructions that the appellant proposed to "make a claim on the estate." The significance of the letter in the chronology of events will be addressed below.
It appears likely that the underlying concern of the appellant about the form of the will provided with the letters of administration was related to her "suspicion" that the will was, for some reason, invalid. A hint as to the relevance of this concern appeared from the statement in her extraordinarily lengthy submission in this Court (unsupported by evidence) that her mother had made a previous will (sometime prior to 1982) which divided her estate equally between her four offspring. [19] For reasons already given, and whatever the underlying motive, the issue sought to be raised was immaterial.

[11]

Otherwise, the factual challenges focused upon what was described as "mis-characterising the relationship between the appellant and the deceased". [21] Subject to two specific qualifications, the gravamen of the submissions related to findings which were said not to be supported by the evidence. However, as will be noted shortly, each of the matters was the subject of submissions at trial which were specifically addressed by the trial judge.
The two matters of qualification may be dealt with briefly. First, there was a complaint that a question had been disallowed in re-examination of the appellant. Her counsel invited her to elaborate on the factors said by her, in the course of cross-examination, to have affected her relationship with the deceased whilst she was living with the deceased in 1985-1987, following the break-up of her own marriage. The question which was rejected was in the following terms: [22] "Mr Skinner [counsel for the respondents] also asked you about the eviction and you said there were other issues leading up to the eviction; can you describe to the Court what those other issues were?"
This occurred following a lengthy answer in cross-examination in which the appellant had given evidence as to the state of her relationship with her mother between 1985 and 1987 in the following terms: [23] "When I first moved in to live with my mother I was in a very difficult personal situation following my acrimonious divorce, the seven custody applications, the loss of my business and the loss of my unit as well as the loss of my career. I was penniless and I was homeless. I was also declared bankrupt. I sought support which was ultimately not forthcoming from my mother. I was in an extremely difficult situation and I suggest that my mother has admitted in her affidavits of absolutely seriously invading my privacy by going into the room and going through my personal papers and documents. It had also, I, after the eviction I did ring my mother four or five times and I went out and saw her four or five times and that was as if there'd been a brick wall put up between me and my mother. You could have had a better conversation with a total stranger than I was able to have with my mother and I see this totally as being she had actively made a decision to end the relationship and it was very evident that if I was to have any relationship with my mother it would have had to include a relationship with my elder sister due to the entwinement of my mother in my sister's affairs."
This evidence apparently came as something of a surprise to the cross-examiner, who then noted that the appellant had not previously stated in evidence that it was her mother who wished to end the relationship, a proposition with which she agreed. [24]
Later in the re-examination, Ms Catanzariti (counsel for the appellant) asked why the appellant had told Mr Skinner that she considered her mother was responsible, for the breakdown of the relationship. That question was also objected to and rephrased in the following terms: [25] "Why do you say now that it was your mother who wanted to end the relationship?" The question was allowed, over objection, and the appellant responded: "I met this brick wall with conversations after the ejection and I honestly felt that I was written out of the family."
The evidence which she was permitted to give in cross-examination might properly have been led in chief, through her affidavits. Such limitation as was placed on the re-examination was entirely appropriate in the circumstances. Further, it was not submitted in this Court that the appellant would have said anything in answer to the rejected question which had not been said either in cross-examination or in answer to the later question in re-examination. It is not possible to discern any prejudice to the appellant.
The second qualification to the general thrust of the evidential challenge involved a particular ground, to the effect that the judge had erred in "concentrating or distilling a complex lifelong relationship from isolated incidents." However, that again is not a fair characterisation of the trial process. The fact that the appellant had been omitted from the deceased's will was undoubtedly the result of the absence of any contact over a period of some 20 years - the will said so. Whether that state of affairs resulted from a failing on the part of the appellant, the deceased, or factors beyond their control, was an issue relevant to the application for family provision. It is undoubtedly true that the search for causes will usually be fraught with difficulty. It is a common concern of the court that attempts to resolve such questions often lead the parties to engage in detailed examination of the minutiae of family relationships over a lengthy period. The practice has been deplored by this Court. [26] It is apt to give rise to proceedings where the cost is out of all proportion to the amount realistically in issue and where detailed analysis is always likely to be incomplete and will usually do nothing to further the just resolution of the dispute. In any event, the course taken by the trial judge in the present proceeding was to resolve the dispute by reference to the evidence of the parties and their witnesses. There can be no complaint that, in taking that course, he acted inappropriately.
It is necessary, then, to return to the substance of the factual challenge.

[12]

The primary circumstances underlying the relationship between the appellant and the deceased must be identified in a little detail. The will, made in April 2007, contained a clause to the following effect: "In further definition of my wishes under this Will I say that I have expressly made no provision for my other daughter MARGARET HELEN GAUDRON as I have had no contact with her since 1990 and our relationship has broken down and I do not have any moral obligation to see to her welfare."
As indicated in the passage from the appellant's evidence set out above at [47], from approximately March 1985 the appellant had lived with her mother in her mother's Birrong home unit. She had moved there in some distress after the breakdown of her first marriage. The relationship between the deceased and the appellant, as recounted in an affidavit sworn by the deceased on 5 March 1987, had deteriorated since July 1986. [27] The deceased recounted a number of arguments with the appellant in the course of which the appellant had "screamed at" her mother and used "abusive language" towards her. The deceased further stated that on 26 January 1987 the appellant had thrown a half jug of coffee over her. Since that time, she said she had feared for her safety and peace and had not lived in the premises. She commenced proceedings against her daughter to recover possession of the premises. The appellant responded in an affidavit sworn on 31 March 1987 stating in part: "As regards the screaming at and throwing of a half jug of coffee over the Plaintiff, I contend that these instances occurred due to provocation on the Plaintiff's behalf." [28]
The "provocation" was not specified in the affidavit, but was said to have involved the deceased looking through the appellant's private papers in her room and possibly her unsympathetic response to the appellant's custody battles. [29] In response to the proceedings brought by her mother, the appellant did not voluntarily leave the premises, but requested the court to allow her to stay until approximately the middle of June 1987, to allow her time to find alternative accommodation. The court ordered her to vacate the premises, which she did. [30]
The trial judge accepted that the appellant made attempts to contact her mother again before leaving Sydney but was unable to contact her by telephone on a number of occasions. However, it appears that she did speak to her mother on one or more occasions, as a result of which she was able to form the view that she "could have had a better conversation with a total stranger" than she was able to have with her mother. [31]
What happened in the period between 1987 and 1990 was not revealed by the evidence. The judge inferred that the eviction proceedings (and, one might infer, the factors that led to those proceedings) were the end point in the relationship. The notation to the will suggested that communication at some level continued until 1990. The appellant's evidence was that she changed her name in 1990. [32] At that stage she was living in Queensland, having earlier relocated from Sydney to the north coast of NSW. The judge found at [59]: "From 1990, [the appellant] did not have anything more to do with the deceased. She accepted that she had not sent any Christmas cards or birthday cards to the deceased. She agreed that, when she married Dennis Underwood in 1994/1995, she did not inform the deceased of her marriage or invite her to the wedding. She did not, at any time, inform the deceased, that she had started to use the name 'Helen' or that she had adopted her husband's last name following their marriage. She did not tell the deceased where she was living, or provide her with any information to enable contact to be made with her."
It is clear that the abandonment of the relationship was mutual. The trial judge found: "[71] Yet, there is no evidence that the deceased took any steps to locate Helen during the period between 1990 and the date of her death or that she sought any information from any other person of her, or his, knowledge of Helen. [72] However, it does not assist Helen very much to say that the deceased also abandoned the relationship and did not take any steps to resurrect it. As is clear from the above evidence, the deceased did not know, directly, where Helen was living because, intentionally, Helen did not tell her. The deceased did not know, directly, that she had changed her name both before, and after, her marriage, because, again, Helen intentionally did not tell her. It is not surprising, in my view, that the deceased did not make contact with Helen. To my mind, leaving aside anything else, it is understandable that the deceased did not do so."
A factor of some significance in this assessment was the exchange in the course of cross-examination noted above and the appellant's acceptance that it was only in the witness box that she alleged that it was the deceased who made the decision not to have anything to do with her, rather than there being a mutual breakdown in the relationship. [33] The judge accepted that this was not a case where the estrangement was other than deep-seated and long-term. [34] Nor was it a case in which, prior to the estrangement, the appellant had been making financial or emotional contributions to the welfare of the deceased. [35] Rather, the judge accepted that the deceased (aged 69 years in 1987) had cause to bring the eviction proceedings, as a result of the threatening conduct of the appellant, [36] which she did not deny occurred.
Before turning to the specific challenges in the grounds of appeal, it is necessary to have regard to the judge's summary of the submissions made by the appellant on the issue of estrangement. The submissions specific to the circumstances were identified at [246] in the following passages: "(d) The causes of the estrangement were also relevant. So far as Helen was concerned, whilst her marriage was ending acrimoniously and whilst there were bitter custody disputes between her and her husband, she felt that the deceased was not supportive of the custody claim. Subsequently, the deceased evicted her from the Birrong home unit at a time when she was fragile and vulnerable. It was the deceased who commenced proceedings and obtained an order from the court. The deceased did not respect Helen's privacy by going into Helen's room and reading her personal papers. Finally, 'Helen was struggling under the long shadow cast by her very successful sister, Mary. Helen had personal and financial setbacks while Mary continued to excel and achieve. Helen perceived that the deceased had always favoured Mary ... and the deceased spent considerable time at Mary's house caring for Mary's children while Mary worked long hours ... For Helen's peace of mind she needed to start again in a new place with a new name'. (e) Helen did attempt to contact the deceased after she moved out, but it was difficult to do so. In 2011, she attempted 'reconciling with the deceased' but, by this time, the deceased had passed away'. The deceased made no effort to contact Helen. (f) The deceased had only alleged one incident of physical abuse. She did allege that there was verbal abuse, stating that there were a number of arguments during which Helen screamed at her and used abusive language. These complaints were not sufficiently serious to justify withholding all provision."
The trial judge eventually made findings as to the relationship between the appellant and the deceased in the following terms: "[312] I have also discussed the nature of Helen's relationship with the deceased. It appears that Helen demonstrated a complete indifference to, and neglect of, the deceased for the last 20 years of the deceased's life. As she stated, she 'wanted to start a new life', one which, so it would seem, did not involve the deceased and other members of the family. She even changed her name (before her marriage), which, no doubt, provided further disconnection with the deceased and Helen's siblings. The alienation of the deceased existed for a long period - in fact for about one third of Helen's life. [313] Helen's suggestion that the deceased was the cause of the breakdown of the relationship is not supported by the whole of the evidence. She could only speculate, as can the court, on what the deceased's response might have been had contact been made at some time during the 20 year period. The simple fact is that, despite contemplating doing so, from 1999 (9 years after she had last contacted the deceased), she did not do so for another 11 years. Even when Helen searched the Internet in 2011, she did so, not to give effect to the thoughts and contemplations that she said that she had, but following her solicitor suggesting that she might seek to repair the rift between her and the deceased. [314] To suggest that the deceased was, in some way, acting unreasonably in commencing proceedings for possession, is not supported by the events, which were not disputed, which preceded the proceedings. That Helen sought to justify her own conduct in relation to those events demonstrates a somewhat uncompromising, and self-absorbed, view of the events that led to the proceedings being instituted."

[13]

Challenges to reasoning of trial judge

Returning to the grounds of appeal, it will be apparent from what has been set out above that complaints that the trial judge did not take into account the appellant's financial and emotional circumstances during the period that she was living with the deceased and that the judge failed to take into account the causes of the estrangement and the deceased's contribution to the estrangement were not an accurate reflection of the judge's reasoning. The judge had before him some limited evidence of the deceased's view of the relationship, including her affidavit in the eviction proceedings, the fact of the eviction proceedings and the notation to the will. He also had more detailed evidence from the appellant, which he accepted in part, but in part rejected. In the final analysis, responsibility for the breakdown in the relationship was not a critical factor: more important was the fact of 20 years' separation.
To the extent that blame was attributed, the trial judge accepted the reasons given by the deceased in her 1987 affidavit for seeking to evict her daughter from her house; he also accepted that after 1990, by changing her name and not advising members of the family of her whereabouts or means of communication, the appellant bore at least an equal responsibility for the failure to re-establish the relationship.
The appellant also alleged that the judge failed to take into account that there was "no evidence of any callousness, anger or hostility during the estrangement" and also the absence of evidence that the deceased was "sad, upset, distressed, suffered, was disappointed or hurt by the estrangement".
Where such factors are revealed by the evidence, they may have implications for the outcome of an application for family provision; where they are not revealed, no necessary consequence follows from that fact. Subject to the formulation of the evaluative judgment required by the Succession Act, these complaints were without substance.

[14]

(a) legal principles

Section 59(2) of the Succession Act confers a power on the court to "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." Section 60 identifies the range of factors which may be considered in determining "whether to make a family provision order and the nature of any such order." [37]
Section 60(1) envisages that there are two determinations to which the factors it specifies may be relevant, namely whether the applicant is an eligible person and, secondly, whether an order should be made. The trial judge set out at some length principles stated in cases under earlier legislation which affirmed a "two stage approach to the latter question." [38] In Andrew v Andrew [39] I expressed the view that the current statutory scheme was not consistent with a two stage inquiry: different opinions have been expressed by other members of the Court, as noted in Burke v Burke. [40] Although the outcome of the case (and most cases) will not turn on this issue, the awkwardness of the two stage approach is revealed in the conclusions reached by the trial judge. Thus, he relied upon the breakdown of the relationship to form the view that, despite the applicant's lack of assets and total reliance on government welfare for her everyday needs, there was "no failure, on the part of the deceased, to make proper provision" for her. [41] The judge was then able to conclude in the following paragraph, with no further reasoning, that "the same considerations would, at the second stage, produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made" in favour of the appellant. [42]
If it were correct to adopt a two stage approach, there was some force in the appellant's submission that she should have succeeded at the first stage. Thus it was not in doubt that the will made no provision for her maintenance or advancement in life, let alone "adequate provision", within the meaning of s 59(1)(c). That she had material needs which might have been diminished by provision under the will was also uncontested. Accordingly, unless the reference to "adequate" provision is to be treated as engaging with the various factors which might provide a reason not to make an order, the appellant satisfied s 59(1)(c). If the need to assess adequacy for that purpose did encompass all the factors relevant to determining whether an order ought be made pursuant to sub-s (2), the elements of the two possible stages would be common; if they were not common, no analysis has been provided as to which factors are relevant only to s 59(1)(c) and which are relevant only in making a determination pursuant to s 59(2).
The point of the analysis is that the evaluative judgment required of the Court in determining whether to make an order is not rendered any more transparent, structured or precise by seeking to identify a two stage process. Where the statute does not require complexity, simplicity of analysis is to be preferred.
Nevertheless, the two stage approach does not demonstrate appellable error. The reasoning of the trial judge in declining to make an order may be reduced to the following principal propositions: 1. the deceased made no provision in her will for the appellant, being one of her four children; 2. "[j]udged by quantum and looked at through the prism of her financial and material circumstances, adequate provision for Helen's proper maintenance or advancement in life was not made by the Will"; [43] 3. the maximum amount that may be designated as notional estate was $321,756, [44] which was described as "very small"; [45] 4. the beneficiaries did not have competing needs; 5. the breakdown of the relationship between the appellant and the deceased which occurred 20 years prior to her death absolved the deceased of any moral obligation to provide for her, and 6. consequently, the Court was not persuaded to make a family provision order.
It is only par (e) with which the appellant could take issue (other than the final conclusion). The appellant sought to do so by suggesting: 1. failure to apply appropriate community standards (ground 3); 2. failure to identify the deceased as the instigator of the relationship breakdown (ground 5); 3. selectively relying on facts unfavourable to the appellant and her character (ground 8); 4. placing "disproportionate significance on the relationship between the [a]ppellant and the [d]eceased contrary to the principles of Andrew v Andrew … at [39] to [40], and [46] to [57]" (ground 9); 5. approaching the issue of the relationship as "displacing a testamentary entitlement contrary to the principles of Andrew v Andrew … at [17]-[21] and [46]-[57]" (ground 10); and 6. finding that the appellant was wholly responsible for the relationship breakdown (ground 12).
Despite complaining about the apportionment of blame for the breakdown of the relationship, the appellant appeared to accept that the critical question was not who was to blame but the application of community standards as to the propriety of her exclusion from any inheritance (ground 12). For the reasons explained above, this last proposition should be accepted, both as a matter of principle and as reflecting the course taken by the trial judge; accordingly, there is no need to refer again to the assessment by the judge of the breakdown and responsibility for it.
So far as the reliance upon Andrew v Andrew is concerned, it is wrong to suggest that the majority judgments, let alone the minority judgment, created any testamentary entitlement in an adult offspring. Double negatives are not always easy to follow, but, as explained by Allsop P [46] the error on the part of the trial judge in that case was to approach the claim before him as involving a "legal right … of the testator to make no provision" where love and support are withheld and thus to impose "the need of the claimant to justify her conduct." Rather, the trial judge is required by the statute to approach the matter (in the case of a long estrangement), not by reference to presumptions or contingent rights, but by an evaluation of all the relevant factors revealed by the evidence in the particular case. Andrew did not create any presumptive testamentary entitlement of an offspring: rather, it rejected (in the circumstances of that case) a presumptive right to disinherit. At least in that respect, Andrew does not assist the appellant.
The other point of reliance on Andrew was the suggestion that the judge had placed "disproportionate significance" on the breakdown in the relationship. In discussing estrangement, I said in Andrew at [40]: "It is a term sometimes applied to the 'natural' process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience."
The circumstances revealed in Andrew were significantly different, as the trial judge recognised, from those revealed by the evidence in the present case. The difference may best be encapsulated by reference to the approach of Allsop P in Andrew at [7]: "The estrangement of the appellant and her parents, relevantly, for present purposes, her mother, lies at the heart of this case. It is unexplained on the evidence. Sometimes such distance is easily explicable; here it is not. How a parent deals with an adult child in such circumstances will lead inevitably to the relevance or not of notions of moral duty or claim. Inevitably in such a case, the rhetorical question is asked: Why should a mother leave anything to an adult daughter who has drifted away over a long period and become estranged? The word 'should' in the question embodies various suppressed [premises] based on parental, filial and moral duties. If no articulation can be made as to why any parental duty recognised by society has been breached, why should the court intercede and interfere with the expressed testamentary wish?"
This was not a case in which estrangement occurred following adolescence; nor was the estrangement unexplained on the evidence; nor was it a case of an adult daughter drifting away over a long period.
The circumstances in which this Court will intervene to reverse the decision of the trial judge in a family provision case are relatively restricted. That is because error will not be found in an evaluative judgment reached by a trial judge merely because this Court would, making its own assessment, have reached a different conclusion. Rather, it is necessary to establish error as a matter of principle in the approach adopted by the trial judge. In Andrew, the Court identified error, which required it to make its own assessment of an appropriate outcome which did in fact (though it need not have) differ from that of the trial judge. The principles articulated in Andrew do not lead to the conclusion that the trial judge in the present case approached the matter on an erroneous basis. Rather, in all material respects, the reasoning specific to the facts of the case was sound. Nor was the conclusion (not to make an order) outside the range of reasonable conclusions available on the evidence.
Having reached a conclusion that the judgment of the trial judge, that no order should be made, should not be disturbed on appeal this Court is not required to consider other factors relied upon by the trial judge in support of the same conclusion. Nevertheless, the matter could and probably should have been dealt with on a more limited basis: that basis should be addressed.

[15]

Delay in making application

Section 58(2) imposes a limitation period, requiring that an application for a family provision order "must be made not later than 12 months after the date of death". There is a proviso, namely that the court may "otherwise order" on sufficient cause being shown.
The chronology in the present case involved the expiry of the limitation period on 20 August 2011. While it is true that the appellant did not hear of her mother's death during that 12 month period, it is also true that the reason for her ignorance was the estrangement, for which she was not blameless. As the judge recognised, those circumstances were not sufficient to warrant dismissal of the application, in the absence of something more.
The appellant found out about her mother's death in November 2011. She asked her solicitors, who were acting for her in relation to other matters, to contact her sisters to obtain evidence as to the administration of the estate. [47] On 23 November 2011, through them she obtained sealed particulars of the grant of letters of administration and a copy of her mother's will, although no inventory of property was then provided. [48] On 28 November 2011 her solicitors wrote to the respondents noting that their client had been disinherited and that she would seek to make a claim on the estate. The respondents were asked not to distribute the assets of the estate and to confirm receipt of notice of the claim. [49]
On 2 December 2011 the respondents' solicitors replied noting that, having received no indication of any contemplated claim within the relevant period the estate had been distributed and the respondents had therefore completed their obligations as administrators. The response to that information was the issue of the summons commencing the proceedings, which did not occur until 29 October 2013.
The appellant submitted on the appeal that the letter of 2 December 2011 was misleading in that it stated that the estate had been "distributed in full and accordingly there are no funds available to meet the claim". From this statement, she claimed to have understood the solicitor to be indicating that all the money had been spent by the beneficiaries.
In her affidavit of 16 December 2013, she summarised the letter as saying that "the estate had been distributed and the estate wound up and it was too late to bring a claim." She then noted that her solicitor had said that "he could not run the case in Sydney from Brisbane." That evidence was not consistent with the suggestion that she had been misled by the letter into thinking either that no claim was possible or that there was no money available to meet it in any event. However, in cross-examination she said that her solicitor (who was still acting for her at the time of the trial) had "advised the estate was distributed. End of story." [50]
The affidavit of 16 December 2013, set out in detail by the trial judge at [85], outlined the steps the appellant had taken between early 2012 and early 2013 to deal with ongoing litigation with the Queensland Department of Housing and to obtain assistance to commence proceedings in the Supreme Court. Accepting that she was a lay person, with no resources to obtain legal representation in this State, nor eligibility for legal aid for this purpose, she faced significant hurdles in pursuing her intended claim. For reasons which are not challenged, the trial judge was not satisfied that she had been given advice that she could not pursue a claim out of time, nor that she did not know of her rights to bring a claim until shortly before she said that she attended the Registry in Sydney with documents (albeit not appropriate for filing) in November 2012. Further, her conduct thereafter was dilatory, as it took the better part of a further year to commence proceedings. Finally, at no stage in that period did she seek to inform the respondents of the steps she was taking, following the letter of December 2011. The delay was thus explained in part, but by evidence which provided only a limited (or incomplete) excuse.
The respondents gave evidence that they had, in the meantime, changed their circumstances in reliance upon their entitlements under the will and the resultant distributions. Some $20,000 of legacies had been distributed, in relation to which no claim is made. So far as the first respondent is concerned, half of the distribution received by her was paid on 11 August 2011 to her brother, Paul Edward Gaudron, who had also received nothing under the mother's will.
Some of the appellant's submissions seem to suggest bad faith in that regard: the payment was described as "discriminatory" and "unauthorised". Although no claim had been made by him, it is difficult to understand the appellant's complaint that her brother should obtain a share of the estate, except to the extent that it would put money beyond her reasonable expectation of recovery.
The first respondent gave evidence that she had expended the balance of her share in making modifications to her home for the benefit of her husband who was by then confined to a wheelchair. The second respondent also provided evidence, by way of affidavit on which she was not cross-examined, that she had used the bulk of the moneys received from her mother's estate in the renovation and furnishing of her residence. The balance, she stated, was used for personal expenditure and general living expenses. She asserted that, if an order for provision were made, she would be forced to sell her residence.
There was thus clear evidence of prejudice resulting from the delay. That factor, added to the incomplete justification for the delay and lack of notice to the respondents, permitted the Court, unless satisfied on a preliminary consideration of a strong claim for a family provision order, to refuse to "otherwise order" pursuant to s 58(2). On that basis, the application should have been dismissed without a full consideration of the circumstances of the claim.

[17]

Sections 59 and 60 of the Succession Act 2006 (NSW)

Section 59 of the Succession Act will ordinarily require the Court to answer the following three questions: 1. Whether the applicant is an "eligible person"; 2. Whether the Court is satisfied that adequate provision for the applicant's proper maintenance, education or advancement in life has not been made; 3. If yes to (1) and (2), what provision, if any, ought be made for the applicant out of the deceased's estate.
The High Court's decision in Singer v Berghouse [1994] HCA 40; 181 CLR 201 indicated, in relation to a question similar to Question (2) arising under the previous legislation, that "all the circumstances" of the case were relevant including, not only the applicant's financial position and the size and nature of the deceased's estate, but also "the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty" (at 210).
The Succession Act's use of similar language to that in the previous legislation suggests that the legislature intended that that prior learning would have continued application. It is curious however that the list of considerations stated in s 60(2), including the applicant's and other persons' relationship to the deceased, are stated in s 60(1) to be relevant only to the determination of Questions (1) and (3) to which I have referred above. Question (2) is not referred to in this context but in light of the absence of an express prohibition, I consider on balance that the circumstances in s 60(2) may be taken into account in relation to Question (2), conformably with the position under the previous legislation.
The contrary view would be unlikely to produce a different outcome to an application for provision under the Succession Act. If Question (2) were to be answered solely by reference to financial and related matters, an affirmative answer would, as the primary judge recognised, likely have been required in the present case (Judgment [310]). Nevertheless, regard to the relationships involved would have pointed towards a negative answer to Question (3) and ultimately the same outcome, namely, dismissal of the application for provision.

[18]

The order dismissing the application for provision

In answering Questions (2) and (3) to which I have referred above, the primary judge was making a value judgment based upon his "own general knowledge and experience of current social conditions and standards" (Singer v Berghouse at 211 citing Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 502, see also Salmon v Osmond [2015] NSWCA 42 at [51]). In doing this his Honour was to be guided by his perception of "prevailing community standards of what is right and proper" (Phillip v James [2014] NSWCA 485; 85 NSWLR 619 at [113] citing Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 at [16]; see also Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646 at [11]-[12], [62]-[63]).
The primary judge found that the appellant abandoned her relationship with her mother some 20 years before her mother died. She made no effort to contact her mother in that period, did not inform the deceased of her re-marriage and changed her first name and surname. Moreover, the appellant "did not tell the deceased where she was living, or provide her with any information to enable contact to be made with her" (Judgment [59]). His Honour did not regard the apparent absence of any attempt by the deceased to contact the appellant in that period, or the reasons for the breakdown of the relationship at the beginning of that period, as of particular significance (see Judgment [315]). The absence of any relationship for that extensive period of time was what primarily led his Honour to decline to make an order for provision.
The principles of law relating to challenges to discretionary decisions applied to this appeal. These required the appellant to establish either some specific, material, error of fact or law or that the primary judge's decision was "unreasonable or plainly unjust" (House v The King [1936] HCA 40; 55 CLR 499 at 505). For the reasons that Basten JA gives, no specific error was established. Nor in my view did the appellant establish that the primary judge's decision not to order provision for the appellant out of the estate of her late mother was an unreasonable exercise of discretion which did not conform to prevailing community standards.
WARD JA: I agree with Basten JA.

[19]

Endnotes

Underwood v Gaudron [2014] NSWSC 1055 ("Underwood").
Underwood at [328].
Underwood at [318].
Dated 14 November 2014 and filed on 17 December 2014
Succession Act, s 59(1)(c) and (2).
Supreme Court Act, s 75A(7) and (9).
Supreme Court Act, s 75A(8).
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11].
Underwood at [11].
Underwood at [13].
Tcpt, 22/7/14, p 5(45).
Underwood at [16].
Notice of Discontinuance filed 4 June 2014.
Underwood at [38].
Underwood at [41].
Underwood at [42].
Underwood at [80].
Underwood at [81].
Appellant's submissions, 4 May 2015, par 327.
Underwood at [316].
Notice of appeal, ground 13.
Tcpt,22/07/2014, p 45(20).
Tcpt, p 39(18).
Tcpt, p 39(35)-(40).
Tcpt, p 52(35).
Hampson v Hampson [2010] NSWCA 359; 5 ASTLR 116 at [80] (Campbell JA, Giles JA and Handley AJA agreeing), cited by the trial judge at [230].
Underwood at [47].
Underwood at [49], par 4.
See evidence of appellant at [47] above.
Underwood at [53].
Underwood at [54].
Underwood at [58].
Underwood at [69].
Underwood at [73].
Underwood at [74].
Underwood at [76]-[77].
Succession Act, s 60(1)(b).
Underwood at [154] and [162], referring to the reasoning in Singer v Berghouse (1994) 181 CLR 201 at 208-210 and 211.
(2012) 81 NSWLR 656; [2012] NSWCA 308 at [41].
[2015] NSWCA 195 at [19]-[21] (Ward JA, Meagher and Emmett JJA agreeing).
Underwood at [317].
Underwood at [318].
Underwood at [310].
Underwood at [266].
Underwood at [311].
Andrew at [18].
Underwood at [79].
Underwood at [80].
Underwood at [81].
Tcpt, 22/07/14, p 24(10). 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: 08 September 2015

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Cases Cited (14)