Curran v Harvey

HIS HONOUR: These reasons concern proceedings commenced under the Family Provision Act 1982 ("the Act"), even though that Act has been repealed, effective from 1 March 2009. Under clause 11(2) of Schedule 1 of the Succession Act 2006, the provisions of the Act "continue to apply in relation to the estate of a person who dies before the commencement of this clause, in so far as they are not affected by the operation of this Part". That clause commenced on 1 March 2009: s 2(1) Succession Amendment (Family Provision) Act 2008 and Government Gazette No. 38 of 20 February 2009, page 1036.

Donald Leslie Julian (hereafter called "the deceased") died on 27 February 2009, aged 79 years. It is in respect of his estate that the proceedings are concerned. The Plaintiff, Belinda Curran, is a daughter of the deceased's former de facto wife. The parties in the proceedings described her in the proceedings as "a stepdaughter" of the deceased, even though the deceased and her mother were never married.

The proceedings were commenced by originating Summons filed on 19 July 2010, that is, within the time prescribed by the Act (18 months from the date of the deceased's death). The Plaintiff seeks a family provision order and an order for costs. The former is an order made by the court under the Act in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. The Defendant, Phillip William Harvey, the executor appointed under the Will of the deceased, was the deceased's solicitor at the date of death. He opposes the Plaintiff's entitlement to relief.

There is no question, in the present case, of any provision being sought out of notional estate of the deceased.

Without any disrespect or undue familiarity intended, I shall refer to the Plaintiff, and where necessary, after introduction, to each of the other family members of the deceased by her, or his, given name.

On the day before the hearing, the Plaintiff, without opposition by the Defendant, brought the matter before me, urgently, by a notice of motion, in which she sought an order vacating the hearing dates and consequential relief.

I permitted the notice of motion to be filed in court upon the undertaking given by the Plaintiff's solicitor, by her counsel, to pay any filing fee payable on the filing of that notice of motion in the Registry.

The bases of the Plaintiff's application to vacate were, firstly, that a copy of two reports by the Plaintiff's treating psychologist, which reports had recently been served as annexures to an updating affidavit, sworn 5 March 2012, of the Plaintiff, had prompted the Defendant to write a letter dated 6 March 2012, stating that objection would be taken to both of the reports and that if the reports were to be relied upon "we will seek to adjourn the matter so that we can arrange for examination of your client by a psychiatrist". Secondly, the Plaintiff submitted that the Defendant's evidence was incomplete, in that the nature and value of the distributable estate had not been fully, or accurately, disclosed in the Defendant's affidavit sworn 5 March 2012.

The Defendant, who also appeared by counsel on the notice of motion, opposed the orders sought, upon the basis that I should uphold the objection to the late service of the psychologist's reports and should refuse to permit the Plaintiff to rely upon either report. It was submitted that the Defendant would be at "a distinct disadvantage" if the Plaintiff was able to rely upon either of the reports.

During argument, I pointed out that the Plaintiff, as early as 17 November 2010, had referred to "sexual assaults from an early age" by the deceased and had identified symptoms from which she then, and had, suffered, many of which were identified in one, or both, of the psychologist's reports. The Plaintiff had repeated some of those matters in her subsequent affidavit of 18 March 2011. It was accepted that neither the Defendant, nor other witnesses upon whose evidence the Defendant relied, had responded to the Plaintiff's evidence on these matters and no attempt had been made to have the Plaintiff examined following the service of her earlier affidavits. In those circumstances, I indicated that I was, then, unable to see how the Defendant had been prejudiced by the contents of the reports.

Having heard the submissions, I indicated that if the reports were to be relied upon by the Plaintiff, the psychologist should be available for cross-examination, if required by the Defendant, which cross-examination could take place via telephone link, since the psychologist was in Coffs Harbour, and because it was unlikely that her credibility would be in issue. In addition, I suggested that upon request by the Defendant's legal representatives, a copy of the psychologist's contemporaneous notes relating to the Plaintiff should be made available for inspection as soon as reasonably possible.

Subject to those matters, I was prepared to dispense with compliance with the relevant part of the Uniform Civil Procedure Rules 2005 in relation to the use of expert evidence in the proceedings (UCPR rule 31.19) and reliance upon affidavits served later than a reasonable time before the occasion for using it arose (UCPR rule 10.2).

In relation to the Plaintiff's second argument, I accepted the Defendant's submission that the Defendant's affidavit of 5 March 2012, was a satisfactory one and that it identified, with sufficient clarity, the current nature and value of the deceased's estate. In any event, I noted that there was no dispute that what had been identified as property of the deceased, including various parcels of real estate with a value of about $2.0 million and $1.0 million on deposit, was sufficient to satisfy the claim of the Plaintiff.

In the circumstances, I dismissed the Plaintiff's notice of motion and reserved costs and stated that I would include reasons for doing so in my judgment in the substantive proceedings.

The hearing proceeded on 13 March 2012. At the hearing, no objection was taken to either of the two psychologist's reports annexed to the Plaintiff's affidavit of 5 March 2012; a copy of her contemporaneous notes had been produced, and, in the events that happened, inspected, and relied upon, by the Defendant; the psychologist was not required for cross-examination; and the parties were able to agree upon the nature and value of the deceased's estate.

On the issue of costs of the motion, each party was partly successful, and, in those circumstances, the costs of the motion should be costs in the cause.

The deceased left a Will, made and published by him, on 7 March 2008.

Probate of the deceased's Will was granted, on 28 October 2009, to the Defendant.

The deceased's Will provided for: (i)Danielle Louise Curran - a daughter of the deceased - to receive: (a)Three parcels of real estate at Riverside Drive, Kinchela; (b)Real estate at Fairweather Lane, Kinchela; (c)One-quarter share real estate at Raymonds Lane, Collombatti; (d)One-quarter share quarry machinery/equipment situate at Raymonds Lane, Collombatti (e)One-half share of net proceeds of sale of three parcels of real estate at Right Bank Road, Kinchela; (f)One-half share of the residue of the estate. (ii)Amanda Lesley Slocombe - daughter of the deceased - to receive: (a)Real estate at Hat Head Road, Hat Head; (b)One-quarter share real estate at Raymonds Lane, Collombatti; (c)One-quarter share quarry machinery/equipment situate at Raymonds Lane, Collombatti; (d)One-half share of net proceeds of sale of three parcels of real estate at Right Bank Road, Kinchela; (e)One-half share of the residue of the estate. (iii)Garry Ball - a friend of the deceased - to receive: (a)One-half share real estate at Raymonds Lane, Collombatti; (b)One-half share quarry machinery/equipment situate at Raymonds Lane, Collombatti; (iv)Joshua Shannon Wells - a grandchild of the deceased - to receive: One-seventh share net proceeds of sale of real estate at Straight Street, Hat Head; (v)Jarryd Leslie Slocombe - a grandchild of the deceased - to receive: One-seventh share net proceeds of sale of real estate at Straight Street, Hat Head; (vi)Latesha Jennifer Slocombe - a grandchild of the deceased - to receive: One-seventh share net proceeds of sale of real estate at Straight Street, Hat Head; (vii)Darcy Thomas Winn - a grandchild of the deceased - to receive: One-seventh share net proceeds of sale of real estate at Straight Street, Hat Head; (viii)Kirstyn Leilani Winn - a grandchild of the deceased - to receive: One-seventh share net proceeds of sale of real estate at Straight Street, Hat Head; (ix)Rachel Louise Pidcock - a grandchild of the deceased - to receive: One-seventh share net proceeds of sale of real estate at Straight Street, Hat Head; (x)Joel Donald Berry - a grandchild of the deceased - to receive: One-seventh share net proceeds of sale of real estate at Straight Street, Hat Head.

With the exception of Mr Ball, the relationship between the deceased and the other beneficiaries is that of family members. No provision was made for Belinda in the Will of the deceased.

There is nothing in the Will, or otherwise in the evidence, to explain the deceased's reasons for omitting Belinda from his testamentary bounty. The Defendant was silent on the deceased's instructions in regard to his testamentary intentions. (Evidence of intentions and wishes of the deceased in respect of provision for an applicant is admissible in family provision proceedings: Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 481-482).

The deceased, at the date of his death, did not own the Right Bank Road, Kinchela, real estate, referred to in the Will.

The homestead, which was situated on the Fairweathers Lane, Kinchela real estate, was destroyed by fire in September 2010 and although an insurance claim has been made, it has not, as yet, been finalised. However, the insurer has offered an amount of $50,000 to satisfy that claim.

In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the estate of the deceased, at the date of death, was disclosed as having an estimated, or known, gross value of about $4,422,229. The estate was said to consist of various parcels of real estate referred to above (total value $3,591,250), cash in bank or financial institution on deposit ($376,944); livestock ($24,810); machinery and equipment ($237,430); and loans repayable to the deceased ($5,000 by Garry Ball; $61,307 by Danielle; and $125,486 by Amanda). (I have omitted any reference to the cents, which accounts for the small difference in addition, and shall continue to do so.)

Since the date of death, amounts totalling $321,744 have been paid to, or on behalf of, Amanda. A Nissan Nivara car, with a value of $6,000, belonging to the estate, has been transferred to her.

Since the date of death, amounts totalling $321,744 have been paid to, or on behalf of, Danielle. A Holden Commodore car, with a value of $2,350, belonging to the estate, has been transferred to her.

Debbie Sydenham, who is also a daughter of Belinda's mother, and an eligible person within the meaning of the Act, made a claim under the Act, which was settled, at mediation, in August 2011, for $300,000, inclusive of her costs. That amount has been paid to her out of the estate. Presumably, the Court made a family provision order in her favour in those proceedings.

The Defendant's costs and disbursements in connection with the administration of the deceased's estate, up to 5 March 2012, of $82,259, have been paid. These do not include the Defendant's legal costs and disbursements of these proceedings.

The parties agreed that, at the date of hearing, the balance of the deceased's estate has an estimated gross value of $3,289,047. The estate still consists of some parcels of real estate ($1,992,000), machinery and equipment ($99,300), cash in bank or in financial institution on deposit ($1,000,000), and an amount held in the solicitor's trust account ($10,954). Whilst the amount of the debts said to be owed by Danielle and Amanda have been included in the estimated gross value, these debts have not been repaid to the estate. Apparently, there may be some dispute that each is payable.

The cash amount held on deposit includes rent and agistment fees that have been earned by the estate since the date of death.

The parties ignored, in the calculations set out above, the amount of $50,000 that has been offered by the insurance company and to which reference has been made earlier. However, it is a contingent asset of the estate.

All taxation liabilities have been paid. Since the deceased's death, the Defendant, with the assistance of Mr Ball, has continued the operations of a quarry on one of the parcels of real estate. Mr Ball operates an earthmoving business and, as far as the quarry is concerned, he and the deceased worked together to obtain contracts for the supply and delivery of gravel. The gravel would come from the quarry for which the deceased (and later the estate) would be paid and Mr Ball would receive payment from the contract price for his cartage and delivery of the gravel. The estate has been reliant on Mr Ball in the continued operations of the quarry.

Tax invoices for any expenses relating to the quarry, including machinery repairs, which can be quite significant given the nature of the machinery involved, are first submitted to Mr Ball to confirm the amount sought is properly payable. The Defendant has paid accounts that have been approved by him as properly payable.

Other than the costs of the proceedings, to which I shall come next, the only contingent liability of the estate is the amount that may be sought to be recovered from the estate in the event that the Plaintiff is successful in her claim for a victim's compensation order (a matter to which I shall return later in these reasons), the maximum amount of which is believed to be $50,000.

In calculating the value of the net distributable estate at the date of hearing, the costs of the present proceedings should be taken into account, since a Plaintiff, if successful, will, normally, be entitled to an order that her costs be paid, whilst a Defendant, irrespective of the outcome of the proceedings, will, normally, be entitled to an order that his costs be paid.

The estimated costs and disbursements, including counsel's fees, of the Plaintiff, based upon a hearing with an estimate of two days duration, calculated on the indemnity basis, are estimated to be $67,500. Those costs and disbursements, calculated on the ordinary basis, are estimated to be $60,000, in each case, including GST. (The Plaintiff's counsel confirmed that there is no contingency fees agreement and no uplift factor applicable in calculating the estimates.) Belinda has not paid any part of these costs and disbursements.

The estimated costs and disbursements, including counsel's fees, of the Defendant, based upon a hearing with an estimate of two days duration, calculated on the indemnity basis, are estimated to be $85,941, including GST. Counsel for the Defendant confirmed that no part of these costs and disbursements have been paid out of the estate. He also confirmed that the costs include the costs of the proceedings commenced by Debbie settled at mediation.

If the estimates of the value of the balance of the distributable estate ($3,289,047), and if the costs and disbursements of each party ($145,941), ultimately, prove accurate, and if a costs order is made under the Act in favour of the Plaintiff for the amount of her costs (calculated on the ordinary basis), and of the Defendant's costs (on the indemnity basis), the value of the net estate available for distribution, is likely to be about $3,143,106. That is the value of the balance of the net distributable estate the parties accepted upon which I should determine the case. (I have been requested to determine the issue of costs after an opportunity has been given to the parties to consider these reasons for judgment.)

Using the estimates of the property of the deceased, the parties agree that the deceased's grandchildren will share a property with a value of $327,000; that Mr Ball will receive property with a value of $365,650; that Amanda will receive property (including a one half share of residue) with a value of $1,529,878 (including the amount of $321,744 and a car with a value of $6,000 already distributed to her) and Danielle will receive property (including a one half share of residue) with a value of $1,286,228 (including the amount of $321,744 and a car with a value of $2,350 already distributed to her).

The persons described as eligible persons, within the meaning of the Act, are Belinda, Debbie, Danielle and Amanda.

The beneficiaries, Joshua, Jarryd and Latesha, are the children of Amanda.

The beneficiaries, Rachel, Joel and Jeremy, are the children of Danielle. Danielle has two other children who are infants and who are not named as beneficiaries.

None of the deceased's grandchildren, or Mr Ball, is an eligible person within the meaning of the Act.

Since neither Amanda, nor Danielle, has made a claim under the Act, and because each has been given notice of Belinda's claim, I may disregard the interests of each: s 20 of the Act. I shall not do so. Each of the children of the deceased and the named grandchildren is a chosen object of testamentary bounty and it is for each of them that the deceased wished to provide by his Will. Later, I shall deal with the financial and material circumstances of each of the eligible persons.

I shall, however, ignore any rights that Debbie might have, since she has made a claim that has been settled and because the order for provision made in her favour has been satisfied out of the estate.

I am satisfied that the following facts are not in dispute or that they have been established by the evidence.

The deceased was born in August 1930 and was aged 78 years at the date of his death.

Belinda was born May 1969 and is aged almost 43 years.

Belinda is a daughter of the deceased's former de facto partner, Elaine Joyce Farrawell Curran. Elaine commenced to live with the deceased in about 1969 or 1970 and was his de facto partner until their separation in about 1981 or 1982. Belinda was a member of the household of which the deceased was a member and was wholly and partly dependent on him, whilst Elaine was the deceased's de facto spouse. During that time, the household, which was then at one of the deceased's properties at Kinchela, consisted, at different times, of the deceased, Elaine, Debbie, Belinda, Amanda and Danielle.

Amanda and Danielle are the biological children of the deceased and Elaine. Amanda was born in October 1971 and is currently aged 40 years. Danielle was born in November 1977 and is currently aged 34 years. Each is, therefore, a half-sister of Belinda and of Debbie.

Following the separation of the deceased and Elaine, she took her four children to a caravan park in Kempsey, where they lived together for about three months. They then moved to Port Macquarie where they lived together, at different places.

Following their separation, the deceased paid child support to Elaine for Amanda and Danielle. He would also give Amanda and Danielle extra money for clothing and other expenses.

With their move to Port Macquarie, contact with the deceased became irregular. However, following Danielle being placed in foster care, contact with the deceased became more regular.

Belinda returned to live in Kinchela after a few years in Port Macquarie. She went to high school there for a short time, but ceased her schooling in 1986 when she fell pregnant with her first child, Nathan, who was born in July 1986. She subsequently had three more children, namely Zachary, who was born in May 1989, Alana-Jeane, who was born in November 1990 and Zappa, who was born in September 1994. None of her children are beneficiaries named in the deceased's Will.

Belinda admits that she has been imprisoned several times during her life. Her incarceration has usually been for crimes associated with violence, although there was one offence for fraud (the precise nature of which was not revealed in the evidence). She has had other offences for driving whilst disqualified and driving an uninsured motor vehicle. She estimates that she has spent about 7 years in jail for the various offences of which she has been convicted.

Belinda also admitted that, since the age of about 25 years, she has been addicted to some illicit drugs. She has smoked marijuana and has taken heroin and amphetamines. She considers herself addicted to nicotine. She was also taking serapax to assist her sleep until relatively recently. Because of her financial position, she has not been able to purchase drugs "for weeks".

Elaine died in June 2010.

The Defendant was the deceased's solicitor for 10 to 15 years prior to the deceased's death. He was the draftsman of the deceased's Will probate of which was granted. He gave no evidence of any prior testamentary instruments of the deceased. Nor did he give any evidence of any prior testamentary intentions of the deceased, or of any instructions given to him at, or about the time, the last Will was prepared. His evidence was limited to the formal affidavits in which he disclosed the nature and value of the deceased's estate (as at the date the affidavit was sworn). He was not cross-examined.

Only the Plaintiff and Amanda were cross-examined.

Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in their application.

Belinda must first establish eligibility under the Act, as it is one of the necessary preconditions to an order being made: s 7 of the Act.

She claims eligibility to make the application under the following provision of s 6(1) of the Act: "(d)a person: (i)who was, at any particular time, wholly or partly dependent upon the deceased person, and (ii) who ... was, at that particular time or at any other time, a member of a household of which the deceased person was a member."

In relation to s 6(1)(d), there are two limbs. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being "a member of the household of which the deceased person was a member".

There is no dispute, in this case, that Belinda is an eligible person within s 6(1)(d) of the Act.

There is also no dispute that Belinda's application is one in relation to a deceased person in respect of whom administration has been granted, being an application made by a person in whose favour an order for provision out of the estate, or notional estate, of the deceased has not previously been made: s 7 of the Act.

As an eligible person within s 6(1)(d) of the definition of eligible person in the Act, it is necessary, pursuant to s 9(1) of the Act, for the Plaintiff to next establish that, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application. The court must refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors.

The Act does not specify the "factors which warrant the making of the application". In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J, in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) said that the "factors" are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

In Graziani v Graziani (NSWSC, 20 February 1987, unreported), a case involving a claim by stepchildren, Cohen J said at 10: "In order to look at the factors which warrant an application in the case of a plaintiff who establishes that he or she is an eligible person under par (d) of the definition, it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild of perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally. If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application."

Kirby P in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section, said at 13: "Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act."

In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, there was the view taken, at 13, that an application might be warranted "if the application has reasonable prospects of success" and that "[I]t need not be demonstrated for the purpose of subs9(1) that the application is entitled to succeed; i.e., that an order in favour of the applicant is warranted. Conversely, if an application is entitled to succeed, it is axiomatic that the making of the application was warranted." This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian.

In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686 at [9]: "In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."

In Diver v Neal [2009] NSWCA 54 (also (2009) 2ASTLR 89), Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1): "8 As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681."

More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said: "[62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope. [63] However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition. [64] On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time."

It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Campbell JA, and Young JA, as correct, and propose, in the circumstances, to follow their decisions. I have done so in other cases under the Act: see, for example, Fede v Dell'Arte [2010] NSWSC 1113.

If the applicant is an eligible person, and if she, or he, establishes factors which warrant the making of the application, the next question for determination is whether the provision made for her, or him, by the deceased, either during his, or her, lifetime, or out of the estate, is, at the time the court is determining whether or not to make an order, inadequate for the proper maintenance, education and advancement in life of that applicant: s 9(2) of the Act.

Thus, the power of the Court to make an order under the Act is enlivened by the formation of an opinion that the disposition of the deceased's estate effected by his, or her, Will is not such as to make adequate provision from his, or her, estate for the proper maintenance, education and advancement in life of the applicant.

No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute "inadequate provision for the proper maintenance, education and advancement in life".

The question is answered by an evaluation that necessarily takes the court to the provision actually made in the deceased's Will on the one hand, and to the needs for maintenance and advancement in life of the eligible person on the other. It has conventionally been said that this involves a consideration of the relationship between the deceased, the eligible person and other relevant persons having similar claims for adequate provision to be made for them: see Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, per Gibbs J., at 496).

It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment".

"Provision" is not defined by the Act, but it was noted in Diver v Neal at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

Neither are the words "maintenance" and the phrase "advancement in life" defined. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."

In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, King CJ said at 77: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128."

Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that . . . [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed at 208), it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, and income producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"

In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J noted at [114]: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."

In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."

The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance education and advancement in life: Devereaux -Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77], per Buss JA.

Each of the words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."

Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."

In Goodman v Windeyer, Gibbs J said at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."

Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), "adequate" and "proper" are independent concepts. He said at 12: "Adequate" relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. "Proper" depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..."

In Vigolo v Bostin at [114], Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed) at [18] stated: ""Proper maintenance" is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."

In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that "the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased ... was "adequate" for [that person's] maintenance, education and advancement in life, involve value judgments on which minds can legitimately differ", and "there are no definite criteria by which the question can be answered".

In applications under the Act, the High Court in Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201, has set out the two-stage approach that a court should take. At 209-210, it was said by Mason CJ, Deane J and McHugh J: "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, 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. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

In Vigolo v Bostin, Gleeson CJ at [5] and [74], and Gummow and Hayne JJ at [82]-[83] approved the two-stage test set out in Singer v Berghouse.

The first stage of the process provided for has been described as "the jurisdictional question". At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant.

Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 at [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).

Tobias JA said: "42. There can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred."

In Devereaux-Warnes v Hall [No 3] at [81]-[85], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."

In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the Plaintiff is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.

Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

A similar view was expressed by Campbell JA in Durham v Durham [2011] NSWCA 62: "81Under both the Family Provision Act and the Succession Act whether the jurisdictional question is satisfied is a matter of whether an evaluative standard has been met, rather than truly a matter of discretion. ... 82 A judge's decision as to the amount and type of an award to be made is a true discretionary decision, whether that decision is made under the Family Provision Act or under the Succession Act."

In addition to the above principles, s 9(3) of the Act should not be forgotten because the matters referred to therein are relevant not only in determining whether an order ought to be made, but also in determining the nature of the order which should be made. Section 9(3) provides: "In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration: (a)Any contribution made by the eligible person whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to: (i)the acquisition, conservation or improvement of property of the deceased person; or (ii)the welfare of the deceased person, including a contribution as a homemaker; (b)The character and conduct of the eligible person before and after the death of the deceased person; (c)Circumstances existing before and after the death of the deceased person; and (d)Any other matter which it considers necessary in the circumstances."

An order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, by way of an absolute interest, or a limited interest only, in property, or "in any other manner which the Court thinks fit".

The Court may also specify the manner in which a sum of money or other property is to be paid or made available to the applicant; where provision is required to be made by way of a sum of money, specify that the whole or any part of the sum shall bear interest at such rate as the Court thinks fit for such period as the Court thinks fit, and also make any order subject to such conditions as the Court thinks fit: s 11 of the Act. Importantly, in this case, s 11(1)(e) provides that the order for provision may "be made subject to such conditions as the Court thinks fit".

As earlier noted, the court, if it makes an order for provision, "may specify the beneficial entitlements in that estate which shall bear the burden of the provision and, in relation to each entitlement, the part of the burden it is to bear": s 13 of the Act.

An order made under the Act takes effect as a codicil to the Will: s 14 of the Act.

Section 15 provides for the making of consequential, or ancillary, orders, including, relevantly, orders transferring of property in the estate directly to the person in whose favour the order for provision is made or to any other person as trustee for that person: s 15(1)(a)(i) of the Act.

A written or oral statement made by a deceased person (for example, a deceased's reasons for making his, or her, Will), is admissible as evidence of any fact stated of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible: s 32(1) and s 32(2) of the Act. ("Statement" is specifically defined in s 32(1) to include "any representation of fact whether or not in writing".)

In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the deceased's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant".

In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."

The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation (Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90, per Nettle J at [63]). Freedom of testamentary disposition remains a prominent feature of the Australian legal system: Goodsell v Wellington [2011] NSWSC 1232; Madden-Smith v Madden [2012] NSWSC 146, per Pembroke J, at [30]-[34].

Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: The Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

As Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, it is not appropriate to endeavour to achieve a "fair" disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance etc of an eligible applicant.

The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that an applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959, per Chapman J at 966.

Promises made and expectations raised by a deceased have always been regarded as relevant to the ascertainment of what is proper provision for an applicant (Re Anderson (deceased) (1975) 11 SASR 276, per Zelling J at 284; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, per Gibbs J at 148). This is particularly so where an applicant has relied to his, or her, detriment on any such promise or expectation: Vukic v Grbin & Ors; Estate of Zvonko Grbin [2006] NSWSC 41, per Brereton J.

All of the financial needs of the applicant have to be taken into account and considered by reference to the other factors referred to in section 9(3) of the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, per Windeyer at [56]. Nor does it follow that if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams.

The lack of reserves to meet demands, particularly of ill health, which become more likely with the advancing years is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003), per Templeman J at [178] and [179]; Crossman and Anor v Riedel and Ors [2004] ACTSC 127, per Gray J at [49]. Likewise, financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297, per Wheeler J at [43].

The resources and needs of other claimants on the deceased's bounty are to be taken into account in determining a claim under the Act: Vigolo v Bostin at [122]; Foley v Ellis at [88] and [89]; Carey v Robson [2010] NSWCA 212, per Hodgson JA at [15].

Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased. The Act requires, in such circumstances, for the deceased's intention to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J at [45].

The Act is not legislation which permits provision to reward past services: Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, per Windeyer J at 137.

Nor does a claim under the Act encompass reparations, or compensation, to an applicant for the deceased having failed in his, or her, legal, or moral, duty to be a good and responsible parent of the child: Re Bull; Bentley v Brennan [2006] VSC 113, per Byrne J at [30].

As I said in Savic and Ors v Kim [2010] NSWSC 1401 at [82]: "It is not the purpose of the Act to punish, or redress, past bad, or unfeeling parental behaviour, where that behaviour does not still impinge on the applicant's present financial situation."

The Act was "not passed to enable a Court, perhaps many years after the event, to make retrospective reparation to a person in respect of whom a deceased had failed years earlier, to comply with a legal, or familial, or moral obligation, where any effect of that failure had not continued up to the deceased's death": Re Jennings Dec'd ([1993] EWCA Civ 10; [1994] Ch 286, per Sir John May. The authority of the court to intervene does not depend simply upon a mere demonstration of morally inadequate behaviour on the part of the deceased: Baird v National Mutual Trustees Ltd & Attorney General for State of Victoria (Supreme Court of Victoria, 22 November 1995, unreported, per Harper J).

Also, it is not the function of the court to provide a legacy, by way of damages, for abuse or otherwise. Immoral conduct of the deceased, whilst it may provide a necessary explanation for the conduct of an applicant towards him, or her, and may even provide an explanation for the applicant's mental state (if established), giving rise to additional needs, such conduct does not provide the yardstick by which provision for the Plaintiff should be measured: Cameron v Cameron [2009] SASC 27; Williamson v Williamson at [125].

This does not mean that the deceased's conduct will be irrelevant to his, or her, duty to make provision for an applicant. Where that conduct has the effect of depriving an applicant for provision of opportunities in life, or otherwise, and there is some causal connection between it and the applicant's need for provision, the court may take that into account in determining whether proper provision has been made: Litchfield v Smith & Tingate [2010] VSC 466, per Hargrave J at [57]; Williamson v Williamson [2011] NSWSC 228.

On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) recently noted, in Hampson v Hampson [2010] NSWCA 359, at [80]: "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."

In Hampson v Hampson, at [95], Campbell JA also noted that "[H]aving engaged in illegal conduct is not a bar to a claim under the Act". In that case, the Plaintiff had been found to have a history of using and cultivating marijuana.

In West v France [2010] NSWSC 845, I said: "84 Neither does the fact of the Plaintiff's criminal history disentitle him to provision. As White J noted in Hastings v Hastings, at 40, "a criminal record is not as such a bar to a claim under the Act. A good example is Hoadley v Hoadley (Supreme Court of New South Wales, Young J, 17 February 1987, unreported). There, Young J (as his Honour then was) made an order for provision in favour of an adult child who had spent 20 years in prison, where his Honour considered there would be good prospects of rehabilitation which an order for provision would promote"."

However, Campbell JA in Hampson v Hampson went on to say: "95... However, illegal conduct by an applicant can sometimes bring consequences that are relevant circumstances, or be a part of a bigger picture that is a relevant circumstance. One example is Hastings v Hastings [2008] NSWSC 1310, where the applicant, a son of the relevant deceased, had been involved in serious crimes involving the importation and distribution of marijuana in America. His arrest on drug running charges received newspaper publicity in Australia, that reached the deceased's community. The fact that the deceased "felt she was shunned and was embarrassed by the publicity" ([38]) was an element of the relationship between the applicant and the deceased that could legitimately be taken into account. His conviction on another occasion resulted in not only a prison term, but also forfeiture of his assets. While the applicant had poor financial circumstances, that was largely due to his property having been forfeited. That was another relevant matter to take into account in deciding what was adequate provision for his proper maintenance and advancement in life. 96 Another aspect of marijuana use that could in some circumstances be relevant to the jurisdictional question is the tendency of regular users to spend significant amounts of money in feeding their habit. A tendency on the part of an applicant to waste money on items that are either of no use or are positively damaging to himself can enter into what is adequate provision for proper maintenance of that applicant. To the extent to which it is still of use to refer in Family Provision Act legislation to the provision that a wise and just husband or father fully aware of all the relevant circumstances would have made (cf Bosch v Perpetual Trustee Co [1938] AC 463 at 479; McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572; Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 209; Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [15]- [17] per Gleeson CJ, cf at [60]-[63] per Gummow and Hayne JJ, cf [113]-[121] per Callinan and Heydon JJ), in my view marijuana use is a matter that the wise and just parent would be likely to take into account in deciding to make provision for a child, or in fixing on the type and amount of provision to make for a child. Thus, it can be taken into account by the court in deciding whether provision made for a child is inadequate for proper maintenance, education and advancement in life, and also in deciding what would be adequate for proper maintenance, education and advancement in life."

There does not seem to be any rule to the effect that proper provision for an adult and presently able-bodied applicant could not extend (in an appropriate case) to providing him, or her, with a house, or money to buy one: Mayfield v Lloyd-Williams at [109]-[110], per White J; Drayson v Drayson [2011] NSWSC 965 at [116], per Ward J. In the present case, Belinda is hardly "able bodied".

This is a reasonably large estate. In Re Buckland deceased [1966] VR 404, Adam J, at 415, said: "I consider the proper conclusion to be drawn from the authorities is that the court's jurisdiction, whatever the size of the estate, is limited by the claimant's need for maintenance and support; but that the maintenance and support to which he or she may for this purpose be treated as needing is that appropriate to his or her station or condition in life. ... The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance."

An appeal from the judgment of Adam J was dismissed by the High Court in May 1966. The High Court found no significant error of fact or of law in the reasons for judgment of the trial judge, and could not conclude that the amount of the provision ordered in the circumstances of the case, stemmed from some misconception of fact or from some error or misapplication of principle: Buckland v Trustees Executors and Agency Co. Limited (1966) 40 ALJR 164.

In Anasson v Phillips (NSWSC, 4 March, 1988, unreported), Young J (as his Honour then was) said at 20-21: "With a very large estate ... there is great temptation on a Court to be overgenerous with other people's money. This is especially so when the Court can see that Plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way, as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes, and it is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the Court has no power to rewrite the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty. If the estate is a large one, the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the Plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the Plaintiffs. In particular, the lifestyle that has been enjoyed by the Plaintiffs, because they have been associated with a wealthy testatrix, is a relevant factor."

These last two mentioned cases have been referred to, and followed, many times. They remain relevant. Yet, it must also be remembered, as McLaughlin AsJ stated in Lumb v McMillan [2007] NSWSC 386, at [26]: "The ample size of the estate does not justify the Court in being profligate in disposing of the assets of the Deceased and in awarding to each Plaintiff which is more than that to which that Plaintiff would be entitled. The Court should do no more than remedy the failure on the part of the Deceased to make adequate provision for the proper maintenance of each Plaintiff."

I make it clear that I do not intend what I have described as "applicable legal principles" or other "general principles", to be elevated into rules of law, or the discretion, at the second stage, to be constrained by statements of principle found in dicta in decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions the terms of which must remain firmly in mind.

In this case, there is an unusual factor that bears on the quality of the relationship of Belinda and the deceased.

There was some dispute about their relationship. What cannot be disputed, however, is that their relationship was one of affinity, as distinct from consanguinity. The basis of their relationship, at least between about 1970 and 1982, was the relationship of the deceased with Elaine, the natural mother of Belinda. Thereafter, for other reasons, their relationship continued.

I am satisfied that, during the period of Elaine's relationship with the deceased, and thereafter, Belinda recognised the deceased as if he were her father and until his death referred to him as "Dad". In my view, the relationship was a quasi-parental one.

At various times, thereafter, as an adult, she lived in one of two properties owned by the deceased. Whether she was "squatting" as alleged by Amanda, and whether the deceased did not really want her to remain living in one or other of those properties, does not really matter, as there is no evidence that he took any steps, formal or otherwise, to remove her, or have her removed. It is clear that he knew that she was living in one, or other, of his properties at different times. Whilst his reticence to forcibly evict her is explained, no reason why he "could not remove her" legally is advanced. I remember that the Defendant was the deceased's solicitor for 10 or 15 years.

I also note Belinda's evidence that the deceased, on a number of different occasions, made reference to part of the Fairweather Lane Kinchela property, particularly the house and around the yard, being for her. Importantly, her evidence does not exaggerate what he is said to have promised.

On this aspect, I have noted Amanda's evidence regarding her conversations with the deceased. This would not be the first case in which the deceased is recorded as having spoken, in diametrically opposite terms, to different people, particularly family members.

Belinda did receive some modest monetary benefits from the deceased during his life time. Her evidence on this topic was a little confused. In her affidavit, she said that she received a couple of hundred dollars over a period of 9 years, whereas in her oral evidence she described what she received as "heaps".

I think it likely that the deceased refused to give her financial assistance if he thought she was likely to spend it on drugs. But, at other times, he probably did provide her with some money when she needed it.

I accept Amanda's evidence that Belinda's drug taking, conduct at times, and her criminal conduct, upset the deceased. However, there is no evidence to suggest it was her conduct that motivated him to make no provision for her. There is simply no evidence explaining the omission of Belinda completely from the deceased's bounty. Not even Amanda advances any reasons, stated to her by the deceased, for excluding Belinda from his testamentary bounty.

Very fairly, if I may say, counsel for the Defendant, did not submit that Belinda's conduct or character was sufficient to disentitle her completely to relief: In re The Will of Gilbert (1946) 46 SR (NSW) 318, at 326. He did, however, submit that her character and conduct should be taken into account as provided for in the Act.

I am satisfied that the relationship of the deceased and Belinda was, generally, one in which the deceased, at various times, when she needed it, continued to provide her with financial, and other, assistance. The relationship of affinity between them continued until the deceased's death despite the rupture of the relationship between the deceased and Elaine in 1981 or 1982. It was a long relationship.

I am also satisfied, having observed Belinda in the witness box, that despite what has been alleged about his conduct, she loved, and continues to love, the deceased as a parent. I have no doubt that she feels an emotional bond with the deceased.

In this regard, I note her statements recorded in the psychologist's notes in September 2010 that "she wants the court to say that she is equal to her sisters Danielle and Amanda" and in October 2010 that "Dad was her Dad too but family doesn't see that".

Initially, I considered, and debated with counsel, the question whether I was being asked to determine the truth of the allegations made by Belinda regarding the conduct of the deceased towards her. There are, of course, two aspects of that conduct, the first relating to events before Belinda reached the age of 16 years and the second relating to their relationship after that time.

Mr A Hill, counsel for the Defendant, informed me that he was going to submit that I should not accept the evidence of the Plaintiff on both aspects. Mr J Armfield, leading counsel for the Plaintiff, said that he did not propose to cross-examine Amanda on the topic as agreement had been reached that the Defendant "would not take a Browne v Dunn point".

Mr Armfield also stated, without demur from Mr Hill: "Both of us have really taken the approach that the court was not going to be asked to decide the actual question, the issue was is she suffering from this condition and I was proceeding on the basis she is eligible and she suffers from that condition, having regard to the uncontested facts and she is in the position of a disabled child to which the deceased owed a greater obligation."

Whilst a similar approach was adopted by me in Williamson v Williamson, I did so upon the bases that I had been requested by the parties to make no finding about whether abuse alleged in that case did, or did not, occur; because the Defendant did not know one way, or the other, whether the Plaintiff had been abused as alleged, but the Plaintiff's belief that she had been was a sufficient, and satisfactory, explanation for her conduct towards the deceased and their estrangement; and because the Defendant acknowledged that the alleged sexual, and other, abuse of the Plaintiff by the deceased, whether it, in fact, occurred, had a profound effect upon the Plaintiff.

In this case, importantly, there is evidence from Amanda, upon which the Defendant relies, which puts in issue the Plaintiff's evidence about the deceased's conduct at the time before Belinda was 16 years old. Conversations with the deceased are relied upon and what the deceased said is admissible: s 32 of the Act. Based upon that, and other, evidence, the court was to be asked to reject the evidence of the Plaintiff on the topic.

The character and conduct of the Plaintiff, both before, and after, the death of the deceased is a matter that may be taken into account in determining what provision (if any) ought to be made in her favour (s 9(3)(b) of the Act). If I did not accept the evidence of the Plaintiff because I concluded that she intentionally invented the allegations, her conduct in making those allegations would be relevant because of the seriousness of false allegations having been made against the deceased. If I accepted her evidence, the conduct of the deceased would be a circumstance existing before death that could be relevant to factors warranting the making of the Plaintiff's application as well as to the extent of the obligation owed to the Plaintiff by the deceased to make provision for her (see, s 9(3)(c) and (d) of the Act).

Ultimately, I am satisfied, on this topic, in respect of each period, that there are really only two distinct alternatives, each involving discreditable (and in the first period, criminal) conduct, which require me to determine the issue. (I have discounted the possibility that Belinda's mental state was such that it caused her to invent the allegations of her sexual relationship with the deceased, thereby avoiding any discreditable conduct on her part since there is no evidence to support that possibility.)

Belinda asserts that the deceased sexually assaulted her "from an early age". She says that he would have sexual intercourse with her and that a sexual relationship continued during most of her life, with brief breaks whilst she was in a relationship with one, or other, of her two partners.

In her affidavits, she made detailed allegations about the events, including the different places at which she and the deceased would have sexual relations and what the deceased would say to her at different times in relation to their sexual contact. She asserts that as recently as six months before his death, they had a sexual encounter.

The Defendant did not respond, in any way, to the allegations of a sexual relationship existing between the deceased and Belinda as stated in her affidavits. Nor did Danielle.

Amanda resisted the imputations made against the deceased. She stated that she and Belinda would share a bedroom when they lived together with the deceased and that she never saw any sexual assaults and that Belinda never made any complaint to her about any such assaults.

Another part of Amanda's affidavit evidence in reply to Belinda's allegations was not read, as it was not in admissible form, but I granted leave to adduce that evidence orally.

Belinda was cross-examined on the topic. Her evidence was as follows: "Q. Now, I'm going to take you to this part of the - you have read the affidavit of your sister Amanda, haven't you? A. Okay, yes. Q. Now, I'm going to suggest to you this: that in about 1991 you wrote a letter to your father and in that you threatened that if he did not give you money you would say that he had molested you. Now, why are you shaking your head before I finish? A. Because I read it and it's a lie. I love my sister, but it's a lie. Q. Just listen to the question. I'm suggesting to you that in about 1991, you wrote a letter to your father and in that letter you said to him that you would say that he molested you as a child unless he gave you money? A. Yes, that's a - dad gave me heaps. He already gave me a lot. I love my sister and I love dad. Q. Yes, but I'm putting to you that in about 1991 you wrote a letter to your father-- A. No. Q. --and you said to him in that letter-- A. No. Q. --that if he didn't give you money, that you would say that he had molested you as a child? A. (Witness shakes head). Q. You say that didn't happen? A. (Witness shakes head). Q. The next thing I want to put to you is this: that you were, not long before your father's death, with your sister Amanda drinking on the verandah of her home? A. Sorry, when was that? Q. Just not long before your father's death, about 2009? A. Yeah, about two weeks, or so. Q. And you said to your sister Amanda that your - the deceased, your father as you call him, had molested you as a child? A. I don't recall saying anything to Amanda about any of this. Ever. Q. I'm putting to you that you did, just so that you understand? A. Sure. Q. That Amanda then went in and telephoned your father and told him that you said he had molested you as a child? A. Amanda accused me, yes. But I did not say or deny or say that ever. Q. When you say she accused you-- A. She said people were saying, "You have said this, this, this." Because people had to talk. They are gossipmongers. Q. Would you listen to me? A. Sorry, go on. Q. That Amanda went in from the verandah? A. Yes. Q. And picked up the telephone and telephoned your father - do you recall that or not? A. I don't know if she did. Q. Well-- A. Amanda lies. HIS HONOUR: Just a moment, Mr Hill. Q. When you say you don't know whether she told your father, do you recollect the events? A. I remember having a drinking with her, yes. Q. Did you see her go inside? A. Yes. Q. And pick up the telephone? A. No, no, no. The telephone was actually on the verandah. It's a walk-around one. And, yeah. HILL Q. And she told you that your father said that you and him would go to the police then and sort this out? A. Yeah, she - she has since said that to me. I don't remember her saying that to me then. She knows I would have rang dad. Q. And that you picked up the telephone and said to your father: "Don't worry about it, I was only making it up." A. No. No."

It is next necessary to set out the oral evidence given by Amanda. She said in her evidence in chief: "Q. Now, I want to take you back to the early 1990s. Your father said something to you regarding your half sister Belinda? A. (Witness nods). Q. Can you tell us what that was? A. He said that she had rang and I asked "Why?", and he said that she wanted money. I said, "What for?" He said, "For the kids." And I said, "Are you going to give it to her?" And he said that she said if he didn't, she was going to go public with a letter that she had previously written him, accusing him of molesting her when she was little. Q. All right. Was anything said? A. And I said to him, "Did you do it?" And he said, "Never." Q. Now, I understand there was a time just prior to your father's death when you were with your sister Belinda? A. (Witness nods). Q. Happening on the verandah of your house, or something? A. Yes. Q. Do you recall when that was? A. It was probably I think it was the year before dad died. Q. Yes. A. We were there. There was me, Belinda and a guy from Hat Head, and we are having a drink. And we got into an argument over something. Then, she started going on about dad's supposedly molesting her when she was little. I got up and rang dad and said to dad, "She's here accusing you of molesting her." And he said, "Tell her let's go up to the police and get this over and done with once and for all and sort it out." And she got on the phone and said that she would it was a lie, she was making it up, and slammed the phone down and broke my phone."

Her evidence in cross-examination was: "Q. You have given evidence about a conversation that you say took place in 1991 between yourself and your father? A. Mmm mmm. Q. Where did this conversation take place? A. At the cement plant. Q. I see. And he made reference there to a letter, is that right? A. Yes. Q. You haven't got a copy of the letter? A. No. Q. You have never seen a copy of the letter-- A. No. ... Q. I am suggesting to you this conversation in 1991 never took place. What do you say to that? A. Well, it did. Q. Now, the conversation in 2009, this was at xxx xxx xxxx xxxx, is that right? A. Yep. Q. And this was a conversation which you say took place on the verandah? A. Yes. Q. And someone besides yourself and Belinda was there? A. Yes. Q. Who was there? A. Michael Edwards. ... Q. I beg your pardon? A. Michael Edwards. Q. Michael Edwards? A. Yes. Q. And where does he live? A. Hat Head. Q. Is he a friend of yours? A. Oh, I know him. I wouldn't say he is a friend. Q. There is no reason that you couldn't have called him in these proceedings if you had wanted to, correct? A. I suppose so. Q. And is this the position, that the phone that you have got at your property is one of those type of hands-free phones that you can walk around and use? A. No. Q. I am suggesting to you it is not inside the house? A. It is inside the house. On the wall. Q. And again I am suggesting to you that this conversation is something which you have made up? A. No. ... Q. And indeed, over the years, you would accept the proposition that there have been many occasions when your father has been with Belinda and you haven't been present, correct? A. Correct. Q. You are very unhappy, aren't you, about the fact that these proceedings have been brought by Belinda against your father's estate, correct? A. Correct. Q. And in broad terms, you are a beneficiary of this estate of something in the order of about one and a half million dollars, correct? A. Correct. Q. And you resent very much the prospect of any of that money being given to Belinda, correct? A. Correct. Q. Further, your children are beneficiaries under the deceased's will, aren't they? A. Yes. Q. You resent the prospect of any of their money as you see it being given to Belinda? A. Yes. Q. And I want to suggest to you that one of the reasons why you are motivated to make up these conversations in 2009 and 1991 is a desire to ensure that the plaintiff doesn't receive any money from the deceased's estate; do you agree or disagree with that? A. I disagree."

Mr Edwards, the person said to have been present at the time of this incident was not called by the Defendant to corroborate the version of the events said to have taken place or to contradict Belinda's version of those events. No explanation was provided for not calling him. Amanda admitted that he could have been called.

What use may be made of the unexplained failure by the Defendant to lead such evidence? I cannot do better than repeat what was recently said in Goddard Elliott (a firm) v Fritsch [2012] VSC 87, per Bell J at [45] - [46]: "45.The general principle which is stated in Blatch v Archer is that 'all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted'. It was held by Newton and Norris JJ in O'Donnell v Reichard (which was followed by Buchanan, Eames and Nettle JJA in Ronchi) that, in so weighing the evidence, the unexplained failure of the party to call the evidence may be taken into account against that party for two purposes: (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken. 46The unexplained failure of the party to call the witness cannot be used to reason that the evidence of the witness would not have been favourable to the party. The trier of fact cannot allow the inference which may (not must) be drawn to be elevated that high. It is limited to the inference that, if called, the evidence would not have assisted the case of the party failing to call the witness. As was held in Weissensteiner v The Queen, that inference is available when evaluating all of the evidence which is before the court, including the evidence given by witnesses whose credibility and reliability has been attacked. As applied in the case of evidence of that kind, Mason CJ, Deane and Dawson JJ held this to be the principle: Doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might have been expected to give or call it."

It was within the power of the Defendant to call Mr Edwards as a witness in relation to an important issue of fact in the case, namely what occurred at Amanda's home. It was reasonably to be expected that he would call Mr Edwards to give evidence to corroborate what Amanda had said and to dispute what Belinda said. For reasons that were not explained, the Defendant failed to do so.

That unexplained failure gives rise to an inference that his evidence would not have assisted the Defendant's case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. That inference may be taken into account against the Defendant in evaluating the whole of the evidence in the case on the relevant incident. By reason of the failure to call Mr Edwards, the court might more readily resolve any questions about the reliability of Belinda's evidence. Of course, the principle does not compel the drawing of such an inference: Galea v Bagtrans Pty Ltd [2010] NSWCA 350, at [2]; CSG Limited v Fuji Xerox Australia Pty Ltd [2011] NSWCA 335, at [82].

I also asked Amanda some questions on this topic: "Q. ... You have mentioned two conversations, it would appear, with your father about allegations which Belinda has made? A. Yes. Q. Were they the only conversations that you had with him about the allegations? A. No. Q. There were others, were there? A. Yep. Q. And when were they? A. I think I come home in 2005 and a friend of his was accused of ...a similar thing and we had spoke about it then a couple of times. Q. And what did your father say about it then? A. Well, he's I just asked what was going on with his court case. Q. His friend's court case? A. His friend's court case. Q. Yes? A. And he just said, "The truth will come out". Q. What did that have to do with allegations made by the plaintiff? A. Well, we were just talking about, like, if you got nothing to worry about then, you know, the truth will come out in the end. Q. Yes? A. I had asked my father repeatedly. Q. I am sorry? A. I said I had asked my father repeatedly, about Belinda's allegations, and he denied it every time. Q. When did you start asking him about these repeatedly, about the allegations repeatedly? A. Like when his friend's court case was going on. Q. That was in 2005? A. Yeah, I think so. Or it was a bit before then. Q. Did you ask him about the allegations about his friend or the allegations that the plaintiff was making? A. Well, just saying we were just in conversation of like the court case, you know, how it come about, like when dad had said to her, "Let's go and sort this out, let's go and do it". Q. But I thought that was in 2009? A. Yeah, but I mean like down at the like when we had the cement works and we were talking about it, like, and we had said dad had always said, "If she wants to go and, you know, do something about it, why not do it", which is why I always believed it was a lie. Q. Anything else? A. I don't know. It was a long time ago."

I have considered the submission made on behalf of the Defendant that Belinda did not call any of the persons who she had said "knew" of the deceased's sexual relationship with her. However, as I do not know the source of the knowledge attributed to each of those persons, this seems to me to be less important than the failure to call Mr Edwards who was said to be present when Belinda acknowledged that her allegations were false.

Allegations of the kind that have been made are difficult to test whenever made and, particularly when the party against whom they are made is deceased. I must bear in mind the need for careful scrutiny to which evidence in such a case should be subjected in such circumstances (Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544, per Isaacs J at 548-9), and whilst there is no absolute legal requirement for it, I should look for some corroboration (Re Hodgson (1886) 31 Ch D 177; Day v Couch [2000] NSWSC 230; Weeks v Hrubala [2008] NSWSC 162, [20] (Young CJ in Eq)).

I also remember s 140 of the Evidence Act 1995 which sets out the standard of proof to be applied, together with a non-exhaustive list of "matters" to be taken into account: "(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged."

I also bear in mind what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 by Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171: "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct6 and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."

And at 172: "When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities."

I also remember what was recently said by Emmett J in Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123: "48... When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2)."

The conventional perception is that, generally, members of our society do not ordinarily engage in fraudulent or criminal conduct, of the type alleged, which is of particular significance in this case as the deceased, is now unable to answer the serious allegations against him: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, per Ipp JA (with whom Tobias and Basten JJA agreed) at [55] - [56].

However, as in that case, there are matters that weigh against the conventional perception. I shall deal with those next. Most importantly, having observed Belinda in the witness box, I found her to be a forthright witness who did her best to answer what was asked of her honestly. I found her evidence, generally, to be spontaneous and I found her to be without guile.

By way of example, she gave the following evidence regarding her future use of drugs: "Q. ... You see, what I'm trying to find out is this: that if his Honour gives you some provision, you will not go to your psychological A. No, that I will do. Q. You will do that, will you? A. Yes. Q. And you won't spend it on drugs? A. I can't promise that. Q. No, you can't promise that, can you? A. Actually, I have promised my daughter that and I have promised my children that I will buy a house and I will buy everything they need. That's it. Q. But the point is this, that if you had that money ... A. I don't pay money for drugs. I don't pay money for drugs. Q. Now, over at page 12, this is what you told you said you promised your children A. That I will buy a house and I will do the right thing. Q. Do you know whether either of your children would be prepared to look after your money? A. Yes. I want them to. I want them to. I don't want to walk out of this court unless they are looking after it. I trust them all, my children, explicitly."

By way of another example, I found that she did not attempt in any way to deny her criminal history, or the fact that she had spent different periods of time, totalling about 7 years, incarcerated. (In fact, she volunteered that a greater amount of time had been spent in jail than she had stated in her affidavit.) She also acknowledged, without hesitation, that one of her offences was a fraud offence (although the precise nature of that offence was not disclosed).

She also admitted, during cross-examination, that she could not remember the date of the occasions when she had sexual relations with the deceased. Her poignant answer to the cross-examination had every semblance of truth: "A. I didn't realise I should have wrote the times and dates down when it happened, it just happened, I don't remember the times and the dates."

I was reminded that Belinda did not make any allegation about the sexual relationship with the deceased in her first affidavit. However, she said, and I accept, that she simply answered questions asked of her. She thought she completed information in the affidavit "on line". The first affidavit does appear to be in the form of a precedent form of affidavit commonly used in these matters.

The Defendant submitted that there was no evidence that Belinda had raised, by way of mitigation, in one, or more of her criminal trials, the events involving the deceased. That is true. However, there is no evidence that she did not. I simply do not know one way or another and it is mere speculation that she did not do so.

Assuming that she did not do so, this is hardly surprising bearing in mind her relationship with the deceased. Furthermore, there is no evidence that the events involving the deceased and their connection to her medical condition was diagnosed before September 2010.

Furthermore, there is no evidence that her criminal behaviour was as a result of the deceased's conduct towards her.

In reaching my view in regard to the acceptance of her evidence about the deceased's conduct, I have also taken the following matters into account: (a)Whilst there is no direct corroboration of Belinda's allegations, it is unlikely that either she, or the deceased, would have made the nature of their relationship known. It is unsurprising that the deceased denied to Amanda any abuse of Belinda as a child, and that he did not admit that he continued to have a sexual relationship with her after she reached the age of 16 years. (b)According to Amanda's evidence, the deceased mentioned an allegation made by Belinda about his conduct as early as 1991, and, apparently, at different times thereafter. She, too, discussed the allegations with the deceased after 1991. Although the reason for raising the allegation (to obtain money) was denied by Belinda, this is not a case where the conduct of the deceased was raised, for the first time, with third parties, after the death of the deceased. (c)Belinda denied, in cross-examination, having sent any letter to the deceased. The first mention of a letter was in the cross-examination of Belinda (when it was put to her) and then in Amanda's oral evidence. It had not been mentioned in any of the affidavits relied upon by the Defendant in the proceedings. (d)The deceased did not show Amanda the letter from Belinda to which he referred in his conversation with her in 1991. Nor, apparently, did he show the letter to anyone else. Bearing in mind what was said to be contained in the letter, namely, that she was going to go public and accuse him of molesting her when she was a child, this is an omission which undermines the deceased's only explanation of Belinda's motive for making the allegations at that time. (e)That the deceased did not retain the letter, or provide it, or a copy of it, to his solicitor, is also an unexplained omission and one that casts doubt on the existence of such a letter. One might have thought that, even if it were not provided to the solicitor, the deceased would have shown it to him before, or at the time, the deceased made a Will in which Belinda was omitted as a beneficiary. (f)The evidence of the psychologist, that has not been challenged, reveals that Belinda's problems "developed in childhood in response to severe attachment problems with her parents and in response to being groomed to become her father's sexual object". This is consistent with the Belinda's evidence of the relationship with the deceased. (There was no dispute that the "father" referred to in this report, was a reference to the deceased.) (g)Neither the Defendant, nor Danielle, says anything in response to any of Belinda's allegations. The Defendant does not state that he was unaware of any such allegations being made during the deceased's lifetime. (h)It is not alleged that after 1991, the deceased refused to have anything to do with Belinda, or that, thereafter, they were estranged from each other. A continuing relationship is inconsistent with such a serious allegation being made if it were false. (For example, in the contemporaneous notes of the psychologist, there is a reference to Belinda working as a prostitute in Port Macquarie and the deceased attending there and telling her to return to work in Coffs Harbour.) (i)To a lesser extent, but still relevantly, Amanda's evidence of the breakdown of her relationship with Belinda, does not specifically identify the serious allegations being made against the deceased, which she believed to be false, as a cause for that breakdown. That evidence was as follows: "...I agree that we did get on quite well until I got sick of the drugs, stealing, constant trouble from the people Belinda associated with being drug addicts and drug dealers. I was fed up with Belinda lying and deceiving me and also stealing from me. The relationship between me and Belinda broke down well before my father died and as stated was due to the drugs, lies and deceiving conduct and together with the people she was associating with involving drugs. I could no longer trust her or be around her and especially did not want her to be around my children." (I do not accept the submission, made on behalf of the Defendant, that the reference to "Belinda lying" is a reference to the false allegation made against the deceased and that it was a cause of the breakdown of their relationship. The whole tenor of the paragraph has nothing to do with Belinda's allegation against the deceased. One would think that if that allegation had, it would have been specifically identified as a cause of the breakdown.) (j)Amanda gave evidence that she lived outside the Kempsey area for a period of time during the last decade of the deceased's life. She lived in Kyogle for about three years from 2000. She lived in Queensland from 2003 to 2005 and that there may well have been contact between Belinda and the deceased at the very least during those periods that she was not aware of. She also accepted the general proposition that "over the years ... there have been many occasions when your father has been with Belinda and you haven't been present".

My acceptance of Belinda's evidence does not mean that I do not accept that Amanda had a conversation with the deceased in 1991 as she asserted. It does mean that I do not accept the truth of the deceased's denial stated in that conversation. It also means that I prefer Belinda's version of the events on the verandah and her denial that she admitted to the deceased, in Amanda's presence, that her allegations about his conduct were false.

Ultimately, I am satisfied that, from time to time, the relationship between Belinda and the deceased found sexual expression. Ordinary standards of morality and social behaviour, in my view, required that, having received Belinda as a member of his household, and, apparently, having accepted the quasi-parental obligations that arose, the deceased ought not to have engaged in the conduct of the type complained of by Belinda.

I have taken the following from two reports from Cheryl J McCombie of McCombie Associates, Psychologists, the first of which is dated 10 September 2010 and the second of which is dated 1 March 2012. The first report was addressed to the Acting Director of Victims Services, and seems to have been prepared as a result of Belinda's application for victim's compensation. The second report was prepared for Belinda's current solicitors. It is clear that in the second report, the incorrect reference to Belinda's "father" is a reference to the deceased as that is how she referred to him.

In her first report, Ms McCombie states: "... Ms Curran reported that she is suffering from the following physical problems: headaches; muscle tension in her neck and shoulders; migraine headaches since she was a child; bruxism; nervousness; nausea; weight loss and a dry mouth. Anxiety and Post Trauma Symptoms: sleeping difficulties - often has dreams and nightmares and still uses serepax when she can't sleep; flashbacks especially when she smells diesel (dad owned a fuel depot and drove trucks); vigilant; avoids confrontation, and going into town; circulation ruminations about Dad; generalised anxiety; panic; interpersonal sensitivity; relationship strains; threat sensitivity inability to relax; obsessive about her large handbag - "you never know where you may be left without support every thing I need is in my handbag"; intrusive thoughts and anxiety with symbolic re-exposure. Depression Symptoms: Depressed mood; feelings of guilt - feels she failed as a daughter; loss of enjoyment; loss of self-esteem and self confidence; feelings of worthlessness; mood disturbance with anger outbursts; feelings of pessimism; social withdrawal feels overwhelmed and powerless; mood disturbance with irritability and loss of tolerance; and fatigue and exhaustion. Cognitive Problems: Difficulty concentrating; short-term memory problems; difficulty making decisions and solving problems. Substance Abuse: Alcohol and nicotine consumption. Ms Curran's presentation, history and self-report were consistent with the mental disorders using DSM 4 criteria: Post Traumatic Stress Disorder - Chronic - Moderate to Severe and Major Depressive Disorder - Chronic - Moderate to Severe."

In her second report, Ms McCombie states: "... 3)What is her ability to repair the damage to her psychological health if at all? Ms Curran suffers from chronic invasive emotional problems. Her problems developed in childhood in response to severe attachment problems with her parents and in response to being groomed to become her father's sexual object. She has a history of further life failures and traumas based in this history, which has severely exacerbated these original problems. It is now well understood that such child histories produce a change in brain function and structure that is not amenable to any therapy and does not have the potential for a cure. The experience of chronic emotional problems since, has cemented these cognitive and emotional difficulties. The best that can be hoped for is that Ms Curran becomes able to manage the most obvious symptoms of her emotional problems. 4)What further treatment is required and the cost of this further treatment? Ms Curran will need on going psychological and psychiatric input for the remainder of her life. This will be more supportive and training in nature, given that her emotional problems and the fact that their effect upon her cannot be resolved. I think that she would benefit from 10 sessions per year to maintain this support and intervention programme with her. The hourly fee recommended by the Australian Psychological Society for therapy is presently $208. 4)Prognosis? As indicated above, Ms Curran has no potential for a cure of her emotional problems. She will remain as she is, with some amelioration of her most self-destructive behaviours with therapy, for the foreseeable future. Ms Curran is aware of her limited skills and abilities - both cognitive and emotional and is very worried about how she will survive if she inherits any money. She recognises that she will need some form of guardianship to assist her to purchase a house and to manage her finances to ensure that she remains self-supporting in the future. I think that this is the optimum outcome for her."

In view of the fact that Ms McCombie was not cross-examined, despite an opportunity being given to do so, I accept the conclusions stated in these reports.

I am satisfied that the current financial and material circumstances of Belinda may be summarised as follows: (a)She is unemployed and her sole source of income is a Centrelink pension of $689 per fortnight. Her outgoings consume her pension and at times, amount to more than her pension by about $50 per fortnight. (b)Her assets include her clothes and personal items ($250); a mobile telephone ($25) and money in bank ($5). An application for victim's compensation (based upon matters to which I shall return later in these reasons) was made on her behalf in April 2010, but, at the date of hearing, has not been dealt with. There is no evidence of what she might expect to receive if her application is successful, although her application asserts that she is a "Category 3 sexual assault victim". The range of compensation for such a victim is between $25,000 and $50,000. (c)Her liabilities include a debt to Centrelink ($400) and loans from friends and family (totalling approximately $ 5,250). She refers to the amount that she owes her legal representatives for conducting these proceedings.

Until September 2010, Belinda was living in the homestead situated on the deceased's property at Fairweather Lane, Kinchela. Since the fire destroyed that homestead and all her belongings, she has been virtually homeless. She stays in the Coffs Harbour area in the home of friends or in casual accommodation on a nightly basis.

Belinda's future employment prospects are limited due to her lack of qualifications and psychological problems. Her major source of income has been as a sex industry worker. She has stated that she no longer wishes to be engaged in that occupation.

I have earlier referred to her evidence about the possibility of continued drug use. This is a matter that I shall take into account in the form of the orders that is to be made.

It is necessary to see how Belinda asserts that she has been left without adequate and proper provision for her maintenance, education and advancement in life. In summary, her claim is for a lump sum sufficient to pay for the following: (a)Accommodation - a three bedroom house with modern conveniences and utilities ($300,000 - $400,000); or alternatively, a modest two bedroom home unit with modern conveniences and utilities ($250,000 - $350,000); costs and expenses of purchase amount to about $12,740 (although Belinda may be entitled to a first home owner's grant of $7,000 refund of stamp duty). (b)Furniture and appliances ($22,500); (c)A car ($23,000, including on road costs); (d)Dentistry work to fully reconstruct upper and lower teeth with implanted dentures ($15,000); (e)Medical treatment, including future psychological treatment estimated to be 10 sessions per year at $208 per session (for 41.3 years)($85,000); (f)A capital sum (said to be $690,000 based upon 3% tables) which would provide an income of about $550 per week.

The Plaintiff's counsel submitted that, in total, the amount required by way of provision would be about $1.1 million.

Needless to say, the Defendant disputed any entitlement to such a large lump sum by way of legacy.

Because the Plaintiff is, and has been, receiving a disability pension for some years, it is necessary to briefly consider the relevance of that receipt in a claim for a family provision order.

In Taylor v Farrugia [2009] NSWSC 801 at [59], Brereton J said: "The Court's attitude to the eligibility for means tested pension benefits of eligible persons and beneficiaries varies, depending on the circumstances of the case. Ordinarily, a testator makes a will and provides for those who have a claim on the testator without regard to the claimant's eligibility for a pension. However, in a small estate where there are competing claims, a testator, and this Court on an application under the Act, may take into account the eligibility of a claimant for a pension as a means of deciding how such limited benefits as are available from the estate should be shared between claimants, and how those benefits might be structured. But this qualification to the principle that the burden of support should be borne in the first instance by an estate rather than by social security arises mainly, if not exclusively in smaller estates [Parker v Public Trustee (1988) NSWSC, Young J, 31 May 1998; Whitmont v Lloyd (New South Wales Supreme Court, 31 July 1995, Bryson J, unreported); King v Foster (Court of Appeal, 7 December 1995, unreported) King v White [1992] 2 VR 417, 424; Shah v Perpetual Trustee Company [1981] 7 Fam LR 97 100; Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; Chan v Tsui [2005] NSWSC 82]."

An earlier authority, with which I respectfully agree, is Thom v The Public Trustee (NSWSC, 2 April, 1992, unreported), in which Master McLaughlin (as his Honour then was) said: "It seems to me that it would be totally unrealistic for the Court to approach the moral obligation of the deceased to make provision for ... by disregarding the fact that for a period of 20 years before the deceased's death, ... was in receipt of a pension from the State, and the fact that, to the extent of that pension, the deceased was relieved of the necessity to support... from his own funds. That being so, I do not see how, upon the death of the deceased, the moral obligation upon the deceased to make provision for ... by will, could be approached without recognising the fact that ... would be entitled to continue to receive such a pension."

The availability of a disability pension to Belinda ought not be regarded as a substitute for the obligation on the deceased to make adequate provision for her. Yet, it is not necessary to make an order that would operate primarily in relief of the taxpayer.

In my view, it not being submitted to the contrary, the availability of the disability pension, and associated social benefits, is a circumstance to which the Court should have regard particularly in circumstances where Belinda continues to be unwell and the prognosis is that she will continue to require psychological treatment. As was stated in Evans v Levy at [55]: "... there are, for most pensioners, side benefits of considerable value in merely having a part pension, such as the right which becomes more and more valuable as one gets older to have medical services provided at considerable concessional rates."

In Foley v Ellis, Sackville AJA at [88] noted that Singer v Berghouse (No 2) "... strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act ".

It is, therefore, necessary to consider the circumstances of Amanda, Danielle and the other beneficiaries named in the Will, including her and his financial and material circumstances. I am satisfied that the following facts are not in dispute or have been established by the evidence.

Amanda had a reasonably close relationship with the deceased throughout her life. She was not cross-examined to suggest otherwise. She is the principal beneficiary (in terms of value of the provision) named in the Will of the deceased.

I shall take her financial and material circumstances from her most recent affidavit: "4.I am now receiving approximately $517 per fortnight from Centrelink. From this amount Centrelink take $70 from me to repay a Centrelink debt of approximately $40,000. Also the amount of $47 per fortnight is taken out again by Centrelink in payment of Child Maintenance to my ex husband Dwayne for our child Latesha. After such payments are taken out by Centrelink together with any deduction Centrelink makes due to me working at the Hat Head Post Office I only receive approximately $317 per fortnight in Centrelink benefits. 5.From the money I receive from my Centrelink benefits and my employment at the Hat Head Post Office I use all payments received for general living expenses and looking after my children Darcy, Kirstyn, Jarryd and Alex who is a friend of Jarrad (sic) who now lives with our family. All money that I receive goes to pay for groceries, car expenses, school expenses and medical expenses for myself and my children. 6.In relation to medical expenses for my son Darcy I have been informed by his dentist that Darcy needs extensive dental work including teeth removed and braces. The dentist has informed me that this cost could be $10,000. Darcy is also seeing a specialist orthopaedic surgeon and requires "insteps" for his shoes due to Darcy's feet. I have been informed that this could cost approximately $1,000. 7.At the end of each fortnight I usually have no money left over from payments received from Centrelink and my employment with the Hat Head Post Office. 8.In relation to Paragraph 47 of my August 2011 Affidavit I was unable to complete the purchase of the land in Victoria and I have forfeited my deposit of $9,800. 9.In relation to Paragraph 49 of my August 2011 Affidavit I no longer own a caravan. I sold the caravan in or about September 2011 for approximately $4,500. I used the proceeds of the sale of the caravan to pay bills for living expenses. I still have the Camry but it would only be worth approximately $1,000 as it is a 1986 model. I do not own a house or have any savings, investments, property or any other assets other than as stated above. 10.In relation to liabilities, I owe the following: (i)Centrelink debt of approximately $40,000 (ii)My legal fees for this matter will be approximately $46,000."

It is clear from her oral evidence that Amanda retains furniture, which is of some value, and is owed $6,000 or $7,000 by her daughter-in-law, which was not referred to as an asset.

I was unimpressed with Amanda's evidence about how she had spent the money that she has already received from the deceased's estate. Whilst she was able to identify how about $85,000 had been spent, as to the balance, her evidence amounted to "we just lived extremely well."

I was also unimpressed with the part of her affidavit that related to the circumstances surrounding the failure to complete the purchase of the land in Victoria. It is clear that her failure to do so, and the subsequent loss of her share of the deposit, despite her evidence to the contrary, did not have anything to do with Belinda bringing these proceedings.

Danielle was not cross-examined on her affidavits. I am satisfied that Danielle had a close relationship with the deceased throughout her life. She, too, is the major beneficiary named in the Will of the deceased.

I shall take her financial and material circumstances from her most recent affidavit: "5.I continue to have the care of my four children namely, Rachel Louise Pidcock born 18 September 2001, Joel Donald Berry born 15 August 2003, Jeremy Leslie Berry born 25 August 2010 and Daniel Orlando Berry born 11 August 2011. 6.Whilst I receive some parental assistance from Peter Berry, the father of Joel, Jeremy and Daniel I am principally the homemaker and parent for all of my children. 7.I have not returned to work after the birth of my son, Daniel. I continue to receive a carers pension for my son, Joel. The carers pension is approximately $114 per fortnight together with a maternity allowance of $354 per fortnight. 8.Peter Berry, the father of Joel, Jeremy and Daniel, provides financial assistance in the sum of approximately $400 - $450 per week. 9.I eventually hope to be able to return to my employment with Coles Supermarkets as a service assistant. I receive approximately $475 net when I am working at Coles Supermarkets for a full weeks work. 10.I am uncertain as to when I will be able to return to work because I have the care of four children and in particular given that Daniel is only some seven months of age and further because of Joel's disabilities."

Danielle acknowledges receipt of funds in excess of $320,000. Her evidence explains the use of about $200,000 but does not explain how she has spent the rest.

Mr Ball did not swear any affidavit that was read in the proceedings. I know nothing about his financial and material circumstances.

Joshua was born in September 1988 and is currently 23 years old. He lives in Kempsey with his partner and children. He was incarcerated in November 2009 for 14 months. Amanda supported Joshua's partner and his children whilst he was in jail. She also deposited money into his jail account.

He did not swear an affidavit setting out his present financial and material circumstances.

Jarryd was born in June 1993 and is currently 18 years old. He lives with his father and grandparents. He works in his grandparents' trucking business.

He did not swear an affidavit setting out his present financial and material circumstances.

Latesha was born in September 1995 and is 16 years old. She lives with her father. She did not swear an affidavit setting out her present financial and material circumstances. There is no other evidence about those circumstances.

Darcy was born in March 2002 and is 10 years old. He lives with Amanda and his father in a shared custody arrangement. Darcy suffers from Asperger disorder. He has trouble controlling his emotions and has difficulties with schooling. He also suffers from asthma. He needs more daily care and extra attention in relation to his development.

Kirstyn was born in May 2004 and is 7 years old. She lives with Amanda and her father in a shared custody arrangement.

Rachel was born in September 2001 and is 10 years old. Danielle and Rachel's father separated when Rachel was about 15 months old. He is now deceased.

Joel was born in August 2003 and is 8 years old. When he started school he was diagnosed as suffering from Autistic Broad Spectrum Syndrome and Tourette Syndrome. He requires constant supervision and regular medical checks.

Jeremy is 18 months old.

I have had the benefit of receiving a written outline of submissions from counsel for the respective parties. Those documents will be retained in the Court file. I was also provided with an agreed statement regarding the pension and the first home buyers grant, which shall also remain in the court file.

As stated previously, there is no dispute that Belinda is an eligible person. There is also no dispute that the proceedings were commenced within the time prescribed by the Act.

Next I must consider whether there are factors which warrant the making of the application. In my view there are several factors, namely: (a)the length of the relationship between Belinda and the deceased, which relationship continued to subsist after the termination of the relationship between the deceased and Elaine which created it; the deceased appears to have been the only "father" that Belinda knew; (b)the nature of the relationship from Belinda's point of view, which, as I have found, was a personal one, and one that involved an emotional bond; that she referred to him as "Dad", to which he did not object, demonstrates the recognition by each of a familial bond; (c)the sexual relationship that existed; (d)the expectations that the deceased encouraged in Belinda in relation to the house and yard situated on the Fairweather Lane Kinchela parcel of real estate.

(One factor warranting that is lacking in this case is any suggestion that the origin of the property comprising the deceased's estate derived from Belinda's mother. This is a relevant matter, however, in determining the nature of the provision that ought to be made.)

Accordingly, the requirements of s 9(1) of the Act have been satisfied.

Then, I must consider, whether, at the present time, adequate provision for the proper maintenance, education, or advancement in life, of the Plaintiff has not been made, during the lifetime of the deceased or by his Will.

No provision was made for Belinda in the deceased's Will. However, this does not, automatically, mean that she will have satisfied the jurisdictional threshold. However, looked at through the prism of her financial and material circumstances, it is clear that adequate provision for her proper maintenance and advancement in life was not made by the Will of the deceased. Accordingly, in my view, the jurisdictional threshold has been established.

It is, therefore, necessary to proceed with the second stage of the process of determining what provision should be made out of the deceased's estate to provide adequate provision for the proper maintenance and advancement in life. That is the more difficult question.

Counsel for the Plaintiff submitted that the wise and just deceased person, reflecting upon his past life, would consider what he had done to a young vulnerable person who had entered his life long before, and what were the consequences of his conduct towards her. That deceased would or, in accordance with accepted general community standards, should, feel a moral obligation to make substantial provision out of his reasonably large estate. There is some merit in this submission.

The Plaintiff seeks an amount that equates to about $1.1 million. However, that includes a sum calculated by provision of a capital sum that will provide about $550 per week by way of income for the rest of her life. I do not consider that a capital sum of that magnitude ought to be provided for her. In my view, bearing in mind the medical condition of Belinda, I consider, as relevant, that she has been in receipt of a disability pension for some time and it will be advantageous to her to continue to receive it.

She further seeks an amount of $23,000 for a car. However, she has been disqualified from driving until 2028, and whilst it may be that she could make application to have her period of disqualification reduced, at the date of hearing she does not, currently, have a need for a car.

At the hearing, both parties stated a wish to ensure that the provision (if any) for Belinda is protected from misuse. The point of difference appears to be whether she should, whilst she is being protected, obtain, in effect, an absolute interest in the provision made, or whether, as submitted on behalf of the Defendant, the provision, in whole or in part, should be limited for her life.

A special disability trust under Pt 3.18A of the Social Security Act 1991 (Cth) was briefly raised by counsel for the Plaintiff. On 20 September 2006, the Social Security Act was amended to include that Part, which is headed "Private Financial Provision for Certain People with Disabilities". It permits the creation of 'special disability trusts' to assist families and carers to make private financial provision for the current and future care and accommodation of family members who are severely disabled.

As defined in s 1209L of the Social Security Act 1991 (Cth), it is a trust that has the following requirements (subject to the proviso that Secretary may waive one or more requirements in certain circumstances): "(a) the beneficiary requirements (see section 1209M); (b) the trust purpose requirements (see section 1209N); (c) the trust deed requirements (see section 1209P); (d) the trustee requirements (see section 1209Q); (e) the trust property requirements (see section 1209R); (ea) the trust expenditure requirements, if any (see section 1209RA); (f) the reporting requirements (see section 1209S); (g) the audit requirements (see section 1209T)."

Although I have also been provided by the parties with a booklet relating to this type of trust, it seems to me that they should have an opportunity to consider this aspect further to determine whether the sections of the Act are applicable and whether such a trust, or some other form of trust, could be established for Belinda. (Reference was also made to Stern v Sekers at [344].)

In my view, provision should be made for Belinda to enable her to purchase accommodation. I consider that $310,000, should be sufficient to do so, including associated costs and disbursements of purchase. (In this regard, the parties have agreed that a first home buyer is entitled to a Government grant of $7,000; that if the home is a new home (i.e. a home that has not previously been lived in, or being built, or off the plan), stamp duty is not payable; and that the stamp duty on a home costing $300,000 is $9,000.)

How any real estate should be held, may be the subject of further submissions, although in saying that, I am not suggesting that Belinda's beneficial interest should be a limited one.

I am also of the view she should receive a capital sum of $250,000, which amount should provide capital and income to her. However, Belinda should only receive an amount of $50,000 (of that amount), within 28 days of these orders, to enable her to pay for furniture and whitegoods for the home that are required, and to pay any debts. Her solicitors, or other trustee, should retain that amount on behalf of the Plaintiff, pending the need to purchase the furniture and whitegoods and to pay her debts.

A further $50,000 (of that amount), together with interest accrued on that amount, should be paid to her at the end of each 12 month period that Belinda remains out of prison. It follows that if she is able to stay out of prison for 4 consecutive 12-month periods, she will have received the beneficial interest in the balance of the capital sum.

If she is incarcerated, the 12 month period before she will be entitled to the beneficial interest in the amount of $50,000, together with the interest accrued thereon, will commence to run on the day of her release from prison.

I appreciate that the order I am proposing is an unusual one and the precise form will require some further consideration by the parties' legal representatives. However, it is not without precedent. As will be appreciated, what I have proposed is based on the type of order made by Young J (as his Honour then was) in Hoadley v Hoadley (Supreme Court of New South Wales, 17 February 1987, unreported).

In this way, also, Belinda's pension should not be reduced, because she is unlikely to have the beneficial interest in assets (excluding her home) in excess of $186,750. Furthermore, the income that each amount of $50,000 should attract (using the current rate paid by the NSW Trustee and Guardian is 6.25% per annum) will not exceed the permissible income ($150 per fortnight).

A separate fund of $85,000 (in addition to the $250,000), to be used for paying for counselling sessions should also be made available for Belinda's use. That is the only amount in which Belinda should not be regarded as having an absolute interest (albeit subject to the conditions previously stated). If the amount, or any part of it, is not utilised within 5 years, or such other time as the Court determines at that time, it should be repaid to the estate to be divided in the percentages referred to below.

I will hear submissions from Counsel as to the appropriate form of orders, if agreement is unable to be reached, to implement my findings and how the orders should be framed in order to constitute any trust, or an appropriate part of any trust, for Belinda's benefit and the terms of that trust.

Counsel for the Defendant submitted that the provision, if any, ordered for Belinda should be borne rateably by Mr Ball, Amanda and Danielle, leaving untouched, the legacy to be shared by the grandchildren of the deceased. However, he stated that whilst Amanda and Danielle (who were represented by solicitors) agreed with that submission, Mr Ball (who was present at the hearing) did not, and that he wished his share of the deceased's estate to remain untouched in the event that the Plaintiff obtained provision out of the estate.

No party, Amanda, Debbie, or Mr Ball, suggested that the burden of any provision made for Belinda should be borne, in part, by Debbie, who has received a lump sum of $300,000 inclusive of her costs.

For the benefit of the parties, at the hearing, I stated the method by which I would calculate the beneficial entitlements that should bear the burden of any provision and, in relation to each of those entitlements, the part of the burden that it should bear. I gave them the opportunity to check my calculations and, subsequently, I was informed that the following percentages could be applied. (I did not take their agreement to mean that the earlier submission should not be considered by me.)

I have used the denominator of $3,508,756. This is calculated taking into account the estimates of the different beneficiaries or class of beneficiaries, and includes amounts and the value of property already received (to which reference has been made earlier and with which the parties agreed).

It follows, on my calculations, and the parties' agreement (on the mathematics) that the part of the burden Amanda should bear is 43.6%; the part of the burden Danielle should bear is 36.7%; the part of the burden Mr Ball should bear is 10.4%; and the part of the burden the grandchildren should bear is 9.3%. In the event that Amanda and Danielle wish to leave untouched the share of the grandchildren, the burden of each will be increased by 4.65%.)

I have come to the conclusion that the provision made for Belinda should be borne rateably by all the beneficiaries, treating the grandchildren as a class. In this regard, whilst they, and Mr Ball, are chosen objects of the deceased's testamentary bounty, only Amanda and Danielle is an eligible person within the meaning of the Act.

I was also asked not to make any orders as to costs. In the circumstances, if the parties are unable to agree, I shall also hear any submissions as to costs at a time suitable to counsel and to the court.

The parties are to bring in short minutes that reflect the reasons and any agreement as to costs reached by them. I shall stand the proceedings over to a suitable date to deal with any issues that have not been resolved between them.