Bradley v Irvine; Irvine v Irvine

For ease of understanding and intending no informality nor disrespect, I will refer to the main players in these reasons using their given names.

Maxwell Charles James Irvine (the Deceased) passed away on 3 May 2021.

At the time of his death he was in a de facto relationship with Dawn Irvine (Dawn). They had been a couple for approximately 35 years.

Dawn has three children by a previous marriage – Cynthia Bradley (Cynthia), Karen Bradley (Karen) and Glennis Bradley (Glennis).

In proceedings 2021/314246 (the Bradley Proceedings) each of Cynthia, Karen and Glennis seek an order pursuant to s 59 of the Succession Act 2006 (NSW) (the Act) that provision be made for each’s maintenance, education and advancement in life out of the Deceased’s estate.

In proceedings 2022/36803 (the Irvine Proceedings) Dawn seeks an order pursuant to s 59 of the Act that further provision be made for her maintenance, education and advancement in life out of the Deceased’s estate.

The defendant in each of the proceedings is Michael James Irvine (Michael), the Deceased’s eldest son from an earlier marriage and the executor of his estate.

Both proceedings were heard together before me on 21 to 24 and 27 to 28 May 2024 with evidence in one proceedings, evidence in the other. Mr K Morrissey appeared for Cynthia, Karen and Glennis, Ms L Clarke appeared for Dawn and Mr B Goodyear appeared for Michael in both matters.

Oral evidence was given by each of Cynthia, Karen, Glennis, Dawn, Michael, Peter and a psychologist, Mr Sam Albassit. Save for the critical issue of whether the abuse allegations are false, and evidence in relation to the alleged needs of Cynthia, Karen and Glennis, no serious credit issues arose.

For the reasons set out below, the claims of Cynthia, Karen and Glennis should be dismissed. An order for further provision in favour of Dawn should be made in a form to be agreed between the parties to give effect to these reasons. As requested, I will hear the parties on costs.

A number of the relevant background facts were not seriously in dispute. They may be summarised as follows. I deal separately below with the relevant circumstances of each of Dawn, Cynthia, Karen and Glennis as well as a central core issue, namely what findings I make in relation to the sexual abuse allegations.

The Deceased married Helen Bradley (Helen) in 1972. They had two children – Michael and Peter Charles Irvine (Peter).

In February 1976, Dawn married Warren George Bradley (Warren). Warren and Helen are brother and sister. They had three children – Cynthia born 14 October 1978, Karen born 29 March 1980 and Glennis born 9 August 1981. Cynthia, Karen and Glennis were thus the Deceased’s nieces.

In 1983, Dawn and Warren separated.

The Deceased and Helen separated some time in about 1985.

In 1985/1986 or thereabouts, Dawn started a relationship with the Deceased.

The Deceased was a son of the late Verdun John Irvine (Verdun) who owned a property “Lowery” at Toogong, which is in the Central West region of New South Wales, about 300 km west of the Sydney CBD (Lowery).

The Deceased owned a property at Barrack Street, Toogong (the Toogong Property) which he purchased from his parents in about 1970. In about 1988, Dawn moved into the Toogong Property to live with the Deceased.

Joining Dawn and the Deceased at the Toogong Property were the children of each prior marriage, being:

Not all five children stayed together at the Toogong Property every single night, as each set of children continued to have contact with their other biological parent.

At or about the time Dawn moved in with the Deceased, the Deceased, together with his mother, took over the running of Lowery. After Verdun’s death in 1992, there were family provision proceedings commenced, as a result of which a subdivision of Lowery was affected. The Deceased and his mother were granted a life interest in respect of the southern portion of Lowery and both continued to operate a farming business in that portion of Lowery. The Deceased otherwise operated a transport business.

In 1997, Cynthia and Karen left home, and ceased contact with the Deceased and Dawn. Consistent with the decision of Kunc J in Rada v Smith [2024] NSWSC 273 at [28], I have eschewed use of the term “estrangement” in these reasons.

Michael and Peter moved in permanently to the Toogong Property in about 1997 and each commenced working in the family farming and transport business.

In 1997 Glennis left home temporarily. In 1998, Glennis left home for good, and ceased contact with the Deceased and Dawn.

Each of Cynthia, Karen and Glennis contend that they left home as a result of sexual and other abuse suffered at the hands of the Deceased. Those allegations were denied by the Deceased during his lifetime and those allegations continue to be denied by Dawn, Michael and Peter in these proceedings.

In 2001, the Deceased was charged and tried on various counts arising out of allegations made by Cynthia, Karen and Glennis. A jury acquitted him on all counts.

In 2011, Peter stopped working in the family trucking business in order to work in the mines.

From about 2015 onwards, both the farming and trucking businesses were brought into the one business – the Toogong Partnership – the partners of which continued to be the Deceased, Dawn and Michael.

Dawn resigned from the Toogong Partnership in July 2020. The Deceased resigned in March 2021, leaving only Michael running the business. An expert retained by both parties valued the business as at March 2021 at $1,202,868. The Deceased’s 50% interest, which was, in effect gifted to Michael at this time, is valued at approximately $600,000.

On 3 May 2021, the Deceased passed away, leaving a will dated 12 April 2021 (Will). Dawn and Michael were appointed co-executors, but Dawn subsequently renounced her executorship, leaving Michael as sole executor. Probate was granted on 16 August 2021.

Clause 5 of the Will provided as follows:

Schedule 1 provided:

The Bradley Proceedings were commenced by summons filed by Cynthia on 5 November 2021. An amended summons, adding Karen and Glennis as plaintiffs, was filed on 8 November 2021. The Irvine Proceedings were commenced by Dawn on 8 February 2022.

At the time of his death, the Deceased’s assets comprised:

Net assets were estimated at $1,450,000.

In November 2022, the Toogong Property suffered severe flood damage that rendered it uninhabitable and destroyed its contents. Insurance proceeds have been received:

The parties prepared a schedule setting out their respective positions in relation to the value of the assets of the estate at the time of hearing. That schedule is annexed to these reasons. Dawn agreed with the position of Michael as to the value of the assets.

The schedule identifies several differences, the principal being the present market value of the Toogong Property. Given the view that I take as to the resolution of these cases, it is not necessary to resolve these differences.

Cynthia gave evidence of a somewhat unhappy childhood living with the Deceased.

Her parents, Warren and Dawn, separated in around 1983 when Cynthia was about was about 4 or 5 years old – Cynthia having been born on 14 October 1978. She moved with her mother and two sisters to a refuge in Bathurst. They then moved to a property “Maryville” in Toogong. Cynthia agreed that these drastic upheavals in her home life were somewhat unsettling.

In about 1984, the Deceased and Dawn commenced a relationship and at some stage, the Deceased moved to Maryville to join Dawn and her three children. Dawn disputes whether the Deceased actually moved in with them at Maryville but nothing turns on this. They were a de facto couple at the time. In about 1988, they all moved to the Toogong Property.

As set out above, living in the house at the time were the Deceased, Dawn, Cynthia, Karen, Glennis, and Michael and Peter on weekends, although each of the children were also spending time staying with their other biological parent.

Cynthia lived with the Deceased and Dawn at Toogong Property until she left in about early 1997 (returning briefly in about mid 1997 only to depart for good shortly thereafter). During this period the Deceased provided for her, including all food, clothing, schooling, accommodation etc.

Cynthia gave evidence in her affidavits of life with the Deceased. Having regard to the cross-examination of Cynthia, it was difficult to know whether some of the observations she made in her affidavits – save for the sexual abuse allegations – reflected feelings or observations of Cynthia at the time at which the events occurred, or are reflections that she now has in hindsight. Either way, the evidence paints a somewhat unhappy childhood with the Deceased.

Cynthia described the Deceased as a house dictator, punishing her by ignoring her, swearing at her, hitting her and giving her the worst household chores. She saw him as being unfair. There was no evidence from Cynthia that she had any particular love or affection for the Deceased, either at the time or in hindsight.

Cynthia said that from about 1988 until she left home in 1997, every weekend that she was not visiting Warren (which was approximately every second weekend) and school holidays (approximately half of which were spent with Warren) she was working with her sisters, mother and stepfather at Lowery, performing various physical tasks. The work on the farm was said to be physically hard and long, for which she was not paid. She apparently missed some school and many social activities to work at Lowery. She also performed some work in relation to the family cattle transport business and around the farm as well as at the Toogong Property.

Cynthia agreed that the work she carried out at the Toogong Property was not uncommon for a child to do and benefited everyone in the household. Whilst Cynthia agreed that not every weekend when she was not with Warren was spent at Lowery, she maintained it was most weekends.

Cynthia also contended that the Deceased also tried to stop her from seeing her own father as much as she would have liked. It appears, however, that there was still considerable contact between Cynthia and Warren.

Cynthia gave evidence of, what were described in the proceedings as, the abuse allegations. It is not necessary for the purposes of these reasons to describe the allegations to the extent described by Cynthia. For present purposes, the following is a high level summary of the alleged abuse:

Cynthia made these allegations to at least a school counsellor and DOCs in about early 1997 and subsequently to the NSW Police (on 13 March 1998). She also made an application for victims compensation and received $10,000 in November 2022. At the time that she made the application she did not know how long it would take to receive any money from the application.

In April 1997, when she was around 18 years of age, she left the Toogong Property and went to live with her grandparents. She said that this was because of the abuse she suffered at the hands of the Deceased. Glennis and Karen moved out with her as well, although, as set out below, Glennis moved back to the Toogong Property a little later in 1997.

Cynthia also moved back quite briefly to the Toogong Property in May 1997, but in July 1997 she moved to Forbes with her then boyfriend, Jason Beadon (Jason). She and Jason had a daughter, Dana, in 1998. They moved around quite a bit for work. Cynthia apparently dropped in for casual visits to the Toogong Property late in 1997 but thereafter had no contact with the Deceased or Dawn.

Cynthia admitted that she left home without any money and limited opportunities.

Cynthia gave evidence that Jason had a substance abuse problem and could not hold down a job for more than six months and as a result she decided to leave Jason. The substance was marijuana and Cynthia also admitted to being at least a casual user of the drug.

Cynthia had a series of short-term jobs after leaving high school but did not find full time employment until about 2003 when she was employed at Direct Shoe Warehouse.

In September 2009, she started dating Gareth Hunt (Gareth) and they married in 2014.

She currently lives with Gareth in rented accommodation in Canberra. She is presently employed at The Australian Centre for Moving Image (a museum at Federation Square in Melbourne) where she works four days a week, working from home. She describes her occupation as payroll specialist. She has a Certificate IV in Financial Services (Accounting) and a payroll management certificate.

Cynthia and Gareth put before the Court evidence as to their financial position at two points in time, first as at December 2021 and then May 2024. Gareth also swore an affidavit as to his financial position and was not cross-examined.

As at May 2024, their financial position may be summarised as follows:

Gareth is apparently not working much at present as a result of certain medical issues recently experienced. He apparently requires considerable assistance which has been provided by Cynthia. As a result, Cynthia has had to work reduced hours and Gareth gave unchallenged evidence that he is very concerned about his future health, lifestyle, employment and finances. It would appear, however, that Gareth has income protection insurance which would likely provide some sort of benefit if Gareth is not able to work for a considerable period.

Cynthia also recently “received” $72,510.60 out of Warren’s estate. Warren’s spouse filed a family provision claim which was settled out of court and considerably reduced the monies she was otherwise expecting to receive. These monies were placed into a controlled monies account with her solicitors in these proceedings and have been used to pay for her legal fees in these proceedings.

Cynthia gave evidence as to why she wanted an order for provision from the Deceased’s estate.

First, she said that she and Gareth were planning to buy their first property together. She agreed that the two hurdles to buying that property were saving up a deposit and being able to afford the mortgage payments. She sought provision for both. She gave evidence of wanting to buy a home in North Canberra and gave evidence of recent sales with an average sale price of $637,125, with a 10% deposit being $63,712.50. An order for provision in the amount of the deposit would save Cynthia and Gareth having to withdraw funds from superannuation. Monthly mortgage payments would be approximately $3,877 and a further provision would assist greatly with reducing the amount of the monthly mortgage payment.

In cross-examination, Cynthia agreed that the combined net monthly income of her and Gareth is $12,500, meaning the household has a monthly surplus of about $5,500 over the estimated expenses of $7,051.69. As such, she would be able to afford the estimated mortgage repayments out of current monthly household surplus, provided someone paid the deposit and any stamp duty.

Cynthia said that she and Gareth has been salary sacrificing into superannuation since 2021. If all the monthly household surplus had been saved since only the end of 2021, a sum of $161,000 should have been saved. Cynthia agreed that this amount had not been saved.

In terms of the need for a deposit, it was put to Cynthia that she should have used the inheritance from Warren’s estate to buy a house rather than use it to pay legal fees in these proceedings.

Cynthia expects that she and Gareth will both have to keep working at their current rates until they retire to fulfil their goals of owning a home and possibly being mortgage free. As was pointed out in cross-examination of Cynthia, she is only working four days a week and having to work until you retire is a fact of life.

Cynthia also gave evidence of various health concerns and increased car repairs. Most importantly of these concerned her mental health. She believes she is suffering from poor mental health as she often feels depressed and overwhelmed by her past.

On 7 May 2022, Cynthia recommenced therapeutic treatment with Ms Fiona Stevenson, psychotherapist to assist with her mental health every week and then fortnightly. On 18 December 2023, during a telephone consultation with Ms Stevenson, Cynthia was assessed as having suicidal thoughts and an ambulance was called and Cynthia was admitted to the adult mental health ward at Canberra Hospital.

Cynthia is now in the process of completing the Next Step program using a Cognitive Behaviour Therapy approach to prevent relapse.

Cynthia has also commenced seeing Ms Pippa Matthews, a trauma specialist. The cost of each session is $198 per session and Cynthia’s list of monthly expenditure suggests she is seeing or plans to see, Ms Matthews twice a month.

Cynthia has private health insurance, and most services to date have been provided by Medicare such that Cynthia has not incurred significant costs to date.

Her concern in this regard is really a concern about the future – related to both Gareth’s health and Cynthia’s own health with any impact the ability of each to work. At present, however, on the financial information provided, she should be able to satisfy all of her stated needs.

I am not satisfied on the evidence that Cynthia has any significant needs to advance in life which cannot be funded out of her existing savings and surplus funds.

Karen was born on 29 March 1980.

Karen gave evidence is similar terms to Cynthia in relation to her period living with the Deceased and Dawn.

From about 1988 until 1997 when she left home, she would work on Lowery every second weekend which she was not staying with Warren. She would also work on the farm during school holidays and after school, sometimes missing school to work on the farm. She worked ten hours a day, doing hard physical work including into the night she did not receive any payment for this work.

When not at Lowery, Karen was undertaking domestic duties at home, including the laundry, mowing the lawns, doing the dishes and helping cook dinner. In turn, the Deceased provided for Karen’s upbringing whilst she lived with him including food, clothing, accommodation and schooling etc.

Karen’s evidence as to the alleged abuse was similar to Cynthia’s. The following summary suffices:

In addition to the alleged sexual abuse, Karen also gave evidence of being treated harshly by the Deceased, who would often say “you’re not my daughter”. He also apparently hit Karen with “polypipe, leather strap or stock whip”. From time to time he would lose his temper with Karen. He also apparently stopped Karen from seeing Warren as much as she would have liked, as well as her paternal grandparents (Warren’s parents). He treated Michael and Peter better than Karen.

Karen agreed in cross-examination that she partially hated the Deceased. She did not give any evidence of any particular love or affection that she had for the Deceased.

Karen reported the alleged sexual abuse in 1997. She made a claim for victims compensation and was awarded $25,000 in February 2005.

Karen left the Toogong Property in about April 1997, never to return. She has had no real contact with Dawn or the Deceased since then.

Karen has been living in a de facto relationship with her partner, Peter Collins (Peter) for over 20 years, and they have two children; a daughter Georgia who is approximately 20 years old, and a son Harry, who is now 16. They live in a house in Bolwarra, near Maitland, which is registered in Peter’s name and subject to a mortgage.

Karen currently works as a shotfirer at Glencore Ravensworth, having recently obtained the necessary qualifications.

Karen put into evidence her financial position at two points in time. First, as at 22 December 2021, when she estimated her assets and liabilities as well as provided details of her earnings and monthly expenses. She then provided an updated affidavit as at 10 May 2024.

As at 22 December 2021:

At this time, her long term partner, Peter, was then employed as a Maintenance Manager, earning $15,000 per month gross, $10,204 net. At this time, he also had assets totalling $1,262,163.53 and liabilities of $678,355.76.

By 10 May 2024, things had apparently changed somewhat.

Whereas Karen was previously employed on a part time basis, she had now been made permanent and was earning $8,232.14 gross per month, $5,392.14 net, an increase of approximately 34%. Peter is now earning $18,400 per month gross, $12,037.54 net, an increase of approximately 22%. As such, they now have a combined annual income of $318,000 gross.

The asset position of Peter and Karen can be summarised as follows:

One notable change to the asset position is that Peter has bought a boat, which is heavily financed.

Some time was spent during the hearing cross-examining Karen in relation to the claimed monthly expenses of $16,867.73 – a three-fold increase on the previous estimate. This later estimate was prepared having regard to her bank account statements whereas this task was apparently not carried out in relation to the earlier estimate.

There was considerable focus on the item “Entertainment” which was not in the earlier estimate and which totalled $3,002.85 per month. Karen agreed that both she and Peter worked long hours and thus were not ones to be going out entertaining during the week. When pressed, Karen said that included in “Entertainment” would be things such as some holidays, online shopping, take away meals, alcohol, subscriptions to streaming services such as Netflix and the like.

Karen also acknowledged that she had recently received $50,000 from her father’s estate, being the repayment of a personal loan which she deposited into the family’s bank account. She also “received” $72,510.60 being her share of her inheritance under her late father’s will although reduced as a result of a family provision claim brought by her father’s spouse, which was settled out of court. These monies had been deposited into a controlled monies account operated by her solicitors in these proceedings and used to pay legal fees for these proceedings.

In light of this financial position, it is difficult to avoid the conclusion that the non-satisfaction of the “needs” which Karen identified in support of her application for provision out of the Deceased’s estate are more the product of lifestyle choices in prioritising entertainment and the like over the so-called needs identified.

First, Karen said she would like to be afforded the opportunity to seek admission for a Bachelor of Engineering at the University of Newcastle and complete that degree. She had previously completed one year of a Bachelor of Construction but was not able to progress in this degree because she fell into financial difficulty and had to return to work. On the current university fees, the new degree has $67,666 for tuition fees. As was pointed out to Karen in cross-examination, the total cost could almost have been covered by the $50,000 personal loan repayment from her father’s estate.

Second, Karen referred to her suspicion that her motor vehicle, a 2010 Landcruiser Prado – one of three vehicles in the family – required further mechanical works. No estimate was provided as to the value of these works or indeed what work was likely required so the claim can be put to one side.

Third, Karen contended that a reduction in the monthly mortgage repayments by reducing the principal loan would make a substantial difference to her family’s monthly expenditure. If the mortgage was reduced by $100,000, the monthly payments would drop by $738. It would appear, however, and Karen admitted as much, that no real attempt had been made to make increased mortgage payments even though $3,000 was being spent per month on entertainment.

Fourth, Karen identified certain maintenance and improvements to their property totalling $126,000, including $8,000 for the manufacturing and installation of security fencing. Again, it was pointed out that some of the money from her father could have been used for these items if indeed these were priorities.

The position in relation to the alleged need for security fencing is particularly problematic. Karen contended that “my house is not secure as anyone can enter my backyard from the front of my house”, yet she accepted that the position had existed for some time and would cost $8,000 to carry out but nothing had been done about it. Again, this is against the background of what money is apparently being spent on, including $3,000 per month on entertainment.

If indeed the need for security fencing was a true priority, it could easily have been carried out with some moderate “belt tightening”.

Finally, Karen contended that she wished to receive therapeutic treatment from a regular psychologist on a fortnightly basis or weekly basis in Newcastle. Karen contended that the cost of the appointments and requesting time off work have prevented her ability to receive treatment. She gave an example of needing a four hour session recently at a cost of $220 per hour, total cost of $880. Karen agreed in cross-examination that she could ‘tap into’ the $3,000 per month spent on ‘entertainment’ to pay for these appointments.

Karen is in quite a sound financial position for her stage in life. She has not demonstrated any relevant need for further provision.

Glennis was the youngest of the three Bradley children, born on 9 August 1981.

Her evidence had a number of similarities and some differences to that given by Cynthia and Karen. One of the key differences was that Glennis purported to withdraw the allegations in 1997, contending that Karen had put her up to making up the allegations. I deal with this issue below when I deal with the findings I make on the sexual abuse allegations.

Glennis says that the Deceased commenced living with them in 1984. Other witnesses put it a little later but nothing turns on this and Glennis was only two years old at the time. She lived with the Deceased and Dawn until she was 16 years old and was dependent on him during that period.

The Deceased moved into the Maryville property with Dawn, Cynthia, Karen and Glennis and then in about 1988, they all moved to the Toogong Property. Glennis’ recollection is that Michael and Peter stayed every weekend.

From about 1988 until she first left in 1997, Glennis worked on Lowery during school holidays and every second weekend when she was not staying with Warren. She would work approximately 10 hours per day on the farm, without pay and often missed days of school to work on the form. The work was hard physical work.

In addition, Glennis carried out various domestic duties at the Toogong Property.

The Deceased in turn, paid for food, clothes, school tuition, accommodation and living expenses etc. Glennis did not give any evidence of any particular love or affection that she had for the Deceased.

Glennis’ affidavit evidence as to the abuse she experienced at the hands of the Deceased may be summarised as follows:

Glennis reported the alleged abuse in 1997 and subsequently made a complaint to NSW Police. She applied for victims compensation and received $25,000 in May 2005.

On or about 14 April 1997, Glennis left home with Karen. Glennis says this was due to the abuse they suffered at the hands of the Deceased.

On or about 9 May 1997, she returned home to the Toogong Property to live with the Deceased and Dawn. Shortly thereafter she made a statement withdrawing the allegations and stating that Karen told her to make them up. In cross-examination Glennis contended that she was brainwashed into saying this by Dawn and the Deceased. This was obviously disputed and I deal with it below when I deal with the findings I make on the sexual abuse allegations.

Glennis has been in a de facto relationship with Dallas Cameron (Dallas) since 2008 They have two children together, Joslyn born 29 November 2010 and Ruby born 3 May 2012.

Glennis works in Dallas’ business, Westlake AG Inputs Pty Ltd (Westlake) which is involved in rural merchandise, freight and contracting. They live at a property at Graham Road, Lake Bolac in Victoria (near Ballarat), which they purchased on 10 January 2020.

Glennis gave evidence of her and Dallas’ financial position at two points in time, on 23 December 2021 and on 13 May 2024. Evidence was also adduced from Westlake’s accountant as at May 2022. This evidence from the accountant, for some unexplained reason, was not updated. Glennis also said in cross-examination that she did not believe that the accountant had sighted her most recent affidavit.

Glennis’ financial position was somewhat complicated by the structure that exists in relation to the business. Glennis was cross-examined in relation to this structure and the financial position but was not able to assist on a number of aspects.

As at May 2024 doing the best I can, the position appears to be as follows:

Dallas’ financial position appears to be as follows, having regard to the annexures to Glennis’ 13 May 2024 affidavit (noting that no affidavit was filed by Dallas):

Given Glennis’ lack of knowledge of the detail, and the fact that no up to date evidence was sought to be adduced from Melissa Cunliffe or that she sighted and approved Glennis’ 13 May 2024 affidavit, it is difficult to have any clear position of Glennis’ financial position. Whatever may be the picture painted in Glennis’ 13 May 2024 affidavit, the fact is that she is the shareholder (albeit as trustee for the family trust), of a business that employs at least 10 people. The balance of the Div 7A loan account also suggests that substantial funds have been provided to Glennis and her family by the business. There appears to be considerable equity in each of the Graham Road and Montgomery Street properties. There are also likely cyclical cash flow issues that exist in a rural business such as Westlake.

Glennis gave, at times, quite emotional evidence about her struggles, including financial struggles. One can well understand her position, dealing with these proceedings, raising two children and working in a busy business. The difficulty however, is that the Court has not been presented with any clear evidence as to her financial position against which to test the needs she identified: see, for example, Bruce v Greentree [2015] NSWSC 1611 at [168]-[171] per Hallen J, and the cases there cited.

Glennis included in her affidavit evidence details of her monthly income but accepted in cross-examination that this was not correct in that it did not include at least rent from the Montgomery Street property.

In terms of monthly expenses – as at December 2021 they were estimated to be $6,271.28 per month but had almost doubled to an estimated $11,582.51 per month as at May 2024, including $2,768.72 of “Miscellaneous expenses”.

Glennis identified three broad categories of financial need.

First, provision to reduce the mortgage on the Graham Road property. Reducing the mortgage by $100,000 would reduce monthly expenses by $391. This is only a three percent reduction in total monthly expenditure.

Second, money for completing renovations on Graham Road. The total cost is estimated at $30,000, of which $15,000 has already been paid. $15,000 was thus sought by way of further provision. Glennis admitted, however, that if further provision was not made by the Court, she could pay for it out of amounts she had saved up.

Also, Glennis, like her sisters, “received” $72,000 from Warren’s estate. Of this money, $10,000 was spent on braces for Glennis’ eldest child, leaving $62,000 which has been put towards legal fees in these proceedings. Glennis was also offered $55,000 to compromise these proceedings which she did not accept because, no doubt among several reasons, it would have prevented Glennis from making a family provision claim on Dawn’s estate when she passes away.

Third, provision was sought to send Glennis’ youngest child to a private school to join their eldest child, including to board a couple of days a week. The total cost is $10,780 per year, $898 per month, or about $225 per week. It is difficult to see this as a true need as opposed to something it would be nice to have and it is difficult to be satisfied that Glennis’ financial position is such that it cannot be afforded. As set out in the previous paragraph, there is also the diversion of good money (from Warren’s estate) to pay for legal fees in the present case.

On the evidence presented, with its shortcomings, I am not satisfied that Glennis has demonstrated any need for further provision.

Dawn Irvine was born on 8 January 1956. Although she never married the Deceased, she took his surname by deed poll.

She gave evidence of being in an abusive relationship with Warren. She left the marriage, with her three young children and little more than a car, and moved to a refuge in Bathurst in about 1983. She had no money and no bank account. She subsequently moved to a rented property at Maryville. She was placed on a supporting parents pension and received rent assistance.

According to Dawn, she and the Deceased commenced a relationship in late 1986. Others suggest it may have been earlier but it is not necessary to reach a conclusion about this. The Deceased either moved in with Dawn and her daughters at Maryville or spent a lot of time there. They all moved into the Toogong Property in about 1988. From this time onwards the Deceased supported Dawn and her three daughters. The Deceased was operating a transport business, MCJ Irvine Transport at this time as well as helping his parents run Lowery. Dawn assisted Max and his parents (principally his mother after his father fell ill) at Lowery.

After Verdun died in 1992, there were family provision proceedings which resulted in Lowery being subdivided. The Deceased and his mother continued to farm the southern portion of Lowery with Dawn’s assistance.

From the time that Dawn moved to the Toogong Property, in addition to assisting at Lowery, Dawn assisted the Deceased in the conduct of the trucking business, taking phone calls, organising loads and helping with paperwork.

The Deceased was badly hurt in 2012 after an accident in the cattle yards. He suffered broken ribs and some vertebrae. Dawn cared for him during this period.

By all accounts, Dawn had a loving relationship with the Deceased for approximately 35 years. She stuck by him through the sexual assault allegations and the subsequent criminal trial, losing all contact with her daughters in the process. She denies, and continued these denials in cross-examination, that there was any abuse.

Under the Deceased’s Will, Dawn has, in substance, a life interest to reside in the Toogong Property. After the flood she lived with Peter and his family for a period and now lives in a temporary pod on the property whilst a new residence is constructed. Dawn lost virtually everything in the flood.

She gave evidence of her desire to remain living at the Toogong Property in the newly constructed residence (when this occurs) for as long as she can. The property has sentimental meaning to her, and she has built a social network around Toogong.

Dawn received a flood relief payment of $25,000 from the NSW Government on 15 September 2023. She also received, or has access to, the insurance proceeds on the contents of the Toogong Property.

She also currently receives $500 per week from Michael in his personal capacity, as rental for the storage of his machinery in the shed on the property and to compensate for her time to monitor and maintain the security of the shed.

She expected to receive Max’s superannuation as the nominated beneficiary with a value of approximately $93,000. However, apparently because there was no binding nomination in effect at the date of death, these monies have been paid to the estate.

Given her age, Dawn obviously has limited to no future employment prospects. It is likely, however, that she is now eligible for the aged pension. Dawn has not yet applied whilst these proceedings were ongoing and she is receiving $500 a week from Michael.

Her current assets are:

Dawn also gave unchallenged evidence of the Deceased’s testamentary intentions. She and the Deceased had many discussions over the years to the effect that “the girls are not to get anything from us ever again” once the 2001 Cowra Court case against the Deceased concluded.

Michael and Peter also gave evidence and were cross-examined. Their credit was not seriously challenged.

Prior to the hearing, Michael made it clear that he no longer put his personal financial circumstances forward as relevant to any of the claims for further provision out of the Deceased’s estate. During the course of the hearing, and prior to giving evidence, Peter took the same position. Accordingly, the evidence which each had served as to their financial circumstances was not read.

Each of Michael and Peter gave evidence of having a close and loving relationship with their father, the Deceased. After their parents’ separation, they lived mostly with their mother but would spend time with their father on weekends and school holidays.

In Michael’s case, he completed his schooling in 1997 and began working full time for the Deceased without wages. He lived with the Deceased and Dawn at the Toogong Property from 1997 and has continued living there on and off all of his life. By about 1998, he had stepped up and started organising and managing the truck business as well as helping manage the farm.

Michael stuck by the Deceased during the criminal court case and gave evidence of the toll that it took on the Deceased and Dawn. He gave evidence that during the court case his father said to him words to the effect:

Michael denied any wrongdoing by his father and also gave detailed evidence responding to the allegations made by each of Cynthia, Karen and Glennis insofar as he was involved. He was not seriously challenged on this evidence in cross-examination. He had direct involvement in one of the allegations made by Glennis – when they were changing the wheel bearings on the boat trailer – and denied there was any abuse.

Michael was a partner with his father and Dawn in both the trucking and farming businesses – which were merged in 2015 – and since March/April 2021 has been the sole operator of those businesses.

Michael is currently arranging for a new house to be constructed on the Toogong Property using the insurance proceeds. Development consent has recently been granted by Cabonne Council. Michael gave evidence, over objection, at a very high level, that he expects that all of the insurance proceeds will be spent on rebuilding. Time will tell whether that proves to be the case.

Peter gave evidence that whilst he resided with his mother until he was 16, he regularly stayed with the Deceased and Dawn on weekends and school holidays. When he was 16, he and Michael moved in permanently with Dawn and the Deceased at the Toogong Property.

After leaving school in 1997, Peter worked fulltime on Lowery with the Deceased, Dawn, Michael and for a time the Deceased’s mother, Ruth. When he was 18 he started driving the Deceased’s trucks and became a partner in the trucking and farming businesses. He and Michael worked, on average 12-14 hour days, including most weekends.

He continued to reside at the Toogong Property until 2007 and worked as a partner in the business until 2011 when he left the business to earn regular wages at Cadia Mine. During the time that he worked in the family businesses he was not paid a regular wage for either his truck driving or work on the farm. Only his expenses were covered by the business.

Peter gave evidence that the Deceased often said to him, Michael and Dawn words to the effect:

On several occasions after Peter left the family businesses, the Deceased said to him words to the effect:

In 2021, after the Deceased was diagnosed with cancer, he said to Peter words to the effect:

Peter also supported the Deceased through the criminal proceedings including assisting with the payment of legal fees. He gave evidence of the toll that he observed the proceedings took on the Deceased and Dawn and the extra effort that he and Michael had to put in during this period to keep the businesses running.

Peter also gave evidence denying the sexual abuse allegations insofar as he was alleged to be involved.

Each of Cynthia, Karen and Glennis sought to rely on reports of Mr Sam Albassit, a psychologist. Mr Albassit provided separate reports dated 15 May 2024 in respect of each of Cynthia, Karen and Glennis. Mr Albassit initially made earlier reports which were replaced by the 15 May 2024 reports, after objection was taken by counsel for Michael to the entirety of the earlier reports on a variety of bases. I admitted these later reports of Mr Albassit over objection on the basis that they purported to support the condition alleged by each of Cynthia, Karen and Glennis: see [35.6] of Practice Note SC Eq 7. Mr Albassit was cross-examined briefly.

Mr Albassit’s opinions are of little utility in circumstances where Mr Albassit admitted that he was asked to assume that what he was told was correct, namely that the alleged abuse in fact occurred. He agreed that if the abuse allegations were not true, he would change his views. None of Cynthia, Karen or Glennis seek findings as to the truth of the abuse allegations. Mr Albassit was not asked to consider the basis on which the case was in fact conducted, namely, that each of Cynthia, Karen and Glennis believed that they had been abused.

Whilst perhaps not relevant at this stage, it should be noted that the actual and estimated (up to the conclusion of the hearing) legal fees incurred by the parties are very considerable. They may be summarised as follows:

On an indemnity basis, the total costs are estimated at $713,018.98.

I recently summarised, at a general level, the relevant legal principles in Dighton v Norwood [2024] NSWSC 318 (Dighton) at [87]-[107]. I do not repeat what I there said.

I add the following, having regard to the issues alive in the present case.

First, Dighton involved a claim by a spouse. In the case of Dawn, she was a de facto spouse of considerable duration – some 35 years. She was, in substance, the surviving spouse of the Deceased and the principles – accepting that they are not rules of law or statutes – set out in the case law, have relevance to Dawn’s claim.

Second, in the cases of Cynthia, Karen and Glennis, where they were not the natural children of the Deceased, they need to establish:

There was no dispute that such of Cynthia, Karen and Glennis satisfied the first requirement. The “factors warranting” requirement is ordinarily taken to mean that there are circumstances which, when added to the facts that make a plaintiff an eligible person, make that plaintiff a natural object of testamentary recognition: Re Fulop Deceased (1987) 8 NSWLR 679; Spata v Tumino (2018) 95 NSWLR 706 (Spata) at [95] per Payne JA (with whom Macfarlan JA agreed).

In the context of step children, Payne JA in Spata stated (at [97]):

In Yee v Yee [2017] NSWCA 305 (Yee), McColl JA (with whom Gleeson JA and Simpson JA relevantly agreed) stated at [175] and [177] (emphasis added):

I also bear in mind that the question of whether there are factors warranting the making of an application under s 59(1)(b) is distinct from the question of whether adequate provision has been made, although both involve a broad discretion and that in any given case there will be facts that are relevant to both stages of the analysis. The first question under s 59(1)(b) is a “jurisdictional” question: see Page v Page (2017) 16 ASTLR 331 (Page) at [38] per Leeming JA.

In Page v Page [2016] NSWSC 1218, Hallen J made a number of observations in relation to the relevance of sexual assault allegations in family provision claims. At [57]–[60] his Honour stated:

An appeal from Hallen J’s decision was dismissed: see Page.

There are, however, cases where it has been suggested that if the Court determines that the allegations of sexual assault are false, that may totally disentitle a claimant: see Rowley v Bouwmeester [2005] TASSC 34 (Rowley) at [40]; Williamson v Williamson [2011] NSWSC 228 (Williamson) at [132] per Hallen AsJ.

Other cases appear to have been determined on the basis that a belief on the part of the plaintiff that the conduct occurred is sufficient to explain the conduct of the plaintiff towards the deceased and the Court does not need to determine whether or not the allegations are true. Williamson was one such case. Fallow v Mullins [2012] NSWSC 406 is another.

Michael’s counsel contended that most of these cases – where a belief has been held to be relevant – proceeded on the basis of a concession or acknowledgment by the estate as opposed to the Court determining what is relevant when the issue was contested. A belief does not satisfactorily explain an estrangement and is therefore irrelevant.

Counsel for the plaintiffs in the Bradley Proceedings made it clear in opening that he did not contend that the Court was required to find that the alleged sexual assaults occurred. Rather, he contended that it was sufficient for the Court to conclude that each of Cynthia, Karen and Glennis believed that they occurred.

Michael contended that the Court should conclude that the alleged sexual assaults did not occur and that, like the position adverted to by Blow J in Rowley, the making of the allegations disentitled each of Cynthia, Karen and Glennis from succeeding.

The fallback position propounded by Michael was that the Court is not able to decide one way or the other as to whether the alleged assault occurred and as such it was a neutral factor. Michael also contended that the cases where a belief has been held to be relevant were based on a concession or acknowledgment and did not amount to any principle of law. A belief of sexual assault, and nothing more, does not explain the estrangement.

I deal with this issue below.

As set out above, each of Cynthia, Karen and Glennis gave evidence of being abused by the Deceased, including sexually. As I understood the case propounded by each of Cynthia, Karen and Glennis this evidence was put forward to explain why it is that they left the family home and have had nothing to do with the Deceased or Dawn since that time – 1997 in the case of Cynthia and Karen and early 1998 in the case of Glennis. It was Cynthia, Karen and Glennis that introduced these allegations in their first affidavits filed in the Bradley Proceedings. Michael then responded. It cannot seriously be doubted that their introduction substantially added to the factual issues in the case and thus the length of the hearing

Counsel for Cynthia, Karen and Glennis contended that I was not required to find whether or not the alleged sexual abuse happened – it being sufficient for me to find that each of Cynthia, Karen and Glennis believed that it occurred. Counsel for Michael contended that I should positively find that the alleged abuse did not occur, that the allegations were made up, and that this amounted to disentitling conduct, relying on the decision of Blow J in Rowley referred to above.

There are many cases which make it clear that the Court on an application such as the present should not determine whether the allegations of sexual assault that have been made have been established. This no doubt explains the position taken by counsel for Cynthia, Karen and Glennis and the fallback position taken by counsel for Michael.

There is, however, some authority in support of the primary position advanced by counsel for Michael and as such I must consider whether I am satisfied on the evidence presented that the allegations are not true and that Cynthia, Karen and Glennis made them up.

The starting point is that counsel for Michael accepted that the finding that he asked the Court to make – that the allegations were fabricated for financial gain – was an extremely serious allegation and that having regard to s 140 of the Evidence Act 1995 (NSW) (Evidence Act), I must have regard to the gravity of the allegation in deciding whether I am satisfied on the balance of probabilities.

As Kiefel CJ, Gageler and Jagot JJ recently observed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (at 874-875 [57]), s 140 of the Evidence Act:

The contentions advanced by counsel for Michael focus on the conduct of Glennis. I set out the relevant chronology and contentions below.

The starting point is that, according to Glennis, on or about 14 April 1997, due to the abuse “we suffered by our stepfather”, she left home with her sister Karen. It is not entirely clear when Glennis first made allegations of sexual abuse to the staff at her school – James Sheahan High – or the Department of Community Services. It appears to have been prior to 14 April 1997 because there was in evidence a note prepared by a Department of Community Services Assistant Manager of an interview with Glennis on 14 April 1997 at James Sheahan High School. The case note relevantly states:

By 12 May 1997, Glennis had gone home to live at the Toogong Property with Dawn and the Deceased. Glennis was interviewed by DOCs on that day. The note of that discussion is as follows (emphasis added):

Dawn was subsequently interviewed on 12 May 1997. The note of that interview was as follows (emphasis added):

Max was then interviewed. The note of this interview was as follows:

The next day, Cynthia was interviewed. The report of that interview was as follows:

On 2 July 1997 Glennis made a statement to NSW Police, withdrawing the allegations. The statement is recorded in an NSW Police notebook signed by Glennis. The entry relevantly provides:

In about May 1998 Glennis left the Toogong Property and went to live with Cynthia after Cynthia gave birth to her daughter. On 1 June 1998 Glennis made a further statement to NSW Police again making the allegations of sexual abuse.

Glennis was extensively cross-examined on these events. She admitted that she said to DOCS and NSW Police that Karen had made her make up the allegations. She repeatedly denied, however, that this was a true statement and contended that she had been bullied or brainwashed into saying this in circumstances where all she wanted to do, as a 15 year old girl, was to go home to her mother. Precisely who she was bullied or brainwashed by was not stated by Glennis in cross-examination or the subject of any re-examination. Further, Dawn was not cross-examined to suggest that she was part of any bullying or brainwashing of Glennis.

Each of Cynthia, Karen and Glennis repeatedly maintained in evidence before me that they had been abused in the matter set out in their affidavits.

The case theory advanced by counsel for Michael was that it was when Glennis was under the influence of Karen when she first made the allegations but when she had returned home, out of reach of the influence of Karen, she withdrew the allegations and correctly identified Karen as the source of them. So the argument went, there was no reason for Glennis to name Karen as the source of making up the allegations unless it was the truth.

Similarly, if Cynthia had thought that there was any truth to the allegations she would not have permitted Glennis to return home in May 1997. Yet, there is nothing in the note of the discussion with Cynthia on 13 May 1997 to suggest she had the slightest concern with Glennis returning home.

The theory then proceeded on the basis that it was only when Glennis had again left the Toogong Property and went to live with Cynthia after the birth of Cynthia’s first child in May 1988, that Glennis came under the influence of Cynthia who persuaded her to reinstate the allegations and make a fresh statement to NSW Police.

The final links in the case theory were that each of Cynthia, Karen and Glennis was motivated by a desire to make money through victims compensation and also a hatred of the Deceased because of how he treated them and the impact he had had on their lives including their relationship with Warren. Further, it was contended that each had cut and pasted the false allegations from their police statements into their affidavits in these proceedings so that the evidence would be the same.

Having regard to the gravity of the allegations made by counsel for Michael, I am not actually persuaded that they have been made out. I do not feel an actual persuasion on the evidence before me that the sexual abuse allegations are false.

Each of Cynthia, Karen and Glennis maintained the allegations before me. They were cross-examined at a relatively high level. There was no close examination or scrutiny of each of the allegations so as to permit a proper assessment of each.

The core elements of the case theory advanced by counsel for Michael do not lead me to be comfortably satisfied that the allegations are false.

First, there are the DOCs notes of 14 April 1997 and 12-13 May 1997. Whilst it is clear that Glennis said that the allegation about asking for sexual intercourse were not true and that it was all Karen’s idea, Glennis gave evidence before me as to why she said those things – namely because she wanted to go back home to be with her mother. For a 15 year old girl this is not so far fetched as to be rejected. The inclusion of the reason for making it up – namely that it was Karen’s idea – is also not so farfetched as to be rejected.

Further, Glennis did not withdraw all of the allegations, only perhaps the most serious of the allegations of asking for sex.

The documents also record that Cynthia maintained the allegations insofar as they related to her. There is nothing to suggest that Karen withdrew her allegations.

The postulated motives are also not so clear as to accept the serious allegations that the abuse allegations were made up, particularly in the absence of any detailed evidence and testing as to the circumstances relating to each alleged incident. As to the alleged financial motive, this is supported by a statement attributed to Dawn. Whilst Cynthia accepted that at the time she left home she had no money it was not demonstrated that any application for victims compensation was made at the time or that there was any expectation that compensation would be received quickly. There was some evidence of an application being submitted by Cynthia in 1999 and otherwise that compensation was received between 2002 and 2005. Each of Cynthia, Karen and Glennis denied the alleged motive.

As to the hatred of the Deceased, whilst the evidence suggested that the relationship that each had with the Deceased was not close and loving, it did not clearly rise to the level of hatred so as to provide a motive for the making of false allegations to the police. Again, each of Cynthia, Karen and Glennis denied this motive.

The contention that the abuse allegations were cut and pasted from the police statements was also not clearly established on the evidence. In any event, the point does not go too far. The police statements were much closer in time to the events in question and there would be nothing nefarious in referring to an earlier statement for the purposes of giving evidence in these proceedings.

I am also conscious that there has been a criminal trial in respect of the allegations, at which the Deceased apparently gave evidence, and the jury found the Deceased not guilty on all charges. That was obviously on the evidence adduced at the criminal trial, which included evidence by the Deceased who was obviously not able to give evidence before me.

Reliance was also placed by Michael on the fact that Dawn was shown, by the fact she left an abusive relationship with Warren along with the girls with little or nothing in the way of money or possessions, to be a person of character who would not sit idly by whilst her children were being abused by the Deceased. The fact that Dawn did not leave the Deceased was said to be evidence telling against the abuse occurring. I agree that this is a matter that tends somewhat against the abuse having occurred. The precise circumstances as they existed with Warren were not, however, explored at the hearing. I do not regard the point as being overly powerful in the circumstances of the case and it does not cause me to conclude, in all of the circumstances, that the allegations were made up.

In all of the circumstances I am not persuaded that the allegations were made up. I proceed on the basis that I am not able to determine one way or the other whether the allegations are true or not. Given the long period where there was no contact between any of Cynthia, Karen and Glennis and the Deceased – and that this in the other circumstances of the case is fatal to the claims for further provision – there is no utility in considering whether the abuse allegations were believed to be true by Cynthia, Karen and Glennis.

It was not suggested that there was any significant difference between the cases propounded by Cynthia, Karen and Glennis, at least at the threshold level of whether an order for provision should be made. There were relatively minor differences between the amounts put forward for each by counsel in closing address. I therefore consider all of the three claims together.

The first hurdle is whether each of Cynthia, Karen and Glennis have established that there are – having regard to all the circumstances of the case (whether past or present) - factors which warrant the making of the application.

As set out above, this requires it to be demonstrated that there are circumstances which, when added to the facts that make a plaintiff an eligible person – in the present case being wholly or partly dependent on the Deceased and a member of the household of which the Deceased was a member – make that plaintiff a natural object of testamentary intention. An adult step child of the Deceased is not normally regarded as a natural object of testamentary recognition: Spata at [97].

Cynthia, Karen and Glennis have not established that there are factors warranting the making of the application. Having regard to all of the circumstances of the case, I am not satisfied that they should be regarded as a natural object of testamentary recognition. There is nothing to demonstrate a social, domestic or moral obligation on the Deceased to make some provision for them.

Like the position in Yee set out above, the matters which rendered each an eligible applicant – dependency and membership of a household - had ceased to have any real significance over the period of their relationship as a whole. Any bond they once had, and it is far from clear there was any real bond, was well and truly broken by the time of death.

Although each of Cynthia, Karen and Glennis lived in the same household as the Deceased, and he provided for them, throughout a large part of their childhood, there is nothing to indicate a particularly close or loving relationship between them and the Deceased. There is no evidence that each regarded the Deceased as their father. To the contrary, each of Cynthia, Karen and Glennis maintained a relationship with their biological father, although they suggested that to some extent the Deceased and Dawn acted so as to prevent the three spending time with their biological father. It does not appear to be in dispute that each did maintain a relationship with their biological father, Warren.

There is some evidence that each was not particularly fond of the Deceased. Cynthia described him as a house dictator. Glennis gave evidence that it was the Deceased that taught her to drive, robbing Warren of the experience of teaching Glennis. There is also evidence from Karen that the Deceased did not regard them as his children and somewhat resented having to provide for them, with Karen recalling that the Deceased often complained about paying for Cynthia, Karen, and Glennis and that the Deceased had said words to the effect of “these aren’t my fucking children. Why am I paying for their food and school fees”, saying “you’re not my daughter” to Karen and that the Deceased became angry that “too much of the family’s money” was being spent on sanitary items.

Whilst it is clear that each of Cynthia, Karen and Glennis performed manual labour at Lowery on some weekends and school holidays, and did chores at the Toogong Property, that was all done as part of the household in which they were living and from which they all benefited. I do not regard this work as somehow making each of Cynthia, Karen and Glennis a natural object of testamentary recognition by the Deceased having regard to the totality of the relationship which each had with the Deceased.

A critical circumstance in the present case is that the was no contact between any of Cynthia, Karen or Glennis with the Deceased and Dawn since the time that each left the Toogong Property – 1997 in the case of Cynthia and Karen and early 1998 in the case of Glennis – a period of in excess of 20 years. After the criminal trial and the acquittal there was no attempt by any of Cynthia, Karen or Glennis to reestablish contact with the Deceased or Dawn. To the contrary, each introduced the abuse allegations into these proceedings.

Counsel for Cynthia, Karen and Glennis acknowledged that this period of no contact weakens their claims. He invoked the phrase “weakens the amplitude of the extent of the provision”. As I understood the submission advanced, he sought to obtain some support from the recent decision of Hmelnitsky J in Wilson v Wright [2024] NSWSC 519 (Wilson v Wright). Nothing in Wilson v Wright supports Cynthia, Karen and Glennis’ claims in the present case. Each case must be determined on its own facts. In Wilson v Wright, the period of no contact was approximately one tenth of the period in the present case. The relationship between the deceased and the claimants in Wilson v Wright was also qualitatively quite different to that in the present case prior to the period that contact ceased.

Whilst the cause of the breakdown in the relationship in the present case is clear – the making of the abuse allegations – having rejected Michael’s contention that I should satisfied that the allegations were made up, it is not possible, nor is it appropriate, for me to determine who is right or wrong and thus seek to attribute blame for the breakdown.

The fact is that there has been no contact for over 20 years. During this period Dawn, Michael and Peter have stuck by the Deceased through the criminal trial and worked hard in the family businesses, thus assisting in maintaining and growing the Deceased’s assets.

Counsel for Cynthia, Karen and Glennis also sought to place some reliance on the Deceased’s statements as to why he was not leaving anything to Cynthia, Karen and Glennis. As I understood the submission, it was to the effect that the Deceased was intending to provide for Cynthia, Karen and Glennis in his Will but had decided not to because they had made the allegations of abuse and thus the Deceased should properly be regarded as punishing them for making the allegations which was not appropriate: see Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [56]-[57] per Basten JA. I do not accept this submission. I do not regard the Deceased’s statements as involving any element of punishment of Cynthia, Karen or Glennis or providing a circumstance justifying regarding them as a natural object of testamentary recognition. Rather, the statements, and the subsequent legacies left in his Will (made a matter of weeks before he died with knowledge of his impending death), reflect his genuine and heartfelt views preferring to provide for Dawn, Michael and Peter who stuck by him both emotionally and economically. These clear intentions should be given considerable weight. They are quite inconsistent with Cynthia, Karen and Glennis being a natural object of the Deceased’s testamentary recognition: see Estate of Awad [2023] NSWSC 765 at [67].

The claims fail at this first hurdle.

Assuming, contrary to what I have said above, each of Cynthia, Karen and Glennis did demonstrate factors warranting the making of the application, I am not satisfied that each has demonstrated, under s 59(1)(c) of the Act, that, at the present time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of each has not been made by the Will of the Deceased.

Again, I approach this issue having regard to the well understood principles that I summarised in Dighton at [87]ff. I am particularly mindful of the relevance of a deceased’s intentions.

A wise and just testator in the position of the Deceased would not have made provision in his Will for any of Cynthia, Karen or Glennis. Community expectations would not have required him to do so.

The Deceased provided for the upbringing of each of Cynthia, Karen and Glennis, along with their mother Dawn, during the period that each lived with him. Their relationship does not appear to have been overly close. There has been no contact for over 20 years. There was no moral duty for the Deceased to provide any more for them than he did during his lifetime.

The Deceased’s testamentary intention – to provide for Dawn, Michael and Peter – reflects his genuine and heartfelt affection for those who stuck by him, both emotionally and economically. They each have a very strong claim on the Deceased’s bounty.

In reaching this conclusion, I am conscious not to apportion any blame for the lack of contact. It is the fact of the lack of contact and its duration, in all of the circumstances, that removes any moral duty to provide any further than the Deceased did during his lifetime.

As set out above, I am also not satisfied that any of Cynthia, Karen or Glennis have demonstrated any particular needs that warrant further provision.

Counsel for Cynthia, Karen and Glennis sought further provision in the amount of $120,000 for Cynthia, $110,000 for Karen and $113,000 for Glennis. This further provision was said to be for their advancement in life. I regard these as ambit claims which did not pay any real regard for the evidence given in cross-examination by each.

As set out above, Cynthia appears, on her own estimates to be able to afford her stated needs; Karen is able to do it with some belt tightening; and it is impossible to reach any firm views as to Glennis’ financial position.

It is also difficult not to look past the fact that each of Cynthia, Karen and Glennis have decided, for whatever reason, to apply the not inconsiderable monies they received as an inheritance from Warren’s estate, to fund these proceedings. On my view of the merits of their cases, those monies would have been far better deployed towards the needs they identified, rather than speculated on the outcome of the present case.

It was not in dispute that the provision made by the Deceased for Dawn in his Will was inadequate. The principal issue was that whilst it provided for Dawn to continue to reside at the Toogong Property for as long as she wished, it did not provide beyond that, should she need to leave the Toogong Property for whatever reason.

There was debate as to what orders for further provision for Dawn were appropriate. That debate took the form of competing versions of orders. Counsel for Dawn circulated draft orders for which she propounded to which counsel for Michael responded and counsel for Dawn further replied.

Prior to and during the hearing, Cynthia, Karen and Glennis took the view that a form of Crisp order, capped at about $450,000 to $500,000 was appropriate but otherwise did not make any detailed submissions on the proposed orders. On 11 June 2024, and without prior notice or leave, the solicitors for Cynthia, Karen and Glennis provided to my chambers a form of orders that they contended should be made in respect of Dawn’s claim, together with submissions in support of those orders. The orders were different to those previously being debated at the hearing. Neither Michael nor Dawn objected to me considering these further submissions or proposed orders although Michael made a further brief submission in reply in relation to whether he should be required to use some of his personal funds on the construction of the new dwelling at Toogong.

Firstly, I deal with the dispute between Michael and Dawn in relation to each of the orders below. I then deal with the alternate orders proposed by Cynthia, Karen, and Glennis on the basis that the parties will then be directed to agree orders to give effect to these reasons.

In resolving these disputes, certain matters must be kept in mind. The starting point in considering the debate is to remember that Dawn was a de facto spouse of some 35 years and, thus, in substance, is the surviving spouse of the Deceased. The principles laid down in relation to surviving spouses – again recognising that these principles are not rules of law or statutes – thus apply to her. I summarised those principles in Dighton. Next, the terms of the Will, made a matter of weeks prior to the Deceased’s death, evinced a clear intention that Dawn should be permitted to live at the Toogong Property for as long as she wished ‘in the same manner as she has shared with [the Deceased] during [his] life’. Third, it is likely that Dawn will shortly receive the aged pension. Fourth, on 30 May 2024 the Cabonne Council granted Development Approval in relation to the replacement residence at the Toogong Property.

Order 1 relates to the insurance monies received in relation to the contents insurance at the Toogong Property. The debate seems to have reduced to a narrow one as to whether the form of the declaration to be made by the Court should extend to any interest that has been earned on the monies received. Michael’s position is that it is unclear why interest should be ordered given that the funds have always been in Dawn’s control, whereas Dawn says that, more for abundant caution it should be made clear that any interest earned does not form part of the estate. The declaration should extend to making it clear that any interest accrued is part of the monies held on trust.

Order 2 relates to the superannuation fund of the Deceased. Dawn was the nominated beneficiary of the fund but, as I understand it, there was no binding nomination in force at the date of death and as such the monies were apparently paid to the estate. The grant of probate refers to Dawn being the nominated beneficiary. The debate is whether Dawn should receive these funds by way of further provision or whether the other orders to be made by the Court provide adequate provision for Dawn. Whilst Dawn has some savings, and will shortly likely receive the aged pension, it seems to me that further provision should be made for Dawn by way of her receiving the superannuation payout. As counsel for Dawn pointed out in her reply submissions, such further provision would provide Dawn with ‘a hedge against any unforeseen contingency or disaster that life might bring’.

Order 3 concerns whether an order should be made to the effect that the contents insurance fund should be paid to Dawn. Such an order is not necessary in circumstances where it appears to be clear that Dawn has control of the fund and, pursuant to the declaration to be made as part of paragraph 1, the monies will include any interest.

Order 4 relates to the superannuation monies. In circumstances where, as set out in relation to order 2 above, the superannuation monies are to be paid to Dawn by way of further provision, an order should be made to this effect.

Order 5 relates to whether any interest is to run on either the contents insurance fund or the superannuation monies if they are not paid within 14 days of the date of the orders. There is no issue in relation to the contents insurance as Dawn already has control over those monies. In relation to the superannuation monies, an order should be made that interest is to run if the monies are not paid to Dawn within 14 days of the relevant order.

Order 6 concerns the insurance proceeds in relation to the rebuilding of the property. The debate in the written submissions appears to only relate to whether any interest earned on the monies paid out by the insurer form part of the monies held on trust. The monies held on trust should include any interest that has in fact been earned on the monies paid out so that it is clear that such interest does not form part of the general estate.

Order 7(a) was included by Michael to deal with the possibility that the Council may include onerous terms as part of the Development Consent. The Development Consent has now been received and does not appear to contain any terms which may enliven the concern unpinning order 7(a). The order is therefore unnecessary. If Michael contends that, having reviewed the Development Consent, there is a need for a bespoke order to deal with a particular aspect of the consent, then this issue can be raised as part of the settling of final orders.

Order 7(b) is agreed.

The tailpiece to proposed order 7 concerns the terms of Dawn’s right to demand a replacement residence. Two issues of principle appear to remain. First, whether the right is enlivened if a building occupancy certificate has not been obtained within 18 months unless Dawn consents to extending the 18 month period, or whether there should be a caveat that the right to demand a replacement residence does not arise if Michael is continuing to take all reasonable steps in an expeditious fashion to progress the rebuild of the original residence. Michael’s position should be accepted. Provided he is taking all reasonable steps in an expeditious fashion to progress the rebuild the right to demand a replacement residence should not arise.

The second issue in relation to the tailpiece, it not being in dispute that any replacement residence should be in Michael’s name, concerns whether the value of the property to be acquired as a replacement residence is only up to the value of the remaining insurance monies (as contended for by Michael) or should be up to the value of any residence the subject of the Crisp order (as contended for by Dawn). Dawn’s position is to be preferred. If the value of the replacement residence is limited to whatever insurance monies are left, then it is at least likely that this will yield a property of a very low value and thus be of no real benefit to Dawn. On the position advanced by Dawn, she will be able to move into a replacement residence of the same value covered by the Crisp order in circumstances where Michael will be able to reap the benefit of the completed value of the residence on the Toogong Property.

Order 8 is agreed.

Order 9(a) concerns the source of the funds used by Michael to pay the rates and outgoings in relation to the Toogong Property. The form of orders contended for by Michael provides for these monies to be paid out of the trust funds, whereas Dawn contends that there should be no such limitation. Dawn’s position should be accepted. The Will provides that Michael should pay these amounts, which is understandable given that he is to ultimately be the owner of the property. He will also continue to have the use of the property, other than the residence, during Dawn’s occupation.

Order 9(b) is agreed. There are several issues in relation to the chapeau to proposed order 9. First, whether the order should be conditioned by reference to some requirement of a reasonable need to move arising. Dawn opposes any such limitation being introduced. Such a qualification is unnecessary and at least has the potential to result in further disputation in due course as to whether Dawn has satisfied the condition. Dawn’s position should thus be accepted. Second, there is a dispute as to the dollar value limit to be imposed on the Crisp order. Michael contends that a limit of $450,000 is appropriate whereas Dawn contends that a figure of $600,000 is appropriate in circumstances where there is at least the possibility that the replacement residence will be sought in 10 years’ time, as opposed to the next few years. I propose to impose a limit of $550,000.

Order 9(c)(i) is agreed.

Order 9(c)(ii) is agreed, save for whether the words ‘with or without health care, hospitalisation and nursing or one or more of such services or like services’ should be included in the proposed order (as contended for by Dawn) or whether they should be deleted (as contended for by Michael). The dispute on the submissions appears to be a grammatical one, in the sense that Michael contends that the words are unnecessary particularly given that they begin with ‘with or without’. I see no downside in the words being included and as such they should remain in the proposed order.

Order 9(c)(iii) is not agreed. It relates to whether any unspent portion of the insurance proceeds received are to be held on trust for Dawn and able to be used by her for her own purposes. The debate appears to reduce to whether adequate provision is otherwise made for Dawn such that there is no need for an order for provision to extend to unspent insurance monies. On the evidence presented before me by Michael, it appears that most, if not all, of the insurance monies will be used in relation to the rebuild. In circumstances where those monies will only exist because of the flood and that Michael will not have used them as part of the rebuild, it seems to me that they should be provided to Dawn for her own use.

Orders 9(c)(iv) and (v), and order 10 are agreed.

I turn now to deal with the alternate form of orders submitted by Cynthia, Karen and Glennis on 11 June 2024.

Cynthia, Karen and Glennis contended that the orders proposed by Dawn are burdensome and unnecessarily complicated. In place of those orders, orders were proposed whereby Dawn would receive from the estate:

The essence of the contention that a construction cap should be imposed of $550,000, was a suggestion that the land was being overcapitalised and/or that there was no evidence of the cost of the associated works estimate by Michael. It was contended that Michael would receive a windfall in that he would ultimately receive a new dwelling.

I do not accept these contentions and do not propose to adopt the orders put forward by Cynthia, Karen and Glennis. Michael has provided an estimate of the additional costs that he believes will be incurred in addition to the building contract entered into. The appropriate order is for any surplus of the insurance proceeds not spent on the rebuild to be available to Dawn for her own use.

I will provide parties with a short period to seek to agree orders to give effect to what I have set out above. If there are any remaining disputes in relation to the form of the orders, they can be dealt with on the papers.

As requested by the parties, I will separately hear from them on the question of the costs of the proceedings.

At the commencement of the hearing, Mr Morrissey, counsel for the plaintiffs in the Bradley Proceedings, applied for leave to file a further amended summons. The effect of the proposed amendments was to add Irvine Farming and Transport Pty Ltd as a second defendant.

Irvine Farming and Transport Pty Ltd is a company controlled by Michael and his wife which now conducts the business, or at least part of the business previously conducted by the Toogong Partnership. The Deceased purported to resign from the partnership shortly prior to his death. As I understood the effect of the proposed amendment, it was to contend that the Deceased’s interest in the partnership forms part of his notional estate.

The application was opposed and after hearing from the parties I refused to allow the amendment. These are my reasons for so ruling.

The amendment was only formally foreshadowed the evening before the commencement of the hearing when a draft of the proposed further amended summons was served. The matter was last before me on 3 May 2024 when it was re-listed for pre-trial directions. On that occasion Mr Morrissey did not press for an order that Irvine Farming and Transport Pty Ltd be joined because Mr Morrissey stated that it appeared that there would be enough actual estate for all claims to be accommodated. Mr Goodyear indicated on that occasion that any application to add an extra party would be opposed but he did not need to deal with the issue as Mr Morrissey was not pressing for an order.

Mr Morrissey said that having received the opening submissions from Dawn on the evening of 17 May 2024 it appeared that there was now a prospect that the Deceased’s actual estate would not be sufficient.

Mr Goodyear raised several points in opposition. First, the application was made extremely late for no good reason. Allowing the amendment would likely have necessitated an adjournment of the hearing in circumstances where the company would likely have needed to consider whether it should be separately represented, it only being owned as to 50% by Michael, who is also the residuary beneficiary under the Deceased’s estate. There was the real possibility of a conflict between the interests of the company and Michael. Second, Mr Goodyear contended, in effect, that the application was futile because, having regard to the circumstances of the case, there was no real prospect of any notional estate order being made.

Dawn also opposed the application to amend in circumstances where it had the potential to impact the hearing of her claim.

I summarised the well-known principles applicable to an application for leave to amend pleadings in Yuan v Huang [2024] NSWSC 313 at [18]-[21]. As I there said, a party does not have a right to be permitted to raise any arguable case at any stage of the proceedings, subject to an order requiring it to pay the other party’s costs thrown away.

In my view, the plaintiffs in the Bradley Proceedings have had ample opportunity to bring a claim against the company. Whilst Dawn has previously made statements as to the nature and quantum of her claim, nothing put on her behalf was in any way binding so as to excuse the application to amend being made the evening before the hearing.

Had the amendment been permitted, an adjournment would have been likely. It would not be in the interests of justice for this to occur. I was already concerned as to the costs incurred and likely to be incurred, and the hearing time allocated to the two proceedings in relation to what is not, in relative terms, a large estate.

There was also much to be said for Mr Goodyear’s submissions as to the low likelihood of a notional estate order being made in the present case.

The claims of Cynthia, Karen and Glennis should be dismissed. Dawn’s claim succeeds and orders need to be agreed to give effect to these reasons. As requested by the parties I will hear from them on costs if agreement cannot be reached between them. Any remaining dispute will be determined on the papers.

The orders of the Court in both the Bradley Proceedings and the Irvine Proceedings are as follows: