Tarbes v Taleb

HIS HONOUR: The application before the Court is a family provision claim by Juan Segundo Tarbes (the plaintiff) in respect of the estate of his late wife Fekrat (Faye) Taleb (the deceased) who died on 10 August 2020 aged 65.

Claims by widowers are less common than claims by widows. As at late 2020, based on reported cases in all Australian jurisdictions, claims by widows have outnumbered claims by widowers by a ratio of approximately 4 to 1: John de Groot and Bruce Nickel, Family Provision in Australia (6th ed, 2021, LexisNexis) (de Groot & Nickel) at [2.1] fn 2.

The formation of the deceased’s estate is characterised by a number of remarkable features.

The deceased over the 30 years prior to her death engaged in many property dealings resulting in her amassing a sizeable estate. The dealings were marked by a number of characteristics.

First, it is not entirely clear why the deceased was attracted to property dealings. In any event, there was some dispute on the evidence as to how the deceased was able to fund the property purchases. I address this below.

Secondly, a number of properties intended for family members were registered in the deceased’s name seemingly at least in part for asset protection purposes.

Thirdly, the main asset of the deceased’s estate, a property at Bringelly (Bringelly property) which as of the date of the deceased’s death was estimated as having a value of $4.15 million, by the time of the hearing had rampantly increased in value by almost 3 to 4 times its date of death value, so as to create a type of “windfall”. This “windfall” might be reflective of an astute initial purchase or might simply be good fortune.

The size of the deceased’s estate, (approximately $14.383M-$17.458M, excluding liabilities) is what family provision lawyers would call a “large estate”.

There is no precise definition of what constitutes a “large estate”.

Nonetheless, within succession law, judges tend to make reference to estates as being:

Rarely, there is litigation over estates in which the deceased might have been an ultra-high net worth individual: e.g. Lemon v Mead (2017) 53 WAR 76; [2017] WASCA 215 at [19] (about $1B).

The importance of the estate being a “large estate” is that for the purposes of making the evaluative assessment of a plaintiff’s claim, the size of the estate is invariably a material factor.

In many, if not most, family provision applications questions of financial need and competition for their satisfaction out of the estate are prominent because of the limited scale of the resources available: Clayton v Clayton [2023] NSWSC 399 (Clayton v Clayton) at [107] citing Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189 (Lloyd-Williams v Mayfield) at [29]-[31] per Bryson JA (Giles JA and Stein AJA agreeing).

A particular characteristic of large estates is that financial needs and competition for their satisfaction out of the estate are often absent.

That is because the estate or potential notional estate is so large that any beneficiary who might bear the burden of any order for provision does not put his or her financial circumstances in issue or even if they are put in issue the reality is that an order will not impose any financial hardship nor have any significant adverse effect on the wellbeing of such beneficiary: Lloyd-Williams v Mayfield at [31]; Steinmetz v Shannon (2019) 99 NSWLR 687; [2009] NSWCA 114 (Steinmetz v Shannon) at [100] per Brereton JA; Anasson v Phillips (Supreme Court (NSW), Young J (as his Honour then was), 4 March 1988, unrep) (Anasson v Phillips) at 20. I address this more particularly below.

The proceedings were commenced by summons filed on 6 August 2021 seeking a family provision order pursuant to s 59 Succession Act 2006 (NSW) (Succession Act) for the plaintiff’s maintenance and advancement in life.

The deceased by clause 4 of her Will made on 16 October 2018 (last Will) directed sale of the Bringelly property within 6 months from the date of her death with the sum of $1 million to be held in a separate trust by the executors to purchase another property for the sole benefit, use and occupation of the plaintiff, and in the event that there were any surplus funds between the cost of the purchased property and the sum of $1 million, the deceased directed that the plaintiff have the benefit of income derived on such surplus funds. On the plaintiff’s death, the proceeds of the trust fund in any property were directed to form part of the deceased’s residuary estate (trust fund provision): CB 43-44.

Probate of the deceased’s last Will was granted to the defendants on 11 February 2021: CB 41.

I have determined that in lieu of the trust fund provision given to the plaintiff under the deceased’s Will, the plaintiff should receive a legacy in the sum of $2.5M.

Without intending any disrespect, it is convenient to refer to various of the deceased’s family by reference to their given or familiar family names.

Mr D Price of counsel appeared for the plaintiff. Mr L Ellison SC appeared for the defendants.

The parties provided written submissions prior to the hearing and throughout the hearing. Mr Price, in particular, provided additional submissions. Counsel also made oral submissions.

I will refer to the oral submissions by transcript page reference. For convenience, I will refer to the various written submission documents as follows:

The deceased was born in June 1955 in Damascus, Syria. She was known as Faye (in some parts of the evidence spelt “Fay”).

In or about 1973, as a young woman in her teens the deceased was married at the age of about 18 in Damascus to Ahmad Taleb (Ahmad).

The deceased had four children from her marriage to Ahmad being:

The deceased divorced Ahmad in 1994 and he died in 2016: CB 286[6].

At some stage after 2005, the plaintiff indicates that the deceased suffered some “physical difficulties” including loss of vision to the degree that she could not drive or read: CB 23[31]. Tarek accepted that the deceased did suffer such difficulties and loss of vision, though he disputed the cause: CB 315[19].

In or about late 2019 or February 2020, the deceased was diagnosed with rectal cancer: CB 24[42], CB 325[35].

The cancer appears to have been aggressive and/or the deceased succumbed quickly to its effects, and it is the first specified cause of her death: CB 49, 158.

The plaintiff was born in Chile in July 1954. He is currently aged 68.

In or about December 1980, the plaintiff finished high school in Chile. Prior to completing high school, he began working in an office for a textile company assisting with administrative tasks. After finishing high school, he did not go on to university but was able to do some courses on computing: CB 322[7]-[8].

Prior to meeting the deceased, the plaintiff had been married twice.

His first marriage was in 1977 to Savina Belarga (Savina). The deceased has two children from that marriage being Juan Fernando born in October 1978 (now aged 44) and Christian Andres born in October 1980 (now aged 42).

In or about 1984, the deceased divorced Savina. Seemingly, shortly thereafter, he married in 1984 Rosa Muñoz (Rosa). Rosa had a child named Oscar from a prior marriage. The plaintiff fathered a child, Phillippe, with Rosa – he being born in March 1985 and now aged 38.

The plaintiff emigrated to Australia in September 1987: CB 17[4]. He became an Australian citizen although does not recall the date on which that occurred.

In or about 1990-1991, the plaintiff divorced Rosa.

The plaintiff says he met the deceased in or about 1995 and began living with her in or about July 1996 at her house in Glen Alpine (Glen Alpine property): CB 18[12], 20[22]. This evidence is a little at odds with the plaintiff’s evidence that the deceased purchased the Glen Alpine property on or about 18 March 1997 (in the joint names of herself and Tarek): CB 20[21(b)]. Tarek did not respond to the evidence that the plaintiff commenced living with the deceased in July 1996. Laila did not deny the timing of July 1996. She stated: “I do not know and cannot admit that the de facto relationship commenced in about July 1996” and after her mother’s divorce “she was never wanting to get married again and was wary of the idea of a man coming into her life again”: CB 286[7]. However, Laila did not proffer any other possible commencement date. There was no cross-examination as to the inconsistency of dates. I propose to proceed on the basis that the plaintiff commenced living with the deceased from July 1996.

In May 1997, the plaintiff was injured leading to an application for a disability support pension (DSP). The plaintiff’s ongoing entitlement to the DSP after 2005 and whether he had any liability to repay monies (received pursuant to that entitlement) to Centrelink is one of the issues in the proceedings as it forms part of the plaintiff’s claim for provision.

On 7 September 1997, the plaintiff married the deceased in an Islamic ceremony: CB 18[13]. I will say more regarding the status of this marriage below.

The plaintiff is a native Spanish speaker and even though he has lived in Australia for some 35 years considers that he has limited English language skills. He states that he cannot read or write English. He communicates on English basic matters but is not fluent in anything that requires in his words “technical understanding”. This affidavit evidence was translated into Spanish for him and on the hearing of the proceedings he was assisted by a NAATI accredited translator in Spanish and English (bidirectional) both for the purpose of his giving of evidence and more generally in having translated to him, through a hearing loop, the running of the proceedings.

There appeared to be mild dispute from the defendants regarding the extent of the plaintiff’s ability to speak English. Laila states she never had any difficulties in communicating in English “on routine everyday things” with the plaintiff: CB 286[5].

Tarek says that he was always able to effectively communicate with the plaintiff. Although, he says that there were some times when he had to repeat things or put them into a different way for the plaintiff to understand: CB 312[5]. The extent of the plaintiff’s capacity to speak English was not probed on the hearing.

Three of the four children (being Laila, Basem and Suzanne) use the surname “Merza”. That was not particularly explained on the evidence, but it is evident that “Merza” is the deceased’s mother’s maiden family name: CB 49, 158.

The evidence did not disclose a great deal of detail about the relationships of the defendants, Basem and Suzanne with any partners. Perhaps that is explicable on the basis that neither of the defendants nor their siblings sought to place before the Court any details regarding their material circumstances. Much of the evidence of the defendants was addressed to more directly responding to the plaintiff’s evidence.

Nonetheless, it is possible to glean from the evidence the following brief details regarding the defendants.

In 1991, Laila married. There are three children from that marriage. The marriage ended in divorce in 2007: CB 286[9]; CB 19[15(g)]. Laila is a sales executive assistant and has at times worked in Parramatta and lived in or around Guildford or Guildford West in rental or other accommodation: CB 286[9].

Tarek is referred to at least by Laila as “Terry”: CB 291[37]. Tarek, at some point (I infer after 2002), married Reema Charmand (Reema) (sometimes referred to as “Reena” in the evidence) under Islamic law and initially they lived in a granny flat on the Bringelly property: CB 19[15(d)].

Tarek has children but not with Reema: CB 289[23].

The application for a family provision order was filed within time (on 6 August 2021): see summons at CB 1.

Apart from the plaintiff, the only eligible persons identified on the evidence (bearing in mind that the deceased’s former husband Ahmad had passed away) were the deceased’s four adult children.

On 8 September 2021, the defendants’ then solicitor John Mackey (Mr Mackey) served by post as well as by email a notice of claim relating to the plaintiff’s application on the four children: CB 11.

The parties did not provide any specific list of agreed issues in the matter.

Nonetheless, when regard is had to the outline of opening submissions, it is apparent that there is no dispute (nor could there be) that the plaintiff is an eligible applicant. Even on the defendants’ case, it was conceded that the plaintiff was at least in a de facto relationship with the deceased which was long-term.

The ultimate issues on the application were whether the deceased’s last Will made adequate and proper provision for the plaintiff, and if not, what if any order for provision ought to be made.

Mr Price submitted that the trust fund provision for the plaintiff was inadequate for his proper maintenance and advancement in life and an order for provision should be made for the plaintiff comprised of three elements being amounts in lieu of his entitlements under the last Will as follows:

Mr Ellison SC disputed that the trust fund provision for the plaintiff was inadequate. Mr Ellison SC further submitted that in the event that the Court found that the trust fund provision was not adequate, he challenged the plaintiff as to aspects of his claim for accommodation provision in the lump-sum provision. In relation to the accommodation provision, Mr Ellison SC raised the prospect that if an order were to be made a Crisp order (see below) may be a form of accommodation provision appropriately considered by the Court. Mr Ellison SC disputed the appropriateness of any DSP contingent liability provision.

I will address the particular submissions regarding whether the plaintiff was left with adequate and proper provision below.

Forensically, the contest on that question was informed by specific factual issues disclosed in the opening outline of submissions coupled with those which became apparent at the start of or during the hearing.

Broadly speaking, the factual issues include the following:

On the hearing of the application, the plaintiff read and relied upon three affidavits affirmed by him being:

On the defendants’ side the following substantive affidavits were relied upon:

There were formal affidavits read on each side. The plaintiff read an affidavit of Paul Michael McPhee (as to costs). The defendants read affidavits (as to costs and service of notices of claims) by the defendants’ initial solicitor Mr Mackey and an affidavit of costs by Graeme Heckenberg, the defendants’ subsequent solicitor. None of the solicitors were required for cross-examination.

This case is the second case I have heard recently (see Clayton v Clayton) in which the lack of evidence on certain matters and forensic decisions to not cross-examine on issues has made determination of some disputes difficult. Determination of certain historical disputes raised on the evidence may be unnecessary in any given case, even if there is some cross-examination, where they are of only of marginal significance or irrelevant to the outcome. However, in fact finding, the Court will often be assisted by cross-examination on other matters, particularly matters bearing upon any significant contribution to the estate of the deceased or any significant claim for provision of the plaintiff. Family provision proceedings quintessentially involve important choices for counsel in cross-examining. It is a matter for counsel using their professional expertise to assess what matters need to be put before the Court and in what detail: Clayton v Clayton at [81]-[108], especially at [105]-[106].

Parties, particularly in family disputes, will be assisted by the Court outlining its approach to fact-finding.

The extent of reasons in judicial cases will depend upon the circumstances of the case and the function to be served by the giving of reasons: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (Tatmar Pastoral) at 386A-B per Mahoney JA; affirmed sub nom Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155 (Privy Council).

In New South Wales, in family provision cases generally there is a duty to state reasons for judgment. Occasionally, complaint is made regarding adequacy of reasons: e.g. Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 (Diver v Neal) at [57].

However, such a duty does not exist in respect of every matter, of fact, or of law, which was or might have been raised in the proceedings. It is not the duty of the judge to decide every matter which is raised in argument. The judge may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: Tatmar Pastoral at 385E-F citing R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 at 350.

The law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis) at 271 per Mahoney JA; Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (Yates Property v Darling Harbour) at 160D per Kirby P.

The weight which a judge gives to a particular fact may be affected by the judge’s experience and, in particular, his experience of the significance of that fact in the order of things and “general human experience”. Reasons may partake as much of intuition based on experience as on formal and deductive reasoning: Soulemezis at 274A-B per Mahoney JA citing Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25 at 173 per Knox CJ and Dixon J and Martin v Osborne (1936) 55 CLR 367; [1936] HCA 23 at 375 per Dixon J, Latham CJ agreeing.

Particular considerations arise in family provision claims, in light of the evaluative nature of the statutory task (see below).

First, the Court scrutinises very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff’s case with suspicion and as prima facie fraudulent, but it scrutinises the evidence very carefully to see whether it is true or untrue: Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 at 548-549 per Isaacs J.

Secondly, in many cases there may be little point in attempting to make concluded findings upon or adjudicate upon the rights and wrongs of historical family disputes whether involving estrangement or otherwise. The reasons for that will vary but often include the fact that a firm conclusion about those matters may be of only marginal significance in the case. The distant age of the events, the frailty of human memory, the unavailability of the deceased’s version (unless documented), and the fact that the deponents’ views about one another and the past will often be fixed and strongly held, may operate to make it difficult for a judicial fact finder to be confident in whatever conclusions were reached on the parties’ competing versions: e.g. Massingham v Massingham [1996] NSWCA 343 at 6 per Priestley JA (Mahoney P and Meagher JA agreeing); Webb v Webb; Estate of W E Webb [1999] NSWSC 343 at [40] per Hamilton J citing Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 (Pontifical Society v Scales) at 20 per Dixon CJ (McTiernan J agreeing).

Moreover, the Court in family provision cases might not find it necessary to resolve every factual matter raised and disputed by the parties in order to determine the plaintiff’s claim in accordance with the applicable legal principles referred to below, even if significant time is spent on disputed events in cross-examination, where they are irrelevant to the determination of the plaintiff’s family provision claim: Spiteri v Vassallo [2020] NSWSC 890 (Spiteri v Vassallo) at [41] per Williams J.

Whilst conduct and family relationships may, in some cases, have relevance to the outcome in family provision cases the Court disapproves of attempts by litigants in such cases to blacken each other’s character. Allegations and counter-allegations about incidents that occurred years before the deceased’s death are, generally, unlikely to advance either party’s case, and when it is sought to support them by lengthy affidavits in chief, which prompt equally lengthy affidavits in reply, they may merely deepen rifts in the family, dishonour the memory of the deceased and unnecessarily prolong the litigation: Graham v Graham [2011] NSWSC 504 at [198] per Hallen AsJ (as his Honour then was) citing Re Meier (deceased) [1976] 1 NZLR 257 at 258 per Wild CJ, which was cited with approval in Auckland City Mission v Brown [2002] 2 NZLR 650 at [15] per Richardson P for the Court.

Thirdly, it is not necessary for a judge who is exercising a discretionary judgment or evaluative decision, to detail each factor which he or she has found to be relevant or irrelevant, or to itemize in an order for provision each of the factual matters to which the judge has had regard: cf Tatmar Pastoral at 386D; Yates Property v Darling Harbour at 161D per Kirby P, at 171G per Mahoney JA and at 182G-183C per Handley JA (a valuation appeal from the finding of market value).

The plaintiff was the only deponent cross-examined.

In giving evidence, a little unusually for much of his evidence, his head was bowed down and he did not make, in my estimation, particular eye contact with Mr Ellison SC who was cross-examining him. I did wonder whether this might be due to the fact that the plaintiff has difficulty hearing and raised this with him. However, he indicated he had no trouble hearing: T 30.40-31.1. Nonetheless, in my estimation, the plaintiff gave his evidence in a straightforward way.

He frequently responded in a direct and simple way to questions: T 32.15-33.

There were occasions on which he readily made concessions or responded frankly, such as in relation to expenditure of money (T 30.36-38) and aspects of his health (T 37.23-43). On other occasions, he held to the version contained in his affidavit evidence, such as in relation to questions about funds he had available to him (T 31.20-22) and his accommodation preferences: T 31.24-32.33, 35.46-36.14.

He was not confronted with any significant prior inconsistent statements. Nonetheless, in relation to his requirements for accommodation, which I will refer to below, he was challenged in cross-examination regarding his reasons for a change in his evidence as between his first affidavit identifying properties with 2 to 3 bedrooms as being appropriate and his final affidavit identifying properties in excess of 3 bedrooms as being desired or appropriate.

On the whole, other than in several respects I mention below, I accept the plaintiff’s evidence.

There were a number of material matters in particular relating to the plaintiff’s claims of contributions to the acquisition, maintenance and improvement of the deceased’s property and other household and family contributions in which there were disputes in varying degrees as between the plaintiff’s affidavit evidence and that of Tarek and Laila. I have addressed these specifically below.

There were also a number of minor matters in respect of which there was dispute as between the plaintiff and Tarek and or Laila. This includes matters raised in solicitor correspondence post the deceased’s death. In respect of some of these it is not necessary to make any finding.

The evidence identifies at least three Wills made by the deceased, being the last Will and two prior Wills made respectively 12 November 2010 (2010 Will) and on 4 April 2017 (2017 Will): CB 34[97].

The 2010 Will was prepared by solicitors at Campbelltown. In the 2010 Will, the deceased appointed her brother Ramez (aka Gasan, often spelt “Gassan”) and her four children to be jointly and severally her executors: CB 208.

The deceased gave the plaintiff a right of use, occupation and enjoyment of the property occupied by her at the time of her death together with household furniture, goods, chattels and effects on terms that he pay all rates, taxes and outgoings in respect of the property and keep the property and such personalty in good and substantial repair and insured. The use was for the plaintiff’s lifetime.

Upon the plaintiff’s death, there was a direction for the estate be converted into money with the proceeds divided as to 25% to each of the four children, with provision for a gift over: CB 208-209.

The deceased’s 2017 Will and last Will were prepared by Mr Mackey.

By the 2017 Will, the deceased appointed the defendants or the survivor of them as executors: CB 212.

The deceased made specific gifts as follows. The deceased:

The 2017 Will made provision for the plaintiff in terms of what I have called the trust fund provision: CB 213.

Lastly, the deceased left the residue of her estate upon the plaintiff’s death to be divided equally between the four children, with a provision for a gift over in the event that any of them did not survive the deceased: CB 213.

The deceased by her last Will appointed the defendants as executors: CB 43.

The last Will bore some similarity to the 2017 Will.

The provisions regarding the gifting to Tarek of the Minto property and the forgiveness of loans to Suzanne and Laila were maintained. The last Will did not include a gift of the Second Glen Alpine property (6 Belltrees Close) to Basem, as by that stage it had been sold.

The gift to Laila of $250,000 was maintained. The gifts to Tarek and Basem of $250,000 were each increased to a sum of $500,000 each.

The deceased gave a reason for not leaving Suzanne a legacy sum as being the fact that she had helped Suzanne pay off her house at Currans Hill completely and as such Suzanne had been adequately provided for noting that the legacies to the other children were (from the deceased’s perspective) a way of ensuring that they received a similar benefit: CB 44.

The trust fund provision for the plaintiff and gift of residue to the four children as specified in the 2017 Will were maintained in the last Will: CB 43-44.

Pursuant to a pre-trial direction, the parties prepared an agreed schedule of assets, liabilities, costs and expenses. The schedule was tended and became Exhibit JP-1.

In summary, the details are as follows.

The schedule discloses the following assets as at the date of death (the properties are referred to according to the description afforded to them later on in these reasons):

The schedule disclosed no liabilities at the date of the deceased’s death.

The schedule discloses the following:

The schedule disclosed that a number of liabilities had been paid out of the deceased’s estate or personally by the defendants in anticipation of reimbursement. The liabilities totalled $182,554.06 and included funeral and wake expenses, legal fees of the defendants, mediators’ fees and other fees including rates and valuation expenses. The schedule indicates that Tarek had paid $29,405.13 for funeral expenses, rates and insurances for the Minto property and a valuation report. Laila had paid the wake expenses ($5,500).

The schedule indicated that expenses associated with a future sale of the Bringelly property including estate agent’s marketing services, commission and conveyancing fees were likely to be the order of $204,102.50 to $254,850. By far the largest component related to the agent’s commission. The schedule indicates that there was no capital gains tax likely to be applicable to the sale of the Bringelly property.

Costs and expenses associated with any sale of the Sanctuary Point property were estimated to total in the order of $37,262 including marketing fees commission, conveyancing fees and capital gains tax.

Costs and expenses associated with any sale of the Run-O-Waters property were estimated to be in the order of $68,842 including marketing services, commission, conveyancer’s fees and capital gains tax. By far the largest component of that was the estimate for capital gains tax.

The estimated costs of each party calculated on the ordinary and on the indemnity basis inclusive of GST are as follows:

The plaintiff has not paid any amount on account of his costs and disbursements.

The defendants have paid $88,046 on account of costs and disbursements.

The Bringelly property is described in a number of places within the Court Book: e.g. CB 58. The property extends to 2.056 ha: CB 468. It is described as having on it a single level dwelling appearing to date from around the 1980s encompassing an attached self-contained granny flat to the rear of the garage. The main accommodation includes an entry foyer, a lounge room, a sitting room, a powder room, a rumpus room, a kitchen, a family/dining area, a study (fifth bedroom), four bedrooms, an ensuite, a main bathroom and a laundry: CB 475-476.

The granny flat is described as including a porch area, an entry, a bedroom, living/dining room, a kitchen and a bathroom: CB 476-477.

The property is located in the Aerotropolis Core within what is described as the broader Western Sydney Aerotropolis Precinct: CB 463. It is clear that the value of the property increased significantly after the deceased’s death. The inventory of property recorded the value of the Bringelly property at $4.15 million as at the date of the deceased’s death: CB 47, 281.

In the plaintiff’s first affidavit, he indicated that there was a strong likelihood that at least a portion of the Bringelly property would be acquired by the government as part of the development of the Western Sydney Airport: CB 24[48]. He stated that he understood that Lend Lease had already obtained an easement over one corner of the property: CB 24[48].

In the initial administrator’s affidavit, Laila disclosed as part of the assets of the deceased’s estate a figure of $45,000 described as “Acciona Compensation Settlement Sum”: CB 273[6], 283. Laila later clarified this in a reply affidavit indicating that after the deceased’s death, Tarek and she had negotiated a settlement with Acciona representing Transport for NSW and Sydney Water for the sum of $45,000 not for any acquisition but for certain works undertaken, damage and remediation issues. She indicated that at that stage (5 October 2021), no monies had yet been received and it was disclosed in the administrator’s affidavit as being essentially a future payment - it appears because Laila thought at the time that the negotiations may have come to nought and the estate may have been entitled to receive nothing: CB 290[31].

On 30 March 2021, the plaintiff obtained valuation of the property by Lynette Savage, a certified practising valuer, in the sum of $5 million: CB 58.

The defendants provided a number of valuations prepared by Kohler Bird valuers.

As at 27 January 2022, according to a valuation prepared by Kohler Bird valuers, the property was valued at $10.26 million.

The report records, in part, that the announcement and confirmation of Badgerys Creek in 2014 as the site for Sydney’s proposed second airport resulted in a significant increase in interest within both the immediate and broader surrounding suburbs: CB 482.

The report records certain planning events from late 2020 to the time of the report: CB 484-485. At some point, the property zoning appears to have changed from open space network to a zoning of MU – Mixed Use: CB 486.

On 2 May 2022, Kohler Bird updated its valuation report dated 27 January 2022 and provided an increased estimate of valuation being $14.4 million: CB 517-536.

On 4 May 2023, Kohler Bird provided an updated valuation as at 28 April 2023 valuing the property at $11.825 million “[s]ubject to a ‘Typical Quick Sale Period’” and gave an estimate of $14.9 million “[s]ubject to a ‘Market Typical Extended Settlement Contract’”: CB 359, 378, 380.

An extended settlement period was indicated as being 2 to 3 years on the one hand and a quick sale with a “usual settlement period” indicated as being a period of 3 to 6 months on the other: CB 354[9], 366.

The parties, in their presentation of the case, recognised that there had been a degree of a windfall increase in the value of the property.

The reasons for the significant increase in the estimated value for the Bringelly property were not the subject of detailed evidence or submissions.

Except as otherwise qualified, I find the following facts as established.

Prior to entering his relationship with the deceased, the plaintiff worked as a labourer.

In or about 1995, when the plaintiff met the deceased, she operated a tobacconist shop at Rosemeadow Marketplace (Rosemeadow shop): CB 20[20].

At the time of the plaintiff’s marriage to the deceased, the deceased had already accumulated property. She owned a property at Bradbury which was seemingly co-owned with Ahmad (Bradbury property).

No later than about 18 March 1997, the deceased purchased the property at Glen Alpine in the joint names of herself and Tarek for $250,000: CB 20[21(b)] (as noted above there is inconsistent and unresolved evidence suggesting that the deceased owned this property as at July 1996).

In or about May 1997, the plaintiff was injured while working for Nepean Engineering. He states he received the Newstart Allowance whilst he was unemployed and saved approximately $65,000 in cash which he did not keep in a bank: CB 20[19].

On 8 January 1998, the Bradbury property was sold but by Advance Bank Australia Ltd as mortgagee for $130,000: CB 20[21(a)].

On or about 2 July 1998, the Glen Alpine property was transferred from joint ownership to the sole ownership of the deceased: CB 20[21(b)].

In or about November 1998, the deceased purchased the property at Rosemeadow for $100,000 (Rosemeadow property): CB 26[59(a)].

On or about 27 April 1999, the Run-O-Waters property was purchased. I address this in more detail below.

In November 1999, the deceased purchased a property at St Helens Park for a sum of $119,000 (St Helens Park property): CB 26[59(b)]. The property was purchased for Tarek: CB 18[15(b)], 312[6]. Tarek says he paid the deposit from his own savings and after he and his then girlfriend moved in, he renovated the property at his own expense. He paid mortgage amounts, council and water rates. Tarek says that the deceased held the property in her name because she did not “want any girlfriend of yours taking what is yours”: CB 312[6].

In early October 2000, the deceased purchased a property at Raby for $190,000 (Raby property): CB 26[59(c)].

In or about late 2000 or early 2001, a year or so after the purchase, Tarek and his girlfriend broke up. He moved back to live with the deceased and rented the St Helens Park property out. The plaintiff states that Tarek moved into the Bringelly property with him and the deceased: CB 19[15(c)].

In or about July 2002, the deceased purchased the Bringelly property. The plaintiff and the deceased moved into the house on the property and continued to live there until her death. Various family members lived with them at some stage. Laila lived with them for some time although the plaintiff cannot remember for how long.

In early September 2003, the Raby property was sold for $318,000: CB 26[59(c)].

In or about September 2003, Tarek states that he and Reema needed more privacy, and he located a property at the Narellan Vale (the Narellan Vale property) to live in: CB 313[8]; 19[15(e)]. The price was $430,000: CB 26[59(d)]. Tarek states he paid for the deposit and stamp duty from his own savings. A mortgage for $400,000 was taken out by the deceased. Tarek says the property was put it in the deceased’s name as he could not show sufficient income as he had been self-employed and taken time off over the prior 12 months to renovate the Bringelly property. Tarek says he paid all the mortgage repayments and outgoings: CB 313[8]. It appears the marriage between Tarek and Reema did not last long. The plaintiff says they left the Narellan Vale property which was then rented out for some period of time: CB 19[15(f)].

On or about 30 September 2003, the Glen Alpine property was sold for $460,000: CB 20[21(b)].

From 2005 until approximately 2010, the plaintiff worked in the Rosemeadow shop. There is some dispute regarding the extent of his involvement. I refer to this below.

In or about December 2006, the Rosemeadow property was sold for $242,000: CB 26[59(a)].

On 23 October 2007, the deceased sold the Narellan Vale property for $420,000: CB 19[15(f)], 26[59(d)].

In October 2007, the deceased purchased an industrial unit at Minto for $202,500 (Minto property): CB 25[49].

In early July 2009, the St Helens property was sold for $255,000: CB 26[59(b)].

In June 2009, the deceased purchased a property at Guildford for $380,000 in the name of Basem (Guildford property): CB 19[15(h)], 27[59(g)].

The plaintiff asserts that it was purchased for Laila to live in but purchased in the name of Basem out of concern that if the property were in Laila’s name it might become involved in a property settlement between Laila and her ex (or soon-to-be-ex) husband: CB 19[15(h)]. Laila did not dispute the plaintiff’s evidence regarding this.

In early March 2010, the deceased purchased a property at Englorie Park for $550,000 (Englorie Park property): CB 26[59(e)].

In or about 2010, the deceased sold the business conducted at the Rosemeadow shop.

It is clear that after 2010, there was some hiatus, and the deceased took a break from being involved in any tobacco business.

In 2013, the plaintiff indicates that another tobacco shop at Liverpool (Liverpool shop) was opened with the plaintiff and the deceased operating that business for about three years. There is some little dispute regarding this which I refer to below.

On or about 5 November 2013, the Guildford property was transferred to Laila for a consideration of $50,000: CB 27[59(g)], 291[34(b)]. At some stage, Basem moved in to live with the deceased and the plaintiff in the Bringelly property.

In or about 2013, Basem married and moved out of the Bringelly property: CB 19[15(i)].

At some point, Suzanne moved in to live with the deceased and the plaintiff at the Bringelly property. She remained living at the property and continues to live in the property currently: CB 19[15(j)].

In early July 2016, the Englorie Park property was sold for $865,000: CB 26[59(e)].

In or about 2017, the plaintiff states that the business associated with the Liverpool shop was sold for approximately $150,000 and that he and the deceased then retired: CB 23[37], 325[35].

In mid-March 2017, Suzanne purchased a property at Currans Hill with a loan from the deceased in the sum of $710,200 (Currans Hill property): CB 27[60], 138, 291[35].

On 13 October 2017, Mr Mackey wrote to the plaintiff and the deceased at the Bringelly property providing the deceased with a copy of her (2017) Will and certified copies of powers of attorney and “guardianships” for each of them. The letter noted that the original documents of those provided were held by the firm in safe custody: CB 216.

At some point, which is incorrectly identified in the evidence as being November 2020, the deceased purchased the Second Glen Alpine property: CB 26[59(f)]. The 2017 Will made in April 2017 refers to the Second Glen Alpine property and accordingly I infer it was purchased at least prior to 4 April 2017.

On or about 23 March 2018, the Second Glen Alpine property was sold for $810,000: CB 27[59(f)].

In mid-May 2018, the deceased purchased a property at Sanctuary Point for $545,000 (Sanctuary Point property): CB 25[53]. The plaintiff states, and this was not relevantly disputed, that the proceeds of the purchase price came from the sale of another property the deceased had purchased, he thinks being the Englorie Park property: CB 25[53]. The Sanctuary Point property is leased to a tenant returning a weekly rental of $350.00: CB 25[54].

In October 2018, the plaintiff states he attended Mr Mackey’s office twice with the deceased and Suzanne to discuss the deceased’s Will. He cannot recall the date of the first visit. The second visit was on 16 October 2018: CB 34[99].

The plaintiff states that on the second visit, the following discussions took place (CB 34[100]-[104]):

The plaintiff asserts that he thought that the deceased was leaving him half the estate: CB 34[105].

In about late 2019 or February 2020, when the deceased was diagnosed with cancer, she required increasing assistance with managing her daily life. The plaintiff indicates that Suzanne became the deceased’s primary carer (seemingly from this point) until her death with assistance from the plaintiff: CB 24[42]-[43]. During the last few months of the deceased’s life, Suzanne quit her own work to care for the deceased: CB 28[67].

Tarek acknowledged that the plaintiff and Suzanne provided assistance although indicated that the rest of the family also provided assistance: CB 315[21].

Laila, like Tarek, also indicates that other family members helped. She indicates that she also took time off work and lived in the Bringelly home to assist caring for the deceased: CB 291[37].

At some stage after 10 August 2020, the plaintiff ceased to be able to pay living expenses from the deceased’s accounts as the accounts were frozen: CB 27[61].

Seemingly, some arrangement was made for the plaintiff at the discretion of the defendants to receive from the tenant of the Sanctuary Point property the rental of $350 per week directly rather than that being paid to the estate: CB 27[62]; 316[26].

On 27 November 2020, the plaintiff started to receive those rental funds: CB 27[62].

Between 18 December 2020 and early February 2021, there was correspondence between the parties’ solicitors regarding the plaintiff’s access to the bank accounts: CB 27[63]-28[66]; CB 98-101.

The plaintiff adduced evidence of certain communications with the defendants or other family members and as between the solicitors that post-dated mid-December 2020: CB 35-38[112]-[128].

The plaintiff indicates that he felt intimidated by conduct of Tarek in a telephone call on 16 December 2020 and by an attendance of the defendants (with others) at the Bringelly property: CB 35-36[112]-[117].

Tarek disputes the conduct attributed to him in the telephone call on 16 December 2020 and further disputes any intention to intimidate the plaintiff: CB 317[31]-[36]. Laila, for her part, disputes any intention to intimidate the plaintiff on the occasion on 19 December 2020: CB 293[48]-[50].

There was no cross-examination on these issues raised by the plaintiff. Neither counsel otherwise addressed them. In that context, I do not propose to make any findings regarding them.

The plaintiff, in describing his relationship with the deceased, indicated that his life with the deceased was wonderful: CB 324[34].

The plaintiff states that at the time he began living with the deceased he had a bank account of his own: CB 21[23(b)].

However, also, from that time, the plaintiff states the deceased authorised him to operate bank accounts in the deceased’s name, and they were essentially operated as “joint accounts” and that they did not open any new joint accounts: CB 21[23(a)], 27[61].

Laila, whilst believing that they were not joint accounts, nonetheless confirmed that the plaintiff operated the accounts with the deceased’s knowledge and permission: CB 291[36].

Laila says that the deceased was always doublechecking the plaintiff’s transactions on her accounts: CB 287[13].

Laila indicates that in early January or February 1998, the deceased stated:

The plaintiff set out details of his financial circumstances in his first affidavit: CB 28-29[68]-[78].

He disclosed assets being:

Those assets and their valuation had not materially changed by the time of the hearing.

The plaintiff has no superannuation: CB 29[78].

As at the time of the plaintiff’s first affidavit, he received an Age Pension providing him with net monthly income of $2,036 (i.e. in the order of $24,432 per annum). He also received an Age Pension from the Chilean government of approximately $285 per month ($3,420 per annum).

In the plaintiff’s final affidavit, he indicated that there had been no material changes to the amount of the aged pension which he receives both from the Australian government and the Chilean government: 395[2]-[3]. He indicated that he had not acquired or disposed of any significant assets since his (second) affidavit: CB 395[4].

In his final affidavit, the plaintiff indicated that his current annual income totalled AU$31,925.20, being comprised of the Australian aged single pension ($27,664) and the Chilean pension (converted to AU$4261.20): CB 397[10].

The plaintiff stated in his first affidavit that he suffered from various medical issues which he identified as being: neck and back pain, arthritis in his knees and left ankle, periods of chest pain, periods of dizziness, hypertension, high cholesterol, depression (causing issues with his memory), some hearing loss and prostate difficulties: CB 31-32[89]. He states that the depression he has suffered has manifested itself in headaches and affected his eyesight which is blurred: CB 32[90].

He made reference to having ongoing fear as a result of being a victim of a violent crime whilst driving between the Rosemeadow shop and his home: CB 32[89(j)]. However, the details of that were not elaborated.

In his second affidavit, the plaintiff outlined over two pages various conditions from which he said he suffered: CB 326-327. He referred to testing that he had undergone in the last couple of years and specialists that he had been referred to: CB 328. He also referred to his family history of medical conditions: CB 329[44]. The details he provided in this regard go beyond the conditions identified by his medical practitioner in a report dated 19 March 2021: CB 333. In that report, the conditions referred to were benign prostatic hyperplasia, hand and right hip osteoarthritis, depression, grade 1 anterolisthesis and lumbar disc bulge. In the plaintiff’s final affidavit, he asserted he continued to suffer from the medical conditions set out in his previous affidavits although indicated that he had had a prostate operation on 29 July 2022, and as a result of suffering an infection was scheduled for an ultrasound blood test in late-May 2023 and is due to see the specialist on 6 June 2023 to clarify whether he needs any further operation: CB 397[12]-[14].

In New South Wales, the three principal forms of family provision legislation since 1916 (Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) (TFM Act); the Family Provision Act 1982 (NSW) (FP Act) and the Succession Act) have broadly followed a similar structure. Namely:

The scheme under the Ch 3 Succession Act, as with those under earlier Acts, allows flexibility for the judicial function to be exercised over time as society evolves and community standards change: e.g. Gorton v Parks at 10G-11A; Ikonomou v Panagopoulos [2017] NSWSC 1805 (Ikonomou) at [93] per Parker J.

The exercise of power to make a family provision order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements of the judicial task in s 59(1)&(2) are in a sense described in s 60(1)(b) as being (a) whether to make an order and (b) the nature of any such order. Section 60(2) provides a detailed body of considerations for the task in s 59: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 (Andrew v Andrew) at [6] per Allsop P.

The Court may make a family provision order if it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made: s 59(1)(c) Succession Act.

The Court:

The adjective “adequate” derives its meaning in context. The adjective generally conveys the meaning of something being equal to or fully sufficient to the particular requirement or occasion: Macquarie Dictionary, online ed. Within s 59(1)(c), the adjective “adequate” qualifies the noun “provision”.

The adjective “proper” derives its meaning in context. Generally, the word conveys the notion of something being fit or suitable or appropriate to the particular purpose or circumstances being addressed: Macquarie Dictionary, online ed. Within s 59(1)(c), the adjective “proper” qualifies the expression “maintenance, education or advancement in life” (emphasis added).

“Adequacy” is concerned with the form and or quantum of provision, whereas what is “proper” is concerned with the standard of the maintenance, education and advancement in life of the applicant for relief: Verzar v Verzar [2012] NSWSC 1380 (Verzar v Verzar) at [127] per Lindsay J.

The composite expression “maintenance, education or advancement in life” is a way of describing types of provision. An order for provision operates as a codicil to a Will (or a Will in the case of intestacy) unless the Court orders otherwise: s 72(1) Succession Act.

The statutory language which speaks to the type of order which the Court may make is in very broad plentiful terms. Thus, a family provision order may require the provision to be made in various ways including various forms of payment, by application of specified existing or future property, by way of an absolute interest, or a limited interest only, in property, by way of property set aside as a class fund for the benefit of two or more persons, or indeed in any other manner the Court thinks fit: s 65(2) Succession Act.

The extraordinary breadth of the form and type of provision is seen in the statutory power entrusted to the Court to make consequential and ancillary orders in a multitude of ways including in any other matter the Court thinks necessary: s 66(l) Succession Act.

For that reason, it is wrong to assume that orders addressing an applicant’s proper “maintenance, education or advancement in life” are limited to only particular purposes or types of provision.

The powers in ss 65 and 66 are reflective of the way that a deceased may provide for a beneficiary with the deceased’s financial resources whether by income, capital or otherwise.

Once one understands the above, that assists in understanding the generalised way in which the Court in dealing with family provision claims refers to “maintenance, education or advancement in life”. Invariably, the Court describes these terms in ways which give a generalised indication of their nature but allow flexibility for types of provision to be filled by content from the facts of each given case and to adapt to changes in society and how life is generally lived over time.

For example, one sees in the caselaw descriptions indicating that:

What is clear is that there is an interaction between the expressions “adequate provision” and “proper maintenance, education and advancement in life” in s 59(1)(c). Thus, one must have some conception of what is proper maintenance, education and advancement in life for an applicant, in order to be able to assess whether the provision made, if any, is adequate: Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson) at [86] per White JA (McColl JA at [1] and Payne JA at [2] agreeing).

What is “proper” is not limited by some fixed concept or defined content. It requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances: ss 59(1)(c), 60(2); Sgro v Thompson at [86] per White JA (McColl JA at [1] and Payne JA at [2] agreeing).

Whilst what is “proper” provision is largely informed by the facts of each given case, the Court is left to form opinions as to what is “proper” on the basis of its own general knowledge and experience of current social conditions and standards: Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 (Goodman v Windeyer) at 502 per Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing). In each case, the Court applies a standard appropriate to all the circumstances of the case: Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104; (2018) 17 ASTLR 64 (Estate of Grundy) at [95] per Lindsay J; Steinmetz v Shannon at [41]-[42] per White JA, at [132] per Brereton JA.

Lindsay J described this element of the Court being left to form opinions on the basis of its own general knowledge and experience of current social conditions and standards as “making due allowance for current social conditions and standards”: Estate of Grundy at [97].

The fact that there is an element of the Court making an assessment of what is “proper” provision upon the basis of its own general knowledge and experience of current social conditions and standards is undoubted: Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 211 per Mason CJ, Deane and McHugh JJ; Goodman v Windeyer at 502 per Gibbs J. This is acknowledged by Gummow and Hayne JJ in their dissent in Vigolo v Bostin at [74]-[75].

The current position is that the High Court has recognised that in the assessment of the Court of what is “proper” in any given case a judge will consider what a judicious person would do in the circumstances of each given case, by reference to contemporary community standards or current social conditions and standards described as “moral duty” or “moral obligation”: Vigolo v Bostin at [2]-[25] per Gleeson CJ, and at [109]-[121] per Callinan and Heydon JJ. This has been acknowledged by White JA in Steinmetz v Shannon at [40].

How a Court makes due allowance for current social conditions and standards is somewhat elusive and has prompted discussion both in caselaw and extrajudicially as to concepts of moral duty and community standards and their application to any given case.

Conventionally, making due allowance for current social conditions and standards is something that is left to the knowledge and experience of each individual judge that determines family provision cases. It is not something that is susceptible to some form of external proof: Steinmetz v Shannon at [40]-[46] and especially at [42] per White JA; Gorton v Parks at 11A-C per Bryson J (both his Honour and White JA in Steinmetz v Shannon) referring to comments of Mahoney JA (dissenting) in Kearns v Ellis (Court of Appeal (NSW), Glass, Mahoney and McHugh JJA, 5 December 1984, unrep) at 7-8.

Thus, what is proper will vary in each case.

This has been the essence of the approach in each of the forms of family provision legislation enacted in New South Wales: Pontifical Society v Scales at 19 per Dixon CJ (McTiernan J agreeing), Goodman v Windeyer at 502 per Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing); Re Fulop deceased (1987) 8 NSWLR 679 at 680 per McLelland J (as his Honour then was).

In a practical sense, under the Succession Act the issues are (a) whether a family provision order should be made, and (b) the nature of any such order: Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113 at [17] per Basten JA (Leeming JA agreeing).

The size or amount of any order for provision is informed by the expressions “adequate” and “proper”. Moreover, those expressions also may inform the nature and form of a family provision order.

The evaluative task embodies human values and norms of conduct and assessment of what is proper cannot be constrained by or reduced to quantitative analysis: cf Andrew v Andrew per Allsop P at [1]. As Lindsay J observed in Verzar v Verzar at [152]:

Mr Price made submissions regarding the approach to be taken to determining family provision claims in respect of large estates. He cited observations of Brereton JA and White JA in Steinmetz v Shannon respectively at [100]-[105] and [47]-[48], [51].

The same approach to family provision proceedings in addressing the questions outlined above in respect of whether adequate provision has been left for an applicant, and, if not, the nature of any order applies to all family provision proceedings. The application of the approach and the evaluative assessment depends upon the facts of each particular case.

The statutory provisions do not suggest any different approach specifically because an estate happens to be large.

In large estate cases, the limited scale of resources available in most estates and the competition for satisfaction of financial needs out of such limited resources cease in fact, to be limiting considerations in the Court’s overall assessment of what is adequate provision for the proper maintenance and advancement in life of the applicant.

Thus, it has been said that the Court is free to make a more liberal assessment of what is proper provision in the sense that competition for limited resources is much reduced or eliminated and unqualified by competing claims.

In Anasson v Phillips, Young J (as his Honour then was) expressed this concept in the following terms (at 20-21):

In Lloyd-Williams v Mayfield, Bryson JA at [32] expressed the concept in following terms:

In Estate of Grundy, Lindsay J at [114] expressed the same concept in these terms:

The inquiry into adequacy is not limited to considering whether the plaintiff has enough to survive or to live comfortably without provision (or further provision, as the case may be) from the deceased’s estate: Spiteri v Vassallo at [19] per Williams J.

What is adequate in any given case may transcend the necessities of life in a sense of basic requirements for food, clothing and shelter or what is necessary for subsistence. It may extend to consideration of matters that for example make life more comfortable or to advance a person’s position in life.

This was the point of the discussion by Bryson J (as his Honour then was) in Gorton v Parks in particular addressing remarks to comments in caselaw limiting notions of the need of adult children for maintenance and support by reference to views that moral obligations of parents can be limited or possibly escaped: at 6C-11F. The point was emphasised by Brereton JA in Steinmetz v Shannon, namely, that in assessing what is proper provision to the extent that “needs” are relevant, no narrow view of that notion limited to the necessities or essentials of life is to be taken: at [132].

The fact that the value of an estate might significantly increase on the one hand or significantly decrease on the other between the time of the deceased’s death and the time that the Court hears the application is simply one of the exigencies of life.

There is no special principle in family provision proceedings that a “windfall” increase in the value of an estate must necessarily be considered in a particular way.

The Court’s approach to the matter is dictated by the terms of the statutory provisions which provide that the Court’s satisfaction as to whether or not adequate provision has been made for the proper maintenance or advancement in life of an applicant is a satisfaction as at the time that the Court is considering the application having regard to facts known to the Court at the time that the order is made: s 59(1)(c), (2) Succession Act (emphasis added).

For practical purposes, that timing occurs in the period where the Court hears the matter and delivers judgment. Often, that period will not be of any material length.

There may of course in some cases be particular reasons as to why an estate has substantially increased or decreased in value as between a date of death and the time of a hearing. In some circumstances, that may be due to factors arising from the input or control of one or more of the parties. In other circumstances, it may be by reason of circumstances entirely out of the parties’ hands.

A substantial increase in the value of an estate, whether properly described as a “windfall” or not, is not particularly approached by reference to any rule of thumb, but, rather, is simply another fact the Court has regard to in making its assessment. Mr Price accepted that that was the case: T 13.12-16. I did not understand Mr Ellison SC to argue otherwise.

The law recognises that de jure (legal) marriage, as distinct from de facto marriage, has particular consequences.

In Australia, legal marriage is a union of two people entered into to the exclusion of all others voluntarily for life: s 5(1) Marriage Act 1961 (Cth) (Marriage Act). Moreover, the union is one which the law recognises is important to preserve and protect: s 43 Family Law Act 1975 (Cth) (FLA). The structure of marriage and the family is intended to sustain responsibility and obligation: Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 at [24] per Gleeson CJ.

Legal marriage involves a formal and binding commitment by the couple to mutual support of each other and the legal relationship, its status and legal obligations attending to it, cannot be shed simply at will. Whatever spouses may in fact do as between themselves, and leaving aside exceptional cases where there is an issue regarding the actual validity of the marriage itself, ordinarily, the marriage may only be terminated by demonstrating to the Court’s satisfaction that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order: s 48 FLA; see also Granatino v Radmacher [2011] 1 AC 534 at [132] per Lady Hale JSC (dissenting).

It has been said that the bond of matrimony, prima facie, gives rise to a testamentary obligation and it cannot be assumed that that obligation comes to an end on the parties separating without their being divorced, at least where there has been no disentitling conduct by the claimant: Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437 at [48]-[50] per White J (as his Honour then was) citing Re Clissold (deceased) [1970] 2 NSWR 619 at 621-622 per Street J (as his Honour then was); Re Mercer (deceased) [1977] 1 NZLR 469 at 672-673 per White J, cited with approval in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [118] per Ipp JA, Tobias and Basten JJA at [125],[126] agreeing.

A formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim: Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 (Marshall v Carruthers) at [63] per Hodgson JA, Young CJ in Eq at [71] and Palmer J at [78] agreeing. This has been acknowledged by judges within the Equity Division: see Anderson v Hill [2017] NSWSC 1149 at [139(c)] per Hallen J (and to similar effect: Gargano v Coves [2018] NSWSC 985 at [160(c)]; Sarant v Sarant [2020] NSWSC 1686 (Sarant v Sarant) at [241(f)]; Clarke v Clarke [2022] NSWSC 1721 at [136(d)]); Alvarez v Matthews [2021] NSWSC 1551 at [82] per Parker J.

However, it is one of many factors to consider in each case involving a surviving spouse. Hodgson JA stated that the strength of a claim of a surviving partner varies with the circumstances: Marshall v Carruthers at [63]. Once eligibility has been established, the Court’s determination of the claim involves a fact-sensitive exercise analysing the nature of the particular relationship between a plaintiff and the deceased: Flanagan v Fisher [2021] NSWSC 598 at [11(5)] per Kunc J (a claim by an adult child custody of which had been given to the deceased and his former wife).

Historically, the approach to widower’s claims has been described by de Groot & Nickel in the following terms (191 [4.24]) (footnotes omitted):

Whatever statements have been made in times past which reflect differing approaches to the type and quantum of provision which may be appropriate as between widows and widowers (e.g. In re Sylvester; Sylvester v Public Trustee [1941] Ch 87 at 89 per Farwell J), the approach to any family provision claim is dictated by the statutory test in which the Court must base its decision on the circumstances of the case rather than on preconceived rules or assumptions: Ikonomou at [90]-[94] per Parker J.

This is how the comments in Marshall v Carruthers at [63]-[65] per Hodgson JA, at [71]-[75] per Young CJ in Eq and at [78] per Palmer J, and Bladwell v Davis [2004] NSWCA 170 (Bladwell v Davis) at [12]-[19] per Bryson JA, Ipp JA at [1], and Stein AJA at [24] agreeing, have been understood: Ikonomou at [93] per Parker J.

de Groot & Nickel indicate (at 191 [4.24]) that “[t]he modern view is that the Court looks at the need and moral claim of the applicant widower, competing claims and other relevant circumstances and pays no regard to the gender of the applicant or the fact that he is a widower”.

In any given case, economic disadvantages and sacrifices made by a surviving spouse for the deceased may well be material considerations, to be considered along with other material considerations: Marshall v Carruthers at [63]-[65] per Hodgson JA, at [71]-[75] per Young CJ in Eq and at [78] per Palmer J; Ikonomou at [93] per Parker J.

In some cases, the effect of economic disadvantage, arising from a surviving spouse being permanently unable to increase his or her income, and the fact that he or she is never likely to be better off financially, while other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, may have the practical consequence of leading a judge to make a substantial award of provision to the surviving spouse applicant: Bladwell v Davis at [1]-[2] per Ipp JA, Stein AJA at [24] agreeing. However, that will not be because of a predisposition to primacy, but, rather, because of the principled application of the statutory test in light of all the particular circumstances of the case: e.g. Schneider v Kemeny; Kemeny v Schneider [2021] NSWSC 524 at [12] per Rees J.

In relation to provision appropriate for a spouse, Mr Price made reference to the decision of the High Court in Worladge v Doddridge (1957) 97 CLR 1; [1957] HCA 45 at 11 per Williams and Fullagar JJ to the effect that it should not be approached in a mean or ungenerous manner: PSOS [5]-[6].

In Luciano v Rosenblum (1985) 2 NSWLR 65 (Luciano v Rosenblum), Powell J (as his Honour then was) stated at 69-70:

In Marshall v Carruthers, Hodgson JA at [63]-[65], Young CJ in Eq at [71]-[75] and Palmer J at [78] warned against application of rules of thumb in determining family provision cases. Bryson JA in Bladwell v Davis warned against application of rules of thumb and the concept of paramountcy of widow’s claims. His Honour directed attention back to the application of statutory provisions as the basis for determining claims. His comments were not novel. In Gorton v Parks, Bryson J (as his Honour then was) had fifteen years earlier (2 June 1989), in the context of claims by adult children, emphasised the importance of deciding applications not by reference to special principles to be applied in relation to categories of applicants and directed attention back to the text of the legislation: at 6C-7G.

Mr Price made reference to Steinmetz v Shannon and, in particular, the comments of Brereton JA regarding widows’ claims at [98]-[109].

There, his Honour made reference to well-known decisions both at first instance and in the Court of Appeal regarding provision appropriate for a widow.

The thread running through his Honour’s observations in referencing cases such as Bladwell v Davis, Elliott v Elliott (Court of Appeal (NSW), Kirby P, Glass and McHugh JJA, 24 April 1986, unrep), Luciano v Rosenblum at 69-70 per Powell J (as his Honour then was), O’Loughlin v O’Loughlin [2003] NSWCA 99 and Burke v Burke [2015] NSWCA 195 is that determination of the question of what is adequate and proper provision is case-specific without any preconceptions or general rules of paramountcy of spouse claims.

Nonetheless, references to types of provisions such as accommodation, income and a fund, so long as they are not elevated to rules of law but understood as providing guidance, may be of use to a Court in considering the claim of an applicant: at [106].

As Brereton JA noted, such guidelines provide the additional benefit of affording a certain amount of consistency in decision-making, and indication of expectations and advice to litigants: at [108]. White JA, with some qualification, agreed with the reasons of Brereton JA in relation to guidelines for widows’ claims, emphasising the importance of such guidelines as being not elevated into inflexible rules and subject always to the consideration of the facts of each particular case: at [37].

A “Crisp order” is a form of provision derived from orders in the decision of Holland J in Crisp v Burns Philp Trustee Co Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unrep) extracted in part in Les Handler & Richard Neal, Mason and Handler Succession Law and Practice New South Wales (LexisNexis) at [9433] and otherwise accessible via LexisNexis unreported judgements.

Such an order was described by Ipp JA in Milillo v Konnecke [2009] NSWCA 109 (Milillo v Konnecke) (Macfarlan JA and Sackville AJA agreeing at [132] and [133] respectively) at [47]-[48] in the following terms:

As is evident from the above, a Crisp order is often described as a form of “portable life interest”.

As initially envisaged by Holland J, a Crisp order was not expressly limited to accommodation provision. Nonetheless, where it is suggested as a form of provision, that is often in a context in which it relates to the provision of accommodation.

In Milillo v Konnecke, the appellant contended that the primary judge (Young CJ in Eq) had erred by not considering a provision in the form of a Crisp order as provision for the appellant. The appellant had been given a life interest in a property and Young CJ in Eq had dismissed her claim for provision. The Court of Appeal dismissed the appeal.

In Nudd v Mannix [2009] NSWCA 327, Handley AJA (McColl and Macfarlan JJA at [1]-[2] agreeing respectively) made some comment as to considerations which might favour or go against the appropriateness of a Crisp order. Whilst the appeal was allowed, Handley AJA noted that sometimes in cases where a plaintiff might receive a substantial capital sum for accommodation which he or she may only use for a short period of time before the asset passes to members of the plaintiff’s family, who are not eligible dependents of the deceased, the situation can sometimes be accommodated for by the making of a Crisp order: at [20] per Handley AJA.

However, as the issue of a Crisp order had not been raised or litigated at the first instance hearing, such an order was not regarded as being appropriate on appeal particular in circumstances where there was an absence of appropriate evidence and findings to enable the Court to balance the legitimate short-term interests of the plaintiff (appellant) with the legitimate longer-term interests of the beneficiaries by making such an order: at [21] per Handley AJA,.

In Sarant v Sarant, Hallen J stated at [245]:

Crisp orders have been made in circumstances in which an estate is small, where a plaintiff is either very aged or has a limited life expectancy and there are competing financial claims by beneficiaries who might bear the burden of any order for provision to retain the benefits they receive under the Will.

Those are not the only circumstances in which a Crisp order might be made. Ultimately, each case will depend on its own facts.

The fact that the Court may have regard to potential pension entitlements is not controversial. How the Court has approached the question of whether an order ought to be made or the form of any such order or amount of any such order in this context, however, has not been the subject of uniform approach by Courts in Australia. The diversity of approach is referred to by de Groot and Nickel at [2.17] 31-32.

I address more specifically below the submission regarding the DSP contingent liability.

Practice within family provision proceedings encourages fairly immediate disclosure of information. Thus, at the first directions hearing, the Court generally gives directions for the purpose of making information available at the earliest practicable date so that all parties may make a realistic assessment of their respective cases: Practice Note SC EQ 7.

Such orders for disclosure at an early point facilitate the various purposes in the administration of justice.

In estate law disputes, parties can benefit from the assistance that can be brought to bear by an experienced mediator and the creation of an opportunity for them to seek to resolve their differences themselves rather than have a resolution forced upon them by an adjudicatory process: Johnston v Johnston [2004] NSWSC 497 (Johnston v Johnston) at [11] per Barrett J (as his Honour then was). This is particularly so where there is at least some measure of goodwill between the disputing family members: Johnston v Johnston at [8]-[11].

Even if goodwill has diminished or evaporated, mediation provides an opportunity for parties to resolve differences in claims where the outcome is notoriously uncertain. It is well-known and common experience in family provision claims that predictability of the outcomes is not quantifiable by the parties’ legal advisers prior to judgment with anything like the degree of certainty that applies in other areas of civil law: Sherborne Estate (No 2): Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003 at [56]-[58] per Palmer J.

Secondly, it enables the furthering of the overriding purpose of facilitating the just, quick and cheap resolution of real issues in family provision proceedings: s 56 Civil Procedure Act 2005 (NSW) (CPA).

The Court, mindful of the wisdom of mediating, has a standing practice that all proceedings involving family provision applications will be referred to mediation unless the Court orders otherwise: Practice Note SC EQ 7.

The Court encourages early resolution of the proceedings including by referring the matter to mediation (or otherwise by informal settlement conferences) at least in part to prevent the incurring of significant costs at an early time which costs might become an inhibiting factor if any attempted consensual resolution is delayed.

Principally, the disclosure of information that is accommodated within the initial directions of the Court is focussed on details of the plaintiff’s financial position and that of such, if any, beneficiaries who seek to raise their financial and material circumstances as a relevant factor in the determination of the family provision claim.

In contradistinction to an applicant, beneficiaries (who are not making a claim) are entitled to elect not to make disclosure about their financial resources and needs. A beneficiary may remain silent about his or her financial resources and needs, and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and the deceased’s preferable disposition to him or her as the sole beneficiary, regardless of his or her financial position or needs: Jodell v Woods [2017] NSWSC 143 at [29]-[30] per Hallen J citing Sammut v Kleemann [2012] NSWSC 1030 at [137]-[140] per Hallen J.

Put in other terms, where beneficiaries do not make a disclosure of their financial circumstances, it has been said that the Court proceeds effectively on the basis that such a beneficiary is not contending that their financial circumstances are such as to reduce or limit what might be assessed as proper provision for the applicant: Field v Inglis (Supreme Court (NSW), Young J (as his Honour then was), 8 February 1994, unrep) at 2.

However, s 61(1) Succession Act provides that a beneficiary’s interests cannot be disregarded in determining an application for a family provision order.

Ordinarily, the disclosure of information is provided directly by a plaintiff or beneficiary either by annexing documents to the deponent’s affidavit or alternatively by exchange of documents.

To the extent that the disclosing party has financial documents within their possession (such as bank statements, credit card statements, income tax returns and assessments etc) such documentation is able to be produced directly.

Financial documents relating to the disclosing party that are held by a third party such as an accountant or a financial institution can be subpoenaed.

In a limited number of cases, there are certain records where statutory provisions preclude the production of materials pursuant to a subpoena.

A particular example of this is documents held by Centrelink where certain legislative confidentiality provisions effectively preclude the obtaining of documents at least by means of a subpoena.

A regime addressing information management regarding social security payments is addressed within the provisions of Div 1 Pt 5 Social Security (Administration) Act 1999 (Cth) (SSAA).

Confidentiality provisions are contained within Div 3 Pt 5 SSAA.

The purpose of the confidentiality provisions is to protect the privacy of the recipient of social security benefits: e.g. ss 205-207 SSAA.

Generally, a social security officer is precluded from producing any documents or disclosing any matter or thing of which he or she has notice to a Court requiring production of documents or answering of questions pursuant to a subpoena (except in cases where the production is for the purposes of the social security law or Royal Commissions): s 207 SSAA.

Whilst a plaintiff social security recipient has a right to privacy, the SSAA provides a mechanism by which the Department’s officers may be permitted to provide information to a third person: e.g. Tahana v Hines [2021] NSWSC 564 (Tahana v Hines) at [47] per Cavanagh J.

Specifically, the Secretary of the Department may disclose information to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it: s 208(1)(b)(ii) SSAA.

There is a Centrelink form available from Services Australia headed “Authority to release personal information - Personal injury, insurance, superannuation or other matter form” (Form S1039) which facilitates such provision of information.

It has been commonplace at least in estate litigation and family provision claims, for information relating to the recipient of a pension to be requested to execute an authority (for example such as the form noted above) to enable an authorised party to obtain any relevant information from Centrelink held or maintained by Centrelink in relation to the pension recipient.

Execution of such an authority is not necessarily limited to a context in which an opposing party may wish to either obtain information where none is known or test information which is proffered. Indeed, an applicant might wish to execute an authority to enable the provision of information to the Court to facilitate the proof of the applicant’s financial circumstances, or potentially even to quell suspicions of an opposing party.

Whilst the Court is mindful of the importance of privacy considerations, where there is resistance by a social security recipient in providing information, frequently orders are made requiring a party to execute an authority to enable the obtaining of such information: Tahana v Hines at [50]; El-Helou v Smith [2009] NSWSC 741 at [25] per Harrison J; Wray v Wray [2007] NSWSC 164 at [17] per Gzell J; Merkuloff v Yalisheff [2003] NSWSC 1183 (Merkuloff v Yalisheff) at [19] per Young CJ in Eq (as his Honour then was) (although, as noted below, the mechanism adopted by his Honour in that case was more nuanced).

Whilst there is a direct mechanism pursuant to the provisions of the SSAA for the obtaining of such information, in Merkuloff v Yalisheff, Young CJ in Eq (as his Honour then was) expressed no doubt that he had power to make an in personam order directed to an applicant to cause Centrelink to produce documentation to him under the Freedom of Information Act 1982 (Cth): at [19]. His Honour, mindful of avoiding or limiting the wastage of legal costs, addressed the matter indirectly by making an order that the plaintiff’s proceedings be stayed until the plaintiff forwarded to the defendant the information required (regarding the former’s receipt of unemployment benefits from Centrelink). His Honour considered that how the plaintiff obtained that information was a matter for the plaintiff: at [19].

For the Court to properly determine a family provision claim there must be a degree of financial disclosure by the parties. I leave aside the content of the obligation on the part of defendants or those administering the estate to provide the Court with details regarding the estate.

It is incumbent on an applicant to disclose to the Court, as fully and frankly as possible, all details of his or her material and financial circumstances as they are at or about the time of the hearing: Stone v Stone [2019] NSWSC 233 (Stone v Stone) at [60] per Hammerschlag J (as his Honour then was) citing DJ Singh v DH Singh [2018] NSWCA 30; (2018) 17 ASTLR 317 at [284]-[291] per Gleeson JA (Leeming and White JJA agreeing)

The obligation to assist the Court and the relevance of the provision of information is that if the Court does not have before it pertinent facts or material information, it is inhibited in making the evaluative judgement which s 59(1)(c) Succession Act requires it to make: Stone v Stone at [62]-[64].

The obligation is underpinned, at least in part, by the duty of the applicant to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: Stone v Stone at [63].

Lest the reader conclude that the duty I am referring to is of recent origin brought about by statutory reforms expressing the overriding purpose – which in New South Wales has been in operation in this Court since at least 1 March 2000, at least five years prior to the 2005 civil procedure reforms: Supreme Court Rules (Amendment No. 337) 1999 (NSW) – it is not. In several cases 25 to 30 years ago, eminent members of the Court of Appeal expressed laments regarding lack of information in family provision proceedings.

In Robinson v Tame [1994] NSWCA 266 (Robinson v Tame), Kirby P (as his Honour then was), at 8, in a context of a family provision appeal, suggested that the lack of critical information was not an isolated event. His Honour indicated that it was a constant source of surprise to him in that case as in others under the then family provision legislation, that so much attention is spent on personal recrimination in such cases and insufficient attention is paid to proof of precise financial means of the parties and the precise needs of the claimant.

His Honour, with whom Handley and Sheller JJA agreed, stated (at 8):

In King v Foster [1995] NSWCA 240 (King v Foster), Sheller JA noted that in that appeal the evidence about the amount of the estate available for distribution, the plaintiff’s financial position and the deceased’s widow’s financial position at the date of the hearing was and had on appeal remained, confused.

His Honour stated as follows (at 5-6):

In Milillo v Konnecke; Borazio v Konnecke [2008] NSWSC 1069 (Milillo v Konnecke; Borazio v Konnecke), Young CJ in Eq (as his Honour then was) at [46] stated as follows:

Leaving aside the final sentence of [46], the remarks are consistent with those stated above.

In particular, where there is likely to be an issue regarding pension entitlements, the Court expects there to be appropriate evidence regarding it that is not only adduced but also revealed to the opposing party prior to the hearing: Milillo v Konnecke; Borazio v Konnecke at [46].

His Honour’s comments regarding the need for appropriate information to be placed before the Court including full and complete details of a plaintiff’s needs was expressly referred to by Ipp JA on appeal and provided a separate basis to reject the appeal at least in relation to the ground relating to accommodation in the form of a Crisp order: at [71]-[72].

The practice of the Court in the orderly conduct of family provision proceedings allows a degree of purposive pragmatism which is consistent with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: cf Estate of Grundy at [126].

Thus, parties are permitted to prove certain aspects of their claim by relatively informal means. That includes estimates of the value of real estate and other assets, best estimates of the costs or expenses of items a plaintiff or beneficiary wishes to acquire or costs and expenses of renovation or refurbishment of property: Practice Note SC Eq 7 at [21].

However, there are qualifications on informal proof. Thus, informal proof by the plaintiff, or by the beneficiary, of any physical, intellectual, or mental, disability, from which it is alleged the plaintiff, or the beneficiary, or dependent of the plaintiff or beneficiary, is suffering, is permitted by mere description of the condition provided it is coupled with a copy of any medical, or other report, in support of the condition alleged: Practice Note SC EQ 7.

Further, the permission for informal proof of such matters is subject to an opposing party giving reasonable notice that strict proof is necessary or the Court ordering otherwise: Practice Note SC EQ 7.

Family provision claims are at risk of being dismissed in circumstances where a crucial element of the applicant’s financial circumstances is not satisfactorily proved: Cringle v Cringle [2018] NSWSC 1558 at [36] per Ward CJ in Eq (as the President then was) citing Collings v Vakas [2006] NSWSC 393 (Collings v Vakas) at [67] per Campbell J (as his Honour then was).

In Collings v Vakas, Campbell J said at [67] as follows:

Risk of rejection of a particular claim in whole or part also arises where there is inadequate proof of a crucial element of an applicant’s claim for provision.

Mr Price submitted (at PSFFD [2]-[6]) that the obligation of an applicant to provide full and frank disclosure, properly understood is an obligation not to knowingly or deliberately fail to disclose information relevant to the issue in question where the failure to provide the information could be misleading or otherwise result in the Court being diverted from the true position citing Stone v Stone at [64] and Blendell v Byrne; The Estate of Noeline Joan Blendell [2019] NSWSC 583. He also referred to my decision in Clayton v Clayton at [204]-[205]. My comments in Clayton v Clayton at that point related to the finding that I did not consider that the plaintiff had provided a full and frank explanation of the circumstances regarding the finishing of his employment with the company in question and his timing for admission to a mental health clinic in a context where certain statements in his updating affidavit were false.

I do not consider that the requirement of full and frank disclosure referred to by Hammerschlag J (as the Chief Judge then was) in Stone v Stone is necessarily limited as Mr Price submits.

Mr Price is correct that there was no challenge, at least in cross-examination, to the credit of the plaintiff on any matter concerning the DSP. I certainly do not make a finding that he misled the Court.

However, that does not entirely dispose of the issue.

Quite apart from cases dealing with full and frank disclosure, which, for example, in some stark cases may manifest themselves by deliberate failure to produce documents, there is, as I have addressed above, simply a legal forensic onus on a plaintiff to provide the Court with satisfactory evidence of any material element of the applicant’s financial position or particular claim for provision to enable the Court to make the requisite evaluative judgement which the statutory provisions require it to make: s 59(1)(c) Succession Act; Stone v Stone at [62]; Cringle v Cringle at [36]; Collings v Vakas at [67]; Robinson v Tame at 8; King v Foster at 5.

In some cases, a lack of full and frank disclosure has profound effects. If deliberate, for example, it may completely or significantly undermine the Court’s confidence in the reliability of the information being placed before it and have the effect of infecting the plaintiff’s credibility and reliability as a witness generally and, in particular, the Court’s confidence that it can rely upon any of the information as to the applicant’s financial circumstances and claims for particular provision. In such cases, the entirety of the plaintiff’s claim for provision might be dismissed.

In other cases, the lack of disclosure might have a more discrete effect perhaps being limited to one aspect of a claim for provision.

The plaintiff’s evidence regarding the marriage included the following:

The plaintiff adduced what was described as a certified copy of his Islamic certificate of marriage. That document (CB 50) is essentially a handwritten document under letterhead stating “Shiekh Ridwaan Raffie – Suburban Islamic Association”. There is a typed address at the top of the document giving a location as being in Leumeah, New South Wales. The document bears a handwritten date and the words:

The document is signed by two witnesses at least one of which is Tarek. The document refers to a dowry paid of AU$50.

The deceased’s death certificate records the deceased’s marriage to Ahmad and also records her marriage to the plaintiff. The marriage details suggest the marriage took place at Lakemba, New South Wales and that the deceased was aged 40 when she married which would have (if that is an accurate statement of the age) placed the marriage as being in 1995-1996. Tarek is the informant for the death certificate: CB 49, 158.

In relation to the marital status between the plaintiff and the deceased, Laila stated that “to my knowledge, my mother’s and the Plaintiff’s Islamic marriage was not registered under any Australian law”: CB 286[7].

To be legally married in Australia there are various requirements under the Marriage Act and the Marriage Regulations 2017 (Cth) (Marriage Regulations).

The requirements include essential requirements about the status of the individuals being married including that they be of particular age (at least 18 years old unless approval has been given to marry under that age), that they are not otherwise married, that they understand what marriage means and that they freely agree to marry.

Prior to any ceremony, parties must complete a notice of intended marriage form and give it to the celebrant between 1 to 18 months before the wedding.

The wedding ceremony must be conducted by an authorised marriage celebrant. Certain words are required to be uttered for the marriage to be legal. Copies of marriage certificate must be signed by the celebrant and witnesses. The certificate must then be registered with the relevant Register of Births, Deaths and Marriages in the state or territory that the ceremony took place.

There are other requirements but the above suffices to demonstrate both the substantive and formal requirements are detailed.

In Australia, an Islamic marriage conducted by an authorised Islamic marriage celebrant can be registered if there is appropriate compliance with the requirements of the Marriage Act: see generally Ann Black, “Adaptions of Islamic family law for the Australian context” (2016) 30(3) Australian Journal of Family Law 159 at 169.

In New South Wales, two adults who are in a relationship as a couple, regardless of their sex, may apply to the Registrar of Births, Deaths and Marriages for registration of their relationship: s 5(1) Relationships Register Act 2010 (NSW) (RRA). There is no definition of a “couple”. However, there is some content given to the meaning of a couple for the purposes of registration by certain provisions within the RRA including the fact the persons must be adults (defined as being above the age of 18) and that it excludes both married persons and persons related by family. Additionally, there must be an element of exclusivity in that the parties must declare that they are not in a relationship as a couple with a person other than the other applicant: ss 5,6 RRA. Otherwise, the ordinary English understanding of the term “couple” is two people in a romantic relationship or being otherwise connected or considered together: Macquarie Dictionary, online ed. There are registration requirements including an application for registration of the relationship which is to be made in the form approved by the Registrar and must be accompanied by a statutory declaration by each of the persons in a relationship.

According to s 3 of the Births, Deaths and Marriages Registration Act 2005 (NSW) (BDMRA), the objects of the Act are:

The role of the Registrar of Births, Deaths and Marriages is set out in s 43:

The register may be corrected in the manner provided for by s 45:

With respect to s 45, it has been said that “[t]he power to correct the register is discretionary. It is predicated on the decision maker being satisfied the proposed changes in conformity with the most reliable information about the registrable event”: Ward v New South Wales Registrar of Births, Deaths and Marriages [2015] NSWCATAD 86 at [10] per Senior Member P Molony.

The Registrar, in exercise of functions under the BDMRA Act, is subject to the control and direction of the Minister: s 5 BDMRA Act.

There is no definition of “death certificate” in the definitions in s 4 of the BDMRA (although there is a definition of “birth certificate”, which means “a certificate issued under section 49 as to the particulars contained in an entry in the Register in relation to a person’s birth”).

Deaths in NSW must be registered under the BDMRA: s 36(1). A Court may order that a death be registered under the BDMRA: s 36(2).

A death is registered by the Registrar making an entry about the death in the Register containing the particulars required by the regulations: s 42(1).

The particulars required are set out in reg 16 of Births, Deaths and Marriages Registration Regulation 2017 (NSW) (Births, Deaths and Marriages Regulation).

The particulars required include whether, immediately before death, a person was married, divorced, widowed, in a registered relationship or an interstate registered relationship or in a de facto relationship or had never married: Births, Deaths and Marriages Regulation reg 16(h).

Sometimes, contests occur between warring family members where one of the deceased’s relatives attempts to persuade the Registrar to exercise their powers under s 45 to amend the particulars in the entry relating to the death of the deceased (i.e. where the entry records a fact that the deceased person was married, a widow/widower or in a de facto relationship and the applicant wishes to contest the accuracy of that particular): see Jack v NSW Registrar of Births, Deaths and Marriages [2019] NSWCATAD 200; Edgar v Registrar, Births Deaths and Marriages [2022] NSWCATAD 170.

Section 49 of the BDMRA describes the issuance of a certificate and its evidentiary effect (emphasis added):

In Afchal v Registrar of Births, Deaths and Marriages [2021] NSWCATAD 24, Senior Member SE Frost said at [21]:

The meaning of the terms “entry” and “particulars” is informed by the context and text of the BDMRA.

The proper construction of “entry” in the context of a death certificate is that that term refers to the totality of information contained in a death certificate (issued pursuant to s 49). The “entry” contains the required “particulars”: s 42(1). The facts contained in the entry, including whether the deceased person was married or in a de facto relationship, constitute the particulars (see reg 16 of the Births, Deaths and Marriages Regulation). By force of statutory language, the entire death certificate represents an “entry”, and a fact recorded therein is a “particular”.

Accordingly, a particular detail in a death certificate (recording that the deceased was married or in a de facto relationship with someone) is admissible in proceedings as evidence of that fact pursuant to s 49(2) BDMRA.

In Re Estate of Alan Bruce Beeby [2020] NSWSC 1512, Hallen J commented on the evidentiary effect of a death certificate as follows (at [75]-[76]):

In Re Thomas, deceased; Queensland Trustees Ltd v Thomas [1932] St R Qd 57, EA Douglas J was concerned with an action to determine the next of kin of a deceased person. The deceased was the son of T and MT, who were married in Victoria in 1864. T died in 1875 leaving behind his wife and five children. From 1877, MT lived and cohabited with C, until shortly before he passed away in 1893. MT and C had four children together. The register of marriages recorded a marriage between T and MT but not between C and MT. The birth certificates for MT and C’s four children recorded MT and C bas being married (albeit that they recorded the date of marriage differently). C’s death certificate recorded that he was married but that the names of his wife and children were unknown (at 61). There was other evidence in the case supporting the proposition that C and MT were legally married. The deceased died without issue in 1930.

EA Douglas J held that the children of the second union (between C and MT) were among the next-of-kin of the deceased as there was sufficient evidence supporting the existence of a marriage between C and MT which raised a presumption of its existence which the rebutting evidence could not displace. His Honour considered that the birth certificates were admissible as evidence favouring the lawful marriage of C and MT.

In reaching that conclusion, his Honour followed an English decision (In re Stollery [1926] Ch 284) which supported the proposition that facts stated in a birth certificate may be received as evidence of the existence of a marriage between parties: at 63. His Honour noted (at 63) (footnotes omitted):

In reaching the conclusion that the birth certificates supported the existence of a legal marriage between C and MT, his Honour considered the relevance of MT’s death certificate (at 65) (emphasis added) (footnotes omitted):

Similar principles are discussed in Re Pennington, deceased (No 2) [1978] VR 617 at 623 (see also at 629) per Harris J. Accordingly, pursuant to general law and s 49(2) of the BDMRA, if there is a particular contained in a death certificate which records the deceased as being married to, or in a de facto relationship with, another person, the certificate is evidence of that fact, but may have to be weighed against the existence of other evidence which supports or contradicts it. That is, whether it is conclusive or not in any given case depends on the existence of surrounding alternative evidence.

There are two issues. The first is whether the ceremony on 7 September 1997 is the only marriage ceremony. The second is whether the ceremony (or ceremonies, if more than one) complied with the requirements for a marriage for the purposes of the Marriage Act.

There was no express evidence that there was any marriage ceremony between the plaintiff and the deceased other than the Islamic marriage ceremony recorded in the handwritten certificate dated 7 September 1997: CB 50.

During the course of submissions, I entertained the possibility that the reference to a marriage at Lakemba when the deceased was aged 40 (being a marriage in or about 1995-1996) might well be a reference to a separate marriage ceremony than the Islamic ceremony recorded in the handwritten document dated 7 September 1997: T 64-65.

The Islamic marriage certificate does not refer to any location of the marriage. The printed address on the certificate being an address at Leumeah is a reference to the address of the “Suburban Islamic Association” rather than being a reference to the location of the marriage.

Mr Ellison SC submitted that the plaintiff was in a position to expand or elaborate on the details but had declined to do so: T 63.35-45.

I consider that, on reflection, the totality of the evidence coupled with Mr Price’s submissions points more particularly to there being only one marriage ceremony having occurred.

Mr Price submitted that that ceremony sufficed to amount to a legal marriage not merely a de facto marriage: T 44. He referred to the death certificate (CB 49, 158) asserting that the marriage had been registered with the Registry of Births, Deaths and Marriages and that the plaintiff and the deceased were in fact spouses: T 44.

Mr Ellison SC submitted that an Islamic marriage under Sharia Law was not a marriage for the purposes of the Marriage Act and that although Tarek was the informant for the death certificate, the recording of the marriage in the details of the death certificate did not prove a de jure marriage and did not qualify as proof of a marriage such as might be evidenced by a marriage certificate: T 63-64.

The plaintiff was not cross-examined as to the details of his marriage to the deceased.

Laila was not cross-examined regarding the assertion in her affidavit that the Islamic marriage was not registered under any Australian law. Beyond perhaps either the plaintiff or the deceased informing her that the marriage was not registered, it is not clear to me how Laila would have been in a position to have been aware as to whether the marriage was registered or not. She did not indicate that she had made any search of the relevant register. She did not refer to any statement that had been made to her by the plaintiff or the deceased.

Tarek, despite being one of the witnesses to the Islamic marriage ceremony, did not address the issue and was not cross-examined.

Mr Ellison SC did not dispute that there was a de facto relationship between the plaintiff and the deceased.

No evidence was given in relation to the requirements for an Islamic marriage ceremony.

Neither of the parties provided the Court with any particular details regarding the Islamic marriage ceremony and, in particular, any sufficient details about it beyond what appears in the handwritten certificate to establish as a matter of fact whether the marriage complied with the requirements for a legal marriage for the purposes of the Marriage Act.

In light of the plaintiff’s evidence that he did not know whether the Islamic marriage was registered as a marriage under Australian law, and in light of Laila’s albeit conclusive assertion that the marriage was not registered under any Australian law, and in light of the absence of any marriage certificate or any evidence demonstrating that the formal requirements for a marriage were complied with, I consider that on balance there was not a legal marriage registered for the purposes of the Marriage Act.

The plaintiff states that the deceased maintained him throughout the marriage and claims he contributed to the conservation and improvement of the deceased’s property from the time that they were married: CB 35[108].

He states that they worked together and did not keep money separate from one another and whatever they made they put together: CB 324[34]. That does not appear to entirely reflect the evidence and, in particular, the fact that many of the property purchases referred to in the evidence by the deceased were in her sole name. Clearly, the bank accounts disclosed in the inventory of property and joint party schedule were accounts in the deceased’s sole name. The evidence does not disclose any particular joint accounts as between the plaintiff and the deceased.

I have referred above to five “Contributions issues” I address these matters below.

The plaintiff states that prior to moving into the Bringelly property he and the deceased had extensive renovations carried out to the house at a cost of approximately $450,000: CB 24[46]. Tarek states that he was the one who arranged for, co-ordinated, project managed and personally worked on the renovations. He states that he took about 12 months off work to oversee the project: CB 315[23].

It is unclear to me the extent of the dispute about the matter, and it was not explored by any cross-examination of either deponent.

The statements in this regard are not necessarily at odds.

On the face of it, I accept that the plaintiff provided some contribution to the cost of renovations to the Bringelly property. I also accept Tarek’s evidence as to his involvement. The state of the evidence does not enable me to make any more precise findings.

The Run-O-Waters property is vacant land: CB 25[57]. When it was purchased in April 1999, the property was registered solely in the deceased’s name. The plaintiff did not in his evidence explain or otherwise proffer any reason for that: CB 21[23(b)].

The plaintiff asserted that he provided the funds to purchase the Run-O-Waters property: CB 25[56].

Laila states that she always believed that the deceased paid the purchase price for that property: CB 287[14].

Laila disputed the plaintiff’s assertion and referred to a conversation with the deceased as follows (at CB 290-291[33]):

Laila states that the deceased never told her that the plaintiff had paid for the property or used his money: CB 291[33].

Likewise, Tarek held the same belief and stated, in evidence which was limited to belief pursuant to s 136 Evidence Act 2005 (NSW) (Evidence Act), that that was because the plaintiff only had a limited amount of cash of his own and, he believes, much less than what was needed to cover the purchase price. Tarek says that the deceased said to him at the time of that purchase:

The plaintiff was cross-examined regarding his evidence that he had provided the purchase price for the Run-O-Waters property.

The plaintiff indicated that when he was injured in 1997, he had about $65,000 in the bank: T 30.

He accepted that after he was injured, he started spending that money on living expenses straight away: T 30.34-31.9. The tenor of the cross-examination was to the effect that even if the plaintiff had had an amount of $65,000 in the bank that by the time that the Run-O-Waters property was purchased (1999: CB 21[23(b)]), several years had elapsed during which he spent that money on living expenses.

However, the plaintiff indicated that he started to receive money from Centrelink although could not recall the first time that he received such money. When asked whether his first payment from Centrelink was more than a few years after he was injured, the plaintiff denied that stating that he submitted all the paperwork with Centrelink to start getting paid an allowance: T 31.7-18.

When it was put directly to him that when the deceased purchased the Run-O-Waters property he did not have $65,000 in the bank, the plaintiff denied that stating: “Yes, I did have $65,000” (T 31.22).

On the whole, I consider that I should accept the plaintiff’s evidence that he provided funding of $65,000 or at least a figure close to that for the purpose of purchasing the Run-O-Waters property.

I do not regard the plaintiff’s evidence that he had $65,000 available as being inherently incredible or unreliable. Mr Ellison SC did not submit that the plaintiff should be disbelieved on this evidence.

I am mindful of the remarks made by Laila and Tarek regarding the deceased’s statements in respect of the Run-O-Waters property.

However, Laila’s evidence of her mother’s statement “I've bought this land at Goulburn” does not necessarily speak to the source of the purchase price. Tarek’s evidence of a conversation of the deceased at the time of the purchase, refers to the deceased having “some spare cash to do this” but does not necessarily speak to the source of the “spare cash” nor rebut the plaintiff’s evidence that the plaintiff contributed the monies for the purchase.

Ordinarily, it might be a little curious as to why if the plaintiff provided the funding the property was placed in the deceased’s name. There is no need in the context of this claim to address issues of whether the payment gave rise to a presumption of advancement. That is because even if it did, it was nonetheless a financial contribution by the plaintiff to the deceased’s financial resources and the building up of her estate.

Curiosity regarding property being placed in the deceased’s name is at least somewhat quelled by the fact that there are other transactions which I have referred to deposed to in the evidence whereby property was put in the name of the deceased which property was either used by or in part funded or contributed to by her children whether initially or by payment of mortgage amounts.

The plaintiff states that after his marriage to the deceased he started spending time with her in the Rosemeadow shop helping her operate the shop by undertaking tasks such as taking money to the bank and collecting items for sale in the shop: CB 21[24].

He stated that until about 2005, he spent more time at home than at the Rosemeadow Shop: CB 21[25]. This accords with Laila’s evidence indicating that the deceased said:

Laila says that the plaintiff’s assistance in the business was very limited due to his language difficulties and lack of business acumen and that he lacked a lot of confidence or drive and was constantly asking the deceased for fairly basic assistance as to how and what to do. She states that she used to call in at the shop usually once a week and that the plaintiff would get frustrated and be floundering and turned to the deceased for help: CB 287[15]. Laila, in a sense, challenged in this regard the quality of assistance provided by the plaintiff. She did not challenge the fact that the plaintiff provided assistance in a manner that he described. I accept that the plaintiff provided some degree of assistance which was of some help to the deceased in the business.

The plaintiff states that there were also frequent callouts to the Rosemeadow shop due to the activation of the burglar alarm. He says he would always attend the shop to investigate the alarm and sometimes the deceased would come with him. He intimated that when responding to an alarm the deceased did not attend the shop on her own because of potential danger: CB 21[24]. Tarek’s evidence on this did not, at least expressly, contradict the plaintiff. He indicated that he too was often called to respond and often went with his mother to such security callouts: CB 313[11].

Laila states that it was the deceased who usually went back to the shop, often with the plaintiff, but sometimes with her brothers instead of the plaintiff for some degree of “male protection”: CB 287[16].

There is slight dispute on the evidence. On any view of it, even on Laila’s evidence, the plaintiff often went with the deceased to investigate security callouts.

I find that the plaintiff did not attend the shop “always” on such occasions but did often attend with the deceased.

The plaintiff asserts that from 2005 until approximately 2010, he worked in the Rosemeadow shop from 9 AM to 9 PM (seven days a week), often running the shop alone: CB 23[32]. Laila asserted that the deceased ran the shop and was the one who was there most of the time not the plaintiff: CB 289[26].

There was no cross-examination to assist the Court to resolve that dispute. The plaintiff indicates that he was able to manage dealing with customers despite his limited English skills because most customers would ask for a particular brand of cigarettes, and he got to know the brands: CB 23[32].

I accept that the deceased was in charge of the shop in the sense of making managerial decisions. There is no suggestion that the plaintiff was making managerial decisions. Nonetheless, I accept that the plaintiff did work in the shop for a not insubstantial period of time. Beyond that generalised finding, the limited evidence and lack of cross-examination does not enable me to make any more precise finding.

The plaintiff claims that when the Rosemeadow shop was sold in or about 2010, he helped train a potential purchaser: CB 23[34]. Laila states that it was the deceased who trained the purchaser not the plaintiff: CB 289[27]. I accept that the plaintiff provided some assistance to the deceased in training the purchaser.

The plaintiff indicates that when the Liverpool shop was purchased or opened in 2013, he commenced working seven days a week from 9 AM to 7 PM: CB 23[36]. The plaintiff asserts that he and the deceased opened the business. Laila indicates that the shop was opened by the deceased in her own name not “together with the plaintiff”. She indicates that the plaintiff was not in favour of the deceased opening the shop: CB 290[28].

The plaintiff was not cross-examined about this. Nor was Laila. I admit of the possibility that the Liverpool shop was opened by the deceased in her name solely and that the plaintiff assisted her in operating the business. Laila does not dispute that the plaintiff worked at the Liverpool shop.

The plaintiff states that he was not paid a salary or wages nor any superannuation for his work at the Rosemeadow shop or the Liverpool shop: CB 23[39]. He indicates that a vast majority of the money derived from the Rosemeadow shop and the Liverpool shop was used to pay expenses including contributions to the family including funding Tarek’s legal costs associated with the criminal proceedings: CB 23-24[40].

Tarek disputes the plaintiff’s claim that the deceased paid his legal fees in the amount of $550,000 but accepts that she provided assistance for the fees in the sum of $190,000: CB 314[18]. I accept Tarek’s evidence regarding the matter.

Laila, on the other hand, states that the deceased gave the plaintiff cash payments of usually $300 each week so that he had enough cash to spend separately to his receipt of Centrelink payments: CB 290[29].

There was some dispute as to how the deceased was able to fund property purchases.

The plaintiff asserted that the real estate purchased by the deceased in her sole name was purchased with the income from the Rosemeadow shop and the Liverpool shop: CB 24[41]. Tarek responded by indicating that most of the real estate purchased by the deceased was funded either by mortgage loan or from the net proceeds from previous property sales: CB 315[20].

There was no cross-examination of either the plaintiff or Tarek on this issue.

The Bringelly property was purchased for a sum of $805,000 with the deceased borrowing $500,000 from the ANZ Bank: CB 24[44]. The plaintiff says that the balance of the purchase price, stamp duty and legal costs associated with the purchase came from money generated by the Rosemeadow shop: CB 24[44]. Neither Tarek nor Laila disputed the plaintiff’s evidence in this regard.

No details were provided regarding the extent of income derived by the deceased through the business.

To the extent that the deceased funded the purchases from mortgage loans, I accept the plaintiff’s evidence that the deceased used at least some of the income from the Rosemeadow shop and the Liverpool shop.

In relation to the Bringelly property, the above evidence suggests that a significant amount, seemingly in the order of $300,000 or more, was funded from what appeared to be accumulated savings from income from the Rosemeadow shop.

The plaintiff asserts that the purchase price, stamp duty, legal costs and expenses for the purchase of the Minto property came from the proceeds of sale of the Rosemeadow property: CB 25[50].

Tarek conducted a renovation business from the Minto property: CB 25[51]. Tarek says that he was the one who found the Minto property in order to purchase so as to enable him to better operate his business. He refers to a conversation with the deceased informing her of his intention to purchase the property indicating that the deceased said: “Like we did before, we will put this property into my name”: CB 315[24].

Tarek states that he paid the deposit ($20,250) from his own funds and the property was purchased with a mortgage loan of $180,000. He states that he made all mortgage payments from his business revenue: CB 315[24]. Tarek was not cross-examined regarding this, and I accept his evidence in relation to it.

Beyond that, the state of the evidence leaves me unable to make any firm findings on the extent to which properties (other than the Bringelly property, the Run-O-Waters property and Minto property) were funded from income from the tobacconist business. Possibly, part of the answer is simply that the deceased was a savvy businesswoman who through astute purchases and otherwise careful management of whatever income she derived through the tobacconist business was able to generate sufficient wealth to either purchase properties outright or otherwise service loans.

The plaintiff says that from the time of marriage until about 2005, he spent more time at their home. He states that he assisted doing things such as cleaning the house which work he claims was shared as between the deceased and himself. He also assisted by serving and maintaining the car, mowing the lawn and providing maintenance to the garden and paying bills: CB 21[25].

Tarek said the plaintiff’s non-financial contributions were primarily in a support role to the deceased: CB 316[29].

Laila accepted that the plaintiff helped in and around the house: CB 292[41].

Tarek disputed aspects of the plaintiff’s homemaker contributions. He stated that the deceased had professional contract cleaners who maintained the house and that the plaintiff opened up the house to let the cleaners in (as the deceased was normally at the shop) and waited around until the cleaners finished and locked up the house to go over to the shop: CB 313-314[12]. Laila, as noted above, indicated that the deceased said:

Tarek states that the deceased had paid help to do the lawn mowing and garden maintenance: CB 316[29].

I do not consider that Tarek’s and Laila’s responses necessarily dispute the plaintiff’s evidence. They did not dispute that he assisted in relation to the car, the lawn, the garden and paying bills.

In relation to cleaning the house, even if contract cleaners come to a house, there is often other cleaning work which is required on days cleaners do not attend. The same is true in relation to gardening maintenance.

I accept that both the plaintiff and the deceased cleaned the house on at least some occasions and that the plaintiff’s work in that regard was of some assistance to the deceased. I also accept that the plaintiff provided some assistance in relation to mowing the lawn or otherwise maintaining the garden.

The plaintiff also indicated that he assisted the deceased by driving them to destinations on occasions. In particular, he refers to instances where Tarek and Basem lost their licenses respectively for a period of about six months: CB 21[26(a)-(b)]. Tarek disputed that the plaintiff was the first point of contact in this regard for driving tasks and disputed the extent of assistance claiming that the plaintiff only drove him on one occasion and can only recall the plaintiff driving for Basem once: CB 314[15], [16]. Laila likewise disputed that the plaintiff was the first point of contact within the family rather than the deceased and also disputed the extent of the plaintiff’s driving assistance to Tarek and Basem: CB 288[18]-[20]. I do not consider it necessary to particularly resolve this dispute. I am inclined to think that at least from the deceased’s children’s perspective, the deceased was the first point of contact in the family and that whilst the plaintiff provided some driving assistance, it was not as extensive as he states.

The plaintiff states that he was available as a babysitter for Laila’s children especially during her divorce in or about 2007, and in addition to providing transport as needed: CB 22[26(c)]. Laila denies the plaintiff’s evidence in this regard and set out reasons why she never needed the plaintiff’s assistance on these matters: CB 288[21].

Neither the plaintiff nor Laila were cross-examined on the issue. It is not critical to the plaintiff’s claim.

The plaintiff states that in or about 2005, Tarek was imprisoned whilst he was married to Reema and that during this time Reema lived with the plaintiff and the deceased and they supported her: CB 22[26(d)]. Neither Tarek nor Laila denied that Tarek was imprisoned. Laila says that Reema lived in the granny flat and had her own finances and savings and was not supported by either the deceased or the plaintiff and states that the deceased said to her at the time “I am not supporting Reema”: CB 288[22]. Yet again, this was a relatively minor issue. There was no cross-examination regarding it. The plaintiff’s assertion that Reema lived with he and the deceased was not specific as to whether she lived in the main house on the Bringelly property or in the granny flat. There is not necessarily any inconsistency between the evidence. I consider that Reema in all likelihood lived in the granny flat. I do not consider it necessary to resolve the dispute as to the level of support provided to Reema.

The plaintiff indicated that he provided babysitting for Tarek’s children: CB 22[26(e)]. Tarek did not deny this aspect of the plaintiff’s evidence and did not respond to it. Laila’s only response was that Reema and Tarek had no children together: CB 289[23]. The evidence does not disclose whether Tarek has children other than from his relationship with Reema. There was no cross-examination on the issue. It is minor. I do not propose to resolve it.

The plaintiff asserted that on 24 February 2021, Laila and Gasan attended the Bringelly property and removed the deceased’s jewellery and a quantity of cash which Gasan asserted to the plaintiff was in the order of $50,000 in cash taken by Laila: CB 37[124].

Laila, for her part, denied that she removed the deceased’s jewellery post-death. She indicates that when the deceased was “really sick”, the deceased requested that Laila go into the deceased’s walk-in wardrobe and remove jewellery items: CB 294[53]. Laila provided photographs and certain certificate evidence in relation to the jewellery: CB 294-295[53]. No jewellery was included amongst assets of the deceased for the purposes of the schedule being JP-1. Possibly, this was on the basis that from the defendants’ perspective, the jewellery constituted a form of donatio mortis causa (assuming, in this case, that the disposition was made by the deceased conditional upon, and in contemplation of, her death). In any event, the plaintiff’s counsel made no specific submissions in relation to the jewellery.

In relation to the cash, Laila disputed the version of the conversation said to have been uttered by Gasan but, nonetheless, accepted that an amount of cash of $18,000 had been located by her: CB 295.

The certificates or invoices relating to the jewellery (which are historic documents) record a total value of no more than about $20,000: CB 305-309.

The plaintiff denied that he had taken any cash out of the Bringelly house after the deceased had died and denied that he had taken the jewellery or retained any jewellery that belonged to the deceased. He indicated that Laila had taken “everything” out of the house or safe box and that he saw her take it: T 33.18-34.9.

Whilst there is some conflict on the evidence regarding this, there is no dispute that Laila, prior to the deceased’s death, on her version of events took the deceased’s jewellery at her request.

There is also no dispute that Laila took a degree of cash.

No particular submission was put regarding this issue.

Although there is some conflict between the plaintiff and Laila on this issue, so far as the cross-examination is concerned, I proceed on the basis that the plaintiff did not retain any casual jewellery from the house. Clearly, Laila, on her evidence, indicates that she took the jewellery and at least some degree of the cash.

The third general head of the plaintiff’s claim for provision was for an order addressing the potential liability he had to repay monies associated with his receipt of the DSP.

The premise for the plaintiff’s claim for provision for the so-called contingent liability arose from the fact that, on the plaintiff’s case, he commenced working full-time in the Rosemeadow shop tobacconist business from about 2005 and through to 2020 received the DSP: T 10.

Curiously, the evidence in relation to this issue was sparse. Yet it gave rise to strong contentions on either side regarding the appropriateness of what I have called the DSP contingent liability provision. It is for this reason that I have commented above regarding disclosure obligations in family provision proceedings generally and in respect of a significant specific claim for provision.

The plaintiff gave evidence in relation to applications made for a DSP. His evidence in his first affidavit regarding this was as follows (at CB 22[27]):

I refer to the two annexed two documents below.

In relation to the DSP, the plaintiff’s first affidavit provided the following additional details (CB 31[83]-[85]):

In the plaintiff’s final affidavit, he stated:

Tarek denied that he ever assisted the plaintiff with any government assistance paperwork: CB 314[17]. Laila also denied that she had ever assisted the plaintiff with government Centrelink paperwork and states that she was never asked to help: CB 289[24].

Laila states that she recalls the plaintiff “always” telling the deceased:

There was no evidence called from Basem or Suzanne regarding the matter.

The first document was a letter from Centrelink dated 10 July 2001 which was a letter from E Koulouris, an Authorised Review Officer, to the plaintiff addressing his review of Centrelink’s decision of 4 December 2000 to reject the plaintiff’s claim for a DSP: CB 51-55.

The Review Officer determined to affirm the decision to reject the plaintiff’s claim for a DSP: CB 54.

In light of the plaintiff’s evidence regarding his inability to read or write in English, which was not challenged, and in light of Laila’s evidence indicating that the plaintiff had language difficulties (CB 287[15]), I consider it inherently likely that the plaintiff did have assistance from family members other than Tarek and Laila, in relation to making the applications.

It is clear that a degree of medical evidence was placed before the Review Officer for consideration: CB 52.

The Review Officer referred to the provisions of s 94(1)(b) of the Social Security Act 1991 (Cth) (SSA). The letter indicates that s 94 sets out the qualifying criteria for payment of a DSP. Part of s 94 was quoted which was in the following terms (CB 51):

The letter affirming the decision to reject the claim for a DSP indicates that the Review Officer’s decision was based on the following findings (CB 51-52):

The letter indicates that the impairment rating is determined by considerations of loss of function as they relate to work performance rather than being diagnosis based: CB 52.

A critical aspect of the decision appears to be the fact that the plaintiff only had a limited impairment rating of 10 points. In order to qualify for a DSP, at least at that stage, the applicant must have had a physical, intellectual or psychiatric impairment of at least 20 points and a continuing inability to work: CB 53.

Section 94(2) SSA defined a “continuing inability to work” and s 94(5) defined “work”. They were in the following terms (CB 53-54):

The letter indicates that the medical advisor from Health Services Australia had given the opinion that the plaintiff was currently fit for full-time light to moderate work of at least 30 hours a week: CB 54. The letter indicated that the medical advisor had not assigned any impairment rating for the plaintiff’s claim of depression with memory loss “as there is no clinical evidence of depression or significant memory deficit”: CB 53.

The letter indicates that the plaintiff remained eligible for the Newstart allowance which he had been receiving: CB 54. It also alerted the plaintiff to the possibility of appealing to the Social Security Appeals Tribunal (SSAT): CB 54.

The second letter provided by the plaintiff was a letter dated 18 September 2001 from the Registrar of the SSAT informing the plaintiff that his appeal had been “decided”: CB 56. The letter does not actually indicate that the appeal was successful although I accept the plaintiff’s evidence that that was the case. Of some significance is the fact that the letter stated that “A detailed statement of reasons for the decision is enclosed”: CB 56. However, the plaintiff did not in his evidence provide that statement of reasons. No explanation was given as to why that was not provided. It is possible the plaintiff no longer retained the statement of reasons. However, he does not in his evidence state that that was the case.

On the basis that the plaintiff, from on or about 18 September 2001, commenced to receive the DSP, there is a question as to whether that precluded the plaintiff from engaging in any work whatsoever or at least in any un-remunerated work.

Mr Ellison SC submitted that the proper finding on the evidence was that the plaintiff had no relevant debt to Centrelink: T 8.39-44.

Mr Price submitted that, notwithstanding the difficulty in terms of any quantification, the plaintiff had a contingent debt that ought to be provided for: T 9.20-50.

Mr Price’s submissions regarding the DSP claim for provision for a contingent liability were ultimately embodied in the PSDSP as supplemented by him orally in final submissions.

Mr Price submitted that there was no reason why, as a matter of principle, a debt owed to Centrelink because of an overpayment of social security cannot form part of a plaintiff’s claim for provision.

He stated that family provision orders have been made in favour of plaintiffs having debts to Centrelink arising from overpayments in numerous cases. He cited the following cases (PSOS [20]): Colantuono v Colantuono; Colantuono v Colantuono [2009] NSWSC 1445 (Colantuono); Young v Outtrim [2011] NSWSC 391; Curran v Harvey [2012] NSWSC 276; In the Estate of Margaret, deceased [2012] NSWSC 1490; Curnow v Curnow [2014] NSWSC 896; Stone v Stone [2016] NSWSC 605; Hughes v Sharp [2017] NSWSC 962; McDonald v O’Connor [2019] NSWSC 261; Barbuto, Bradley v Barbuto; Barbuto, James v Barbuto [2019] NSWSC 1023.

Mr Ellison SC, on the other hand, cited authorities suggestive that such a claim might be denied.

In the context of family provision proceedings, Mr Ellison SC referred to Varnel v Heyes [2008] NSWSC 978 (Varnel v Heyes) at [42]-[48] per Macready AsJ.

Mr Ellison SC also made reference to the decision of McLaughlin AsJ in Fletcher v Furnance [2008] NSWSC 132 at [45]-[50] albeit that that case involved a claim under the Property (Relationships) Act 1984 (NSW).

In Varnel v Heyes, the applicant owed a debt to Centrelink arising in circumstances where there was a failure by her to disclose to Centrelink whilst in receipt of a pension, that she was in a de facto relationship. Associate Justice Macready observed that the fact that the deceased in that case had discouraged the applicant from reporting the matter was not an excuse. Rather, the debt that had arisen was his Honour found because of her breach of the legislation and that she had merely decided to take a chance for her own gain: at [45].

However, in Varnel v Heyes, there were particular matters that distinguish the case from the circumstances here.

One circumstance was that there was no doubt that a debt existed. In fact, the debt had been quantified and the evidence in fact disclosed that Centrelink intended to cover the debt by instalments out of the plaintiff’s pension payments: at [42]. Secondly, there was a question as to the attitude of Centrelink if the plaintiff received a lump sum payment from the estate. There was no specific evidence in relation to that. Nonetheless, his Honour inferred that Centrelink would require repayment from the debt such that a payment might defeat the object of any award for provision: at [42]. This then gave rise to his Honour considering the question of whether it was appropriate to make an award of provision if it might merely have the effect of relieving the public revenue of a charge without conferring a benefit on the applicant: at [43].

What ultimately occurred in Varnel v Heyes is that Macready AsJ made an award of a fund ($100,000 but on trust to be applied to supplement her expenses to rent premises or provide for other accommodation, which would not be her property that could be used to repay her Centrelink debt and the amount would not greatly affect her pension): at [47].

In making that award, his Honour considered that it would be for the plaintiff’s future benefit and not contrary to public policy but that she would still be required to pay for her “misdeeds” by reduction of her pension: at [48].

The authorities referred to by counsel each turn on their own facts. What can be said is that depending on the facts of any given case, the Court may make provision for payment of a debt. The fact that the provision (if any) goes to paying off a creditor may well amount to a benefit to an applicant: e.g. Diver v Neal at [1] per Allsop P (as his Honour then was) and at [69] per Basten JA (as his Honour then was), with whom Ipp JA agreed; Colantuono at [103]-[107] per Ward J (as the President then was).

The fact that an applicant has an entitlement to a pension is a matter which by force of the family provision legislation may be taken into account by the Court for the purposes of determining whether to make a family provision order and the nature of any such order. It is a consideration which sits across a number of the s 60(2) Succession Act matters which may be considered by the Court arising from, in any given case, circumstances including the age of the applicant, the applicant’s financial resources (including earning capacity) and financial needs both present and in the future: s 60(2)(g), (d). That includes consideration of whether the applicant in question receives a disability pension which is a factual matter which the Court can consider: s 60(2)(d), (f).

Mr Price accepted that insofar as Centrelink did not ultimately call on the payment of any debt that the plaintiff should not retain that component of the provision: PSOS [22].

Thus, the mechanism he proposed was that the defendant should hold a fund of money and pay the monies to Centrelink if Centrelink required repayment by the plaintiff and if it did not require repayment the defendants should retain the amount so held: PSOS [22].

The qualifying requirements for a DSP are set out in s 94 SSA.

I have set out above the provisions of s 94 addressed by the Review Officer in 2001.

Section 94 is a very detailed provision. It is currently in the following terms:

I raised a query as to the relevant date for considering the provisions of s 94. Mr Price indicated that the relevant provisions had not changed from 2005: T 76.19-44.

The only particular provision of s 94 which Mr Price addressed was s 94(1)(c): T 74-76.

Having for the purposes of this judgment accessed the provisions of s 94 SSA it is clear from reviewing historical versions that a more simplified form of s 94 existed in 2005.

There are nine historical versions of the SSA covering the 2005 calendar year.

The version of s 94 prevailing during the 2005 calendar year is in the following form:

Mr Price did not address each of the particular criteria for qualification under s 94.

As best I can ascertain it, the criteria were essentially as follows:

Mr Price directed my attention to s 117 SSA which provides how to work out a person’s DSP rate. He submitted that the applicable Pension Rate Calculator was calculator A at the end of s 1064 based on the fact that the plaintiff was not permanently blind and over the age of 21: s 117(a) SSA.

Using the methodology in s 1064-A1, Mr Price addressed issues arising under 12 steps within the relevant method statement table to attempt to calculate a potential repayment figure. Ultimately, he submitted that he could not proffer an accurate calculation: T 82.34.

The calculations which Mr Price said I should have regard to were those in [6] of the PSDSP being a base unindexed rate of pension for the 16 years from 2005 until 2020 of $9029.80 for each of those years (totalling $144,476.80) coupled with simple interest on those amounts at a rate of 7% totalling $106,190.45.

Thus, accepting that the calculation was not precise, the level of provision with which Mr Price appeared to be submitting ought to be, for want of a better description, quarantined was a sum of approximately $250,000 rather than the figure of $500,000 in the POS (see [21(c)]): T 82.10-42.

The figures that Mr Price had previously calculated on 15 May 2023 were based on a liability approaching approximately $400,000: the PSOS [17]-[18].

He submitted that a figure in addition to the calculated amount should be provided for having regard to the fact that under the provisions of the SSA there is a 10% fee on debts arising from a failure to provide information to Centrelink: s 1228B SSA.

No submissions were addressed to the provisions of s 94(1)(e) regarding the residency requirements. Nonetheless, that did not appear to be raised as an issue in the letter of the Review Officer in 2001 and I would be prepared to proceed on the basis that there was no relevant issue that the plaintiff satisfied at least one of the relevant residency requirements under s 94(1)(e). Clearly, it was relevantly accepted that the plaintiff had some form of physical impairment and was over the age of 16. There is no suggestion that the plaintiff was participating in some form of supported wage system.

Thus, the critical issues regarding qualification for a DSP appeared to be the questions of whether:

No submissions were addressed to the issue of whether the plaintiff’s impairment in 2005 was of a level 20 points or more under the impairment tables.

No submissions were addressed to the question of whether any entitlement to a DSP is reviewed in any particular way. There is a question as to whether once an applicant qualifies for a DSP that qualification holds or is effective for a certain period of time or whether it is reviewed in any particular way.

I consider those to be important (and perhaps even critical) questions bearing upon the plaintiff’s claim for provision in relation to the contingent liability.

Mr Price submitted that the fact that the plaintiff was not formally paid for the work in the tobacconist business did not ameliorate concern regarding a potential payback as the relevant test focussed upon whether there was an impairment of sufficient significance (20 points or more under the impairment tables) such as to amount to a “continuing inability to work” as defined: T 10.

Quite apart from the issues regarding qualification for the DSP, it would be relevant to know in relation to the definition of “continuing inability to work”, what is the significance of the referenced two-year period and whether the DSP is reviewed after that time. It would be relevant to know what provisions of the Social Security legislation or Centrelink policies or practice would trigger a form of disqualification of the plaintiff to receipt of the DSP and how that is assessed or treated by Centrelink.

The evidence is entirely silent as to that.

In the plaintiff’s first affidavit, there was a remarkable vagueness regarding the plaintiff’s evidence in respect of the pension.

I note:

No information was provided by the plaintiff in his second affidavit regarding the matter. The plaintiff was similarly vague in his final affidavit. Whilst disclosing the fact that he had received no contact from Centrelink regarding the matter, he did not disclose what, if any, efforts he had made to obtain any such information from Centrelink: CB 397[11].

Apart from the vagueness of the plaintiff’s evidence that I have just mentioned, there was simply a lack of detail which would have assisted the Court in being able to make a determination as to whether or not it was appropriate to make provision for the contingent liability. I note that there was no disclosure by the plaintiff in relation to what information he had provided to Centrelink in relation to the initial application for a DSP. Even if the plaintiff could not recall what information he had provided to Centrelink or further details of any of the matters that I have referred to above, the plaintiff could have signed a relevant authority either to his own solicitors to enable the obtaining of such information or possibly, had they requested, provided a signed authority to the defendants’ solicitors.

From the time of the plaintiff’s first affidavit until the hearing, the plaintiff had a period of at least 20 months to provide the Court with detailed information regarding the contingent liability or to obtain information from Centrelink which could be provided to the Court to clarify the position.

I consider that there is least some imperative on the part of the plaintiff who seeks provision for a particular financial need (as distinct from a more generalised claim for financial advancement) to come to Court with the best information the plaintiff is able to provide in relation to that: T 50.

Mr Price accepted that as a matter of general principle that was appropriate but submitted that it was in neither parties’ interests to, in effect, “poke the sleeping bear”: T 50.31-33.

I indicated that quite apart from the question of whether any such provision ought to be made for the plaintiff to cover the contingent liability that there needed to be some clarity around timing so as to bring the matter to a finalisation in an acceptable period of time.

In this regard, I suggested during the course of Mr Price’s submissions that any provision for the so-called contingent debt should be premised on at least two terms or conditions, namely:

In relation to the question of terms, Mr Price indicated:

Mr Price, though properly acknowledging that provision should not be made for any Centrelink debt if there was no obligation to repay, did not at least initially in his submissions suggest any mechanism to the Court that might have the effect of bringing the matter to a head: POS [21(c)]; T 50.37-42. However, I expressed concern that it would not be ideal for an amount of $500,000 to be left almost sterilised as it were without there being some mechanism for bringing finality to the issue of whether there was any such contingent liability: T 49.41-50; T 50.44-51.3.

Mr Price submitted that that concern could be addressed by making a term of any order for provision that the money be held for a particular time and otherwise invested so as to maintain its real value and that at the end of a designated period, if there had not been any demand or other action by Centrelink in respect of repayment then the defendants could retain the money including whatever income had been generated by it: T 51.10-17. Whilst I accept that that is a possibility, at least at that point in the case Mr Price did not proffer any particular timing that may be an adequate designated period.

I indicated that if I were to make any such order, apart from attaching to such order a term that the plaintiff expeditiously pursue a determination of the question of whether a contingent liability arises by reason of a payback that I would need to be persuaded regarding the appropriateness of the length of any designated sunset period: T 52.7-17. I noted that there was an absence of evidence regarding if and when Centrelink might act and that rather than me simply just make up a period of time whether it be six months, nine months or a year of leaving such a fund set aside, I would need to be persuaded regarding the appropriateness of a period of time: T 52.12-17.

Mr Price indicated that he would need to obtain some instructions but did not see as a matter of principle any reason why there could not be some time frame specified for events to occur, though noting that there would obviously need to be some debate about the events: T 52.25-31.

The claim for a fund in respect of the contingent liability was pressed in effect as an all or nothing amount in respect of this discrete area of provision sought: T 52.33-37. Ultimately, in final submissions, when the issue was taken up again, Mr Price indicated that an appropriate period of time may be to tie the provision to a sale of the Bringelly property but in the context of a longer-term sale intimating a period of 2 to 3 years: T 88.31-89.5.

The plaintiff addressed specifics of his claim for provision in each of his three affidavits.

In his first affidavit, the plaintiff indicated that he needed sufficient monies to provide accommodation for himself, to pay for his living expenses and to guard against the contingencies of life: CB 29[79].

In relation to accommodation, the plaintiff identified in his first affidavit accommodation needs as being a 2-to-3-bedroom house that was sufficiently close to shops and medical services (given his health issues) near the Bringelly area: CB 29[81].

The plaintiff gave examples of three properties that he stated would be suitable for his needs being:

In relation to his accommodation, the plaintiff in his final affidavit stated as follows (at CB 395[5]-[6]):

The plaintiff provided in the final affidavit updated examples of properties that he stated would be suitable for his needs: CB 396[7].

In summary, the properties were as follows:

The plaintiff was cross-examined regarding his requirements for accommodation.

The tenor of the cross-examination did not seemingly challenge the claim of the plaintiff to have some form of accommodation provided to him outright rather than in the qualified form provided for under the Will in which a fund is to be set aside in terms giving the plaintiff use and occupation of property up to the value of $1 million but not outright ownership.

I have mentioned that there was cross-examination regarding the change in the plaintiff’s evidence as between his first affidavit and his final affidavit as to the size of accommodation he was seeking.

At some point after the deceased’s death, the plaintiff purchased a Doberman: T 34.31-35.22. The first particular reference to the fact that the plaintiff has a Doberman appeared in his final affidavit. The plaintiff was unable to recall in cross-examination when he purchased the dog: T 34.42-45.

Mr Ellison SC approached his cross-examination in this regard by commencing with the plaintiff’s initial evidence of indicating that he sought provision for a 2-to-3-bedroom house as per his first affidavit: T 31.

When asked as to why he needed a 2-to-3-bedroom house the plaintiff’s response was “Because that’s the lifestyle that I had with my wife, a big house, I’m used to that”: T 31.25-27.

The cross-examination proceeded and the plaintiff indicated that in respect of a three-bedroom property (assuming the plaintiff slept in the first bedroom) that he would keep “all my stuff” in the second bedroom and that the third bedroom would be used if somebody visited take him and stayed as a place for that person to sleep: T 31.29-39.

The plaintiff was questioned regarding the location of any property that might be required for his accommodation. Mr Ellison SC suggested that the largest closest town to Bringelly was Campbelltown being a place where there were a lot of medical specialists and a large hospital: T 31.48-32.29. It is unclear whether the questioning regarding that was intended to suggest that Campbelltown was a preferable location. In any event, the plaintiff identified Oran Park, Gregory Hills, Harrington Park and Harrington Grove as being closer locations to the Bringelly property: T 31.48-32.18.

The plaintiff also accepted that Narellan was a place where he might like to live in a house because it was nearby (to the Bringelly property): T 32.31-33.

The plaintiff was questioned about the properties he identified in his final affidavit. He accepted that he had not visited any of those properties: T 35.31-44.

The plaintiff was questioned as to why, in his final affidavit, he referenced a need to have a property with four bedrooms as distinct from a 2-to-3-bedroom house which he had identified in his first affidavit.

He indicated that it was because he needed to live comfortably, and it was more spacious and that a property without that many bedrooms felt more like a box: T 35.46-36.10.

When he was probed regarding the change of position of initially identifying that a house with 2 to 3 bedrooms would be suitable to wishing for a four-bedroom property he referred to what was described as “mentality changes”. When I asked him to elaborate on what that meant he indicated that a house with two or three bedrooms felt too small and that a house with four bedrooms would allow him to move around the house better. He indicated that if he had two garages that would allow him to store things that he did not normally use in one of the garages and that he could keep his motor vehicle in the other garage: T 36.17-36.

He identified the things that he might keep in the second garage as items he might need for house maintenance such as mowing the lawn, gardening and tools for repairing items around the house. That was in distinction to items that he proposed for the second bedroom which indicated he would like to use as his office: T 36.46-37.10.

When challenged as to whether he needed any gardening tools on the basis that he had indicated that he was no longer physically able to manage maintenance such as gardening, mowing and gutter cleaning and that he might be getting someone else such as a handyman or tradesman who would be doing gardening and gutters and work around the house, he nonetheless indicated that he would be keeping his tools and needed a place to put them: T 37.16-38.10.

It was suggested to him that his reference to Oakdale as a possible location was not ideal because it is a semi-rural area compared to Bringelly and further away from shops, facilities and medical practitioners than Campbelltown for example. He accepted that: T 38.50-39.44.

Mr Ellison SC provided the plaintiff with a bundle of 15 pages of properties suggesting that they constituted properties which were in areas where the plaintiff might like to live (close to Bringelly) and that all appeared to be houses with yards with two or three bedrooms and (most had) a garage and suggested that the properties in that bundle (which became Exhibit D1) were much more realistic for what the plaintiff might need than the properties he had identified in his affidavit. The plaintiff apparently accepted that proposition although stated that the properties that he put in his affidavit were new and not old which perhaps was a response to Mr Ellison SC’s suggestion that if he were to purchase a bigger property, he would have to maintain it: T 40.24-41.41. Not all of the properties in Exhibit D1 self-evidently had yardage: e.g. pages 4, 10-11, 15.

The plaintiff did not accept that the property identified at Narellan Vale on page 8 of Exhibit D1 was suitable disputing that it was not a good suburb.

The plaintiff accepted that as he aged, he might have to move into a smaller house: T 42.3-4.

The plaintiff was presented with another bundle of documents comprising six pages being a combination of two-bedroom, one-bathroom one-car garage duplex semi-detached properties, a three-bedroom townhouse, a three-bedroom house and a two-bedroom house. The plaintiff seemingly disputed that the duplexes and townhouses were suitable on the basis that he “would not like to live right next to the neighbours, that's why I'm asking for a house”: T 41.47-42.22. The further bundle became Exhibit D2.

The plaintiff indicated he would require provision to pay rates, insurance and maintenance outgoings in respect of any property purchased.

In his first affidavit, the plaintiff provided details regarding council rates in respect of the Run-O-Waters property and some figures in relation to properties in the Narellan and Mount Annan area. He also provided details of water rates for the Sanctuary Point property: CB 30[82(c)]. Additionally, he gave figures for home and contents insurance at a cost of $2000 per year based on replacement of a house at $400,000, replacement of contents at $20,000, and an excess of $500. In relation to ongoing maintenance, he estimated a figure of $1200 per year: CB 30[82(c)]. In relation to council rates, it appeared the plaintiff estimated a figure of approximately $1000-$1250 per annum: CB 30[82(c)]. Figures for the water rates in relation to the Sanctuary Point property were stated as being for the first quarter of 2021, approximately $1371 per annum: CB 30[32(c)].

The plaintiff claimed that his estimate in his first affidavit of the costs of ongoing maintenance of a property of $1200 per year he now considered to be too low taking into account preventative electrical and plumbing maintenance, service of air-conditioners and gas appliances and the like. He states that he is no longer physically able to manage maintenance of the property by gardening, mowing and gutter-clearing. He estimated the costs of maintenance would be approximately $3000 per year: CB 396[8].

In his first affidavit, the plaintiff indicated that he required a new vehicle as his current vehicle was old and repairs would not be cost-effective. He made reference to a printout of a Toyota Hilux Rugged X (4×4) Dual Cab utility vehicle costing approximately $69,990: CB 29[82(a)], CB 140.

In the plaintiff’s second affidavit, he indicated that his need for a motor vehicle could be met by the lease of a vehicle at a particular value so that the value is maintained and then he can change the vehicle as his needs change: CB 325[38]. The plaintiff annexed a quote for a novated lease for a motor vehicle being a type of Toyota four-wheel-drive with a purchase price of $50,000 over a lease term of five years: CB 325[39], 331-332.

The plaintiff was cross-examined regarding his claim for the vehicle. He indicated that he needed to replace his existing vehicle which was not in good condition: T 32.37-39.

It was suggested to the plaintiff that he did not need a four-wheel-drive. He denied that indicating that he wished that because he felt safer on the road: T 32.35-41. When questioned why the plaintiff needed a Dual-cab utility instead of a sedan the plaintiff indicated that that was because he had always used a utility and he accepted that he was not intending to become a tradie or a handyman: T 32.44-33.16.

The plaintiff’s evidence regarding a novated lease was curious. He was asked in cross-examination whether he knew what a novated lease is to which he responded that he did not know: T 34.26-29. I note that when affidavits are prepared, particularly for people for whom English is not their first language, care should be taken to ensure that words that are incorporated into the affidavit are words that are clearly understood by the deponent.

A further component of the plaintiff’s claim for provision was for personal and household expenses including barbers, clothing, footwear, mobile phone, electricity, internet access, fishing licenses and equipment, and updating and replacement of household contents. He estimated that figure as being $15,000 per annum: CB 30[82(d)].

In his final affidavit, the plaintiff indicated that the figure that he had provided in his first affidavit regarding personal and household expenses as being $15,000 per year was an underestimate, on the basis that he indicated he spent all of his combined pension income ($31,925.20) on household and personal expenses: CB 397[10].

The plaintiff indicated that, in his prior affidavits, he had failed to include an estimate of costs for gas for gas appliances which costs he estimated as being approximately $1,000 per year: CB 396[9].

The plaintiff indicated in relation to household items that he “will require electrical, furniture and household items” and anticipated the cost for these new items to be $30,000: CB 397[15].

The plaintiff was cross-examined about his expenses and criticism was made of the fact that he had not given any breakup of how he spent his income: T 38.17-28. In circumstances where the plaintiff’s income is essentially pension income and he is not spending thousands of dollars a month; I do not consider that it was necessarily important for the plaintiff to provide any breakup of his actual expenditure of income.

He was asked about his omission of the costs of gas appliances, and it was asserted that he had not given the Court any calculation of that amount. His answer suggested that he was at cross purposes with the cross-examiner and the point was not pursued: T 38.12-15.

The plaintiff was also questioned about the estimate of $30,000 for the cost of new electrical, furniture and household items. He indicated that his lawyer had done the calculation for that, and he had agreed with it: T 38.30-36. The plaintiff indicated that in any move to accommodation away from Bringelly he would need to live somewhere where he had “all the facilities such as doctors and shopping”: T 39.30-33.

In his first affidavit, the plaintiff indicated that he would need provision for medical and dental expenses not covered by Medicare.

The plaintiff indicated that he suffered from arthritis, back pain, neck pain and depression and anticipated an increasing need for medicines and the services of medical practitioners including a physiotherapist, a podiatrist, a dentist, a chiropractor and a counsellor, psychologist or psychiatrist: CB 29[82(b)]. He provided documentation relating to an estimate of health fund premiums with AHM by Medibank costing approximately $230 per month: CB 29[82(b)], CB 187-195.

In his second affidavit, the plaintiff annexed another quote for health insurance with Medibank being cover described as “Medibank Gold Ultra Health” cover at a figure of $637.50 monthly: CB 329[46], 335. The extent of the cover is otherwise described (CB 336) and an indication given of the “Extras services” that a policy holder could claim for along with the limits and waiting periods that apply: CB 339-340.

I have addressed the evidence submissions in the context of this above. I address the claim for provision in respect of this below.

Overall, I find that the provision for the plaintiff is not adequate for his proper maintenance and advancement in life.

The strength of a claim of a surviving partner varies with and depends upon the circumstances of each case: e.g. Marshall v Carruthers at [63] per Hodgson JA.

I find that there was not a legal marriage in the sense of the religious marriage having been registered for the purposes of the Marriage Act.

I was not provided with any evidence as to how an Islamic marriage may be terminated, so as to distinguish it from a de facto marriage which may be terminated immediately by the will of the parties.

The absence of evidence of the content of any declarations or promises at the time of the marriage ceremony does not per se enable me to conclude as to whether there was a formal and binding commitment to mutual support “through good times and bad”: see Marshall v Carruthers at [63] per Hodgson JA.

Nonetheless, despite the fact that there was no evidence as to what if any promises were exchanged in the ceremony, I would be prepared to infer from the fact that such a ceremony took place before witnesses and the fact that it was a religious ceremony that there was a solemnity to the occasion and some indication of a formal and binding commitment. That is so, even if the marriage did not legally constitute a valid marriage for the purposes of the Marriage Act.

In assessing the plaintiff’s claim, in the absence of evidence from the parties assisting the Court as to the precise circumstances of the marriage ceremony, I proceed on the basis that there was a long-term religious marriage relationship between the plaintiff and the deceased evidenced by a sufficiently formal and binding commitment as to have given rise to a form of marriage ceremony for the purposes of Sharia Law.

I accept on the whole that the plaintiff had a good and loving relationship with the deceased. The relationship subsisted for a little over 24 years (July 1996 to August 2020). Of that period, they were married for approximately just under 23 years. The marriage and relationship subsisted for a long period of time.

The deceased’s estate is on any view of it a large estate.

The plaintiff has meagre resources. He has no real property registered in his name. He was dependent upon the deceased for the provision of accommodation. His income for the overwhelming majority of his relationship with the deceased has been pension income and he was dependent upon the deceased to supplement that income. He currently has meagre assets of minimal worth.

The plaintiff’s identified needs at present and for the future include accommodation and various other household and living expenses.

I reject Mr Ellison SC’s submission that the trust fund provision covering accommodation for the plaintiff in the last Will is appropriate. Mr Price submitted, and I accept that the provision of outright accommodation for the plaintiff would give him a measure of dignity but more importantly a degree of independence: Hertzberg v Hertzberg [2003] NSWCA 311 at [35] per McColl JA.

The particular inadequacy of the accommodation provision in clause 4 of the deceased’s Will is that there is no flexibility which might allow the purchase of an alternative property should the plaintiff as he ages wish to move accommodation.

I accept that the plaintiff contributed in a significant way to the acquisition, conservation and improvement of the deceased’s estate. I accept that he provided either the purchase price or a substantial part of it for the Run-O-Waters property. I accept that the plaintiff worked in the tobacconist business at the Rosemeadow shop for a not insubstantial period of time for at least a period of five years (2005-2010) and in the Liverpool shop for a further approximately four years (2013-2017). He was not paid any specific wage for that although the deceased provided a supplementation to his pension income with an amount of $300 a week: CB 290[29].

The plaintiff assisted in and around the house and I accept that he assisted in maintaining it in the manner that he describes.

The plaintiff has no superannuation and no general fund on which to fall back upon.

The plaintiff contributed to the deceased’s welfare by being a loving husband and companion.

Whilst there was some evidence from the plaintiff suggestive that the deceased intended that he receive half of her estate, the evidence does not disclose that any application has been made by the plaintiff to seek to rectify the deceased’s Will. I proceed on the basis that the deceased’s testamentary intentions for the plaintiff are those that appear in the final Will.

The case is not a case in which any of the deceased’s children who are the other beneficiaries of her estate are competing in any relevant financial sense against provision that would otherwise be appropriate to award to the plaintiff.

I consider that the provision for the plaintiff in clause 4 of the final Will is also inadequate in the sense that it does not provide any separate fund for the plaintiff for the contingencies of life. The so-called “surplus funds” referenced in clause 4 after the purchase of accommodation are not made separately available for the plaintiff but rather only to be used to pay him the income derived from the separate funds.

The estimate of an amount of provision is not necessarily tied to a demonstration of how much the plaintiff requires to live on. The jurisdiction is not solely needs-based, but by reason of some of the factors specified in s 60(2), plainly also contributions-based: Steinmetz v Shannon at [132].

Further, it may be in some circumstances that the style of living to which a surviving spouse may be said to have been accustomed during the lifetime of the parties may be lower than the standard of living which is her or his proper due after the death of the deceased: Aroney v Aroney (Supreme Court (NSW), McLelland J (as his Honour then was), 26 July 1988, unrep) (Aroney v Aroney) at 6 (a widow’s claim).

The plaintiff addressed his claim for provision by reference to a requirement for accommodation and he identified particular matters for which he would require cash outlays and other matters for which he would require income sufficient to cover recurring expenses.

In light of that, I propose to discuss those matters. However, apart from rejecting the claim for a particular fund in relation to the DSP contingent liability (see below), I do not propose to award provision by reference to discrete amounts tied to accommodation or otherwise.

Whilst a Court frequently justifies a particular family provision order by reference to what it assesses to be an applicant’s financial needs, it is usually a matter for the applicant how he or she uses a provision ordered: Strang v Steiner [2019] NSWCA 143; (2019) 19 ASTLR 330 at [186] per White JA citing Lloyd-Williams v Mayfield at [17].

The accommodation the plaintiff has identified has varied to a degree as between his first affidavit and final affidavit. Whilst the plaintiff was challenged regarding whether he “needed” a four-bedroom property and whether he “needed” a two-car garage, I consider that having regard to the totality of factors I have addressed including the relationship as between the plaintiff and the deceased, his contributions, and the size of the estate, it would not be appropriate to take a stinting approach to accommodation.

In the plaintiff’s final affidavit, he indicated that he had lived in a house of reasonable size with space around it for over 20 years, including a pool and several bedrooms and did not wish to be confined to a small property where he was forced into close proximity with neighbours such as a townhouse or a unit. He indicated that he had always had pets and would need a backyard for the animals to exercise: CB 395[5].

The plaintiff did not depart from that evidence even though he was tested on it in cross-examination.

Part of the cross-examination revealed that the plaintiff had not inspected the particular properties he identified in his final affidavit. On the particular facts here, I did not regard that as being of great moment. The plaintiff was not, as I understood his evidence, identifying the properties referred to in his final affidavit as being specific properties which he wished to purchase. Rather, he was providing updated examples of properties that he regarded would be suitable for his needs: CB 396[7]. The properties were four-bedroom properties. They varied in size from approximately 520 m² to just under 1000 m². The price range varied from $1.1 million to $1.35 million.

An applicant’s expression of a preference for a proposed expenditure, if the preference is soundly based, informs what is “proper” maintenance (or advancement) for the applicant: Steinmetz v Shannon at [32] per White JA citing Sgro v Thompson at [74].

I reject the submission of Mr Ellison SC that it might be appropriate to consider framing provision for the plaintiff’s accommodation in the form of a portable “Crisp” order: DOS [4.28].

Mr Ellison SC, in final submissions, persisted with the submission that a form of Crisp order might be appropriate provision for the plaintiff. He submitted that there was no evidence that there was any interference by the defendants in the plaintiff’s lifestyle and that the plaintiff had not stated that he did not wish to be beholden to the defendants and did not get on with them: T 84.4-9.

I doubt that submission accurately reflects the reality of the relations between the plaintiff and the defendants. I have referred to the plaintiff’s evidence above regarding the defendants’ discussions with him after the deceased’s death regarding his claims on the deceased’s estate. I accept that there is clearly some degree of tension in the relationships between the plaintiff and the defendants, and without attributing any blame, I consider that it is not ideal that the plaintiff have ongoing ties with the defendants in managing a fund for his provision.

Mr Ellison SC accepted the possibility that if a Crisp order were to operate that it might persist for a long time, in his words, “for ten years at least, may be more”: T 84.29-30.

Whilst there are some circumstances in which some degree of ongoing interaction as between the plaintiff with the defendants managing a Crisp order fund may be able to be limited by a mechanism of a mortgage (as noted by Mr Ellison SC: T 84.30-34), I do not accept that that is appropriate in this case.

Apart from accommodation provision the plaintiff identified particular matters for which he would require cash outlays and other matters for which he would require income sufficient to cover recurring expenses.

In relation to particular cash outlays the matters identified by the plaintiff were:

Whilst the plaintiff was challenged in relation to his claim in respect of those items, I do not regard the claims in respect of them as being unreasonable. In relation to the vehicle the plaintiff indicated that he always used a utility.

Mr Ellison SC submitted that the plaintiff’s claim for furniture and appliances in the sum of $30,000 was flawed because there was no “breakup” of the details regarding that and that it was “just a figure suggested by the solicitor”: T 84.3-4.

The plaintiff’s evidence was that he in fact agreed with the solicitor’s figure. It is of some assistance for the Court to be provided with some detail regarding claims for furniture, appliances and household items. However, the sort of evidence that might be required will vary in the circumstances of any particular case. If there is a very small estate with competing claims for limited resources, it might be appropriate in such circumstances to expect some more particular detail.

However, as the plaintiff is a surviving spouse of a marriage well over twenty years, the estate is a large estate where there are no seriously competing financial claimants, I do not regard the plaintiff’s reference to a figure of about $30,000 which might be required for furniture, appliances and household items, as being unreasonable or requiring more intense interrogation.

The plaintiff’s evidence is that he spends all of his current income ($31,925.20) on household and personal expenses: CB 397[10(b)].

The plaintiff indicated that his initial estimate of $15,000 per year for personal expenses was an underestimate, implying that the figure is at least double that having regard to the fact that he spent all of his current income ($31,925.20) on household and personal expenses.

The plaintiff’s specific claims in respect of his requirements for income to cover recurring expenses were essentially as follows:

The plaintiff’s figures for council rates and water rates were clearly generalised indicative figures rather than specific to any actual property that he might purchase.

I refer to the above figures not for the purpose of attempting to precisely calculate the plaintiff’s recurring expenditure but rather, for the purpose of giving a broad rough indication of the types of expenses and potential cost of expenses.

Noting that I am not attempting to achieve any precise calculation, I make the observation that if one totals the plaintiff’s final estimate for personal expenditure together with the assessment of property outgoing expenditure, gas costs and medical and dental insurance the figures exceed $48,000 per annum.

The plaintiff is aged 68 and within couple of months will be aged 69. He has various health issues which he has outlined although there was no particular suggestion that those health issues would materially act to cut short the life expectancy of a male of his age.

In materials handed up by Mr Price in his submissions regarding the DSP contingent liability, he made reference to the provisions of s 1064-G3 and the asset threshold for pension purposes. Essentially, he submitted, and Mr Ellison SC accepted, that if the plaintiff, being single (or strictly speaking not a member of a couple) owned a home and had other assets to the value of $250,000 then his pension entitlements would cease: T 86.15-87.44.

There was no evidence as to the effect of any order for provision upon the plaintiff’s continued receipt of the Chilean pension. Mr Price submitted that I would have to accept that the plaintiff would continue to receive the Chilean pension whatever the outcome of his claim for provision: T 86.3-10.

Mr Price accepted that if the plaintiff were to receive provision in the form of a home and a lump sum (assuming the lump sum was of the order as sought by Mr Price for the applicant) it is inevitable that the plaintiff’s entitlement to any Australian pension would be lost: T 85.33-38.

Mr Price clarified that the claim of $1.25 million for an amount for the plaintiff to live on (POS [21(b)]) was for the purposes of providing or supplementing income and also covering a form of general contingency fund component: T 57.45-57.9.

In any event, it is clear that the types or categories of provision described by Powell J (as his Honour then was) in Luciano v Rosenblum at 69 (accommodation, income and fund), are not necessarily mutually independent: Aroney v Aroney at 6.

Mr Price suggested that the figure of $1.25 million was appropriate at least in the context of a life expectancy in the order of about fifteen years: T 58.24-34.

He suggested that with a fifteen-year life expectancy, some of the million dollars would even if completely uninvested provide the plaintiff with an annual amount of $66,000 per annum (being drawn down on that capital sum) and provide him with a $250,000 buffer: T 58.38-49.

Mr Ellison SC, whilst not necessarily accepting that a particular fund was appropriate, appeared to contemplate that if some form of fund was given a figure of $100,000 or $200,000 may be adequate: T 85.6-13.

If the plaintiff required income in the order of $50,000 per annum, on the approach taken by Mr Price (without necessary investment of the funds) an amount of $50,000 per annum for fifteen years totals $750,000. A fund of $250,000 as an additional buffer (T 58.49) totals $1 million.

Clearly, there can be no exact precision regarding the size of any fund which might be appropriate for the plaintiff. Obviously, if the plaintiff were given a capital sum which was invested, he might need less than Mr Price has suggested if he was purely living on capital. On the other hand, as the plaintiff ages his particular living expenses might increase and go beyond his current estimates.

Mr Ellison SC submitted that there should be no order for provision framed to accommodate a contingent liability in respect of any DSP payback. That being because the plaintiff had not “come up to scratch” in proving and establishing that claim: T 84.34-36.

Ultimately, I am not satisfied that provision for the contingent liability ought to be made for the plaintiff.

First, I consider that the plaintiff has not discharged his onus of placing before the Court sufficient material to enable the Court to make a proper determination as to the issue of whether the so-called contingent liability might arise and the amount of any such liability.

I do not suggest that the plaintiff has deliberately misled the Court but I do consider that across the plaintiff’s evidence in his three affidavits he failed to provide sufficient basic information regarding his claim for provision for a fund to be provided to address the possibility of a contingent liability to Centrelink so as to enable the Court to appropriately assess the likelihood of the contingent liability being realised, if at all.

Secondly, I do not consider that I was provided with sufficiently adequate information to make a reasoned decision on the length of any sunset period.

I do not consider that tying the sunset period to a potentially longer-term sale of the Bringelly property is necessarily appropriate.

My instinct about the matter is that there ought to be a relatively prompt financial separation between the plaintiff and the defendants and other beneficiaries.

That is appropriate as generally in estate law the Court expects estates to be administered as reasonably quickly as might be responsibly appropriate as parties entitled to property ought to have that property distributed to them.

It is possible that the defendants and the other beneficiaries may wish to have the Bringelly property sold immediately.

Even if there was an immediate sale, I have no particular clarity about the amount of money to be set aside to cover a DSP contingent liability. In any event, the notion that the fund might be invested in some way such that it maintains some degree of real growth whilst some (undefined) period elapsed to await an outcome on whether the contingent liability was realised is not really an ideal substitute for the beneficiaries simply having the capital sum to which they are entitled available to them.

Overall, having addressed the particular terms of s 59(1)(a),(c) and 59(2) Succession Act, and reviewed relevant s 60 matters which I have outlined above including but not limited to the plaintiff’s relationship with the deceased, his contributions, his limited resources, and the size of the estate, I consider that the amount of $2.5 million is an appropriate legacy for the plaintiff in lieu of provision provided for him in clause 4 of the deceased’s final Will.

In the above circumstances, I have determined that adequate provision has not been made for the plaintiff for his proper maintenance, education and advancement in life and I have indicated an amount of provision which I consider to be proper to be made for the plaintiff in lieu of the provision given to him in clause 4 of the last Will of the deceased.

Mr Price intimated that there will be some practical issues in the plaintiff needing some money to obtain or acquire some form of accommodation.

For that reason, having indicated the figure that I consider to be an appropriate amount of provision, I direct the parties to confer and to prepare short minutes of order to give effect to that finding including such if any orders as may be necessary for the payment of some immediate sum to the plaintiff to assist with any immediate transitional arrangements for his accommodation for example if the defendants wish to commence sale of the Bringelly Property.

My tentative view is that the appropriate costs order is that the plaintiff’s costs (calculated on the ordinary basis) and the defendants’ costs (calculated on the indemnity basis) be paid or retained out of the estate as the case may be.

In the above circumstances, the orders of the Court are: