Page v Page

1. [1]

   BASTEN JA: The appellant, Warren Anthony Page, was the fifth of six children; the late Stephen James Page, who took his own life on 3 July 2014, was the eldest. The deceased, aged 58 years at the date of his death, left his estate to his three children. There was no provision in the will in favour of his younger brother, or indeed any of his surviving siblings.

2. [2]

   On 23 February 2015 the appellant filed a summons in the Equity Division, seeking a family provision order in respect of the estate of his deceased brother. To obtain such an order, he had to satisfy the Court that he was an “eligible person”, in accordance with s 59(1)(a) of the Succession Act 2006 (NSW). The Act defines “eligible persons” by reference to six categories. The relevant category with respect to the appellant was identified in the following terms:

3. [3]

   So far as sub-par (ii) was concerned, the brothers were, as children, members of the same household. Accordingly, the appellant’s qualification to seek such an order depended upon whether he was, at any particular time, “partly dependent on” his elder brother.

4. [4]

   Because, in order to qualify as an eligible person, it was necessary for the appellant to establish that he fell within par (e) in s 57, it was also necessary for him to satisfy a further requirement set out in s 59(1)(b), namely that, “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application”.

5. [5]

   Pursuant to a judgment delivered on 6 September 2016, Hallen J concluded that the appellant was not an eligible person and dismissed his application. [1] The trial judge also proceeded to deal with the second requirement, in s 59(1)(b), but was not satisfied that there were factors which warranted the making of the application.

6. [6]

   The first ground of appeal, upon which it was necessary for the appellant to succeed in order to uphold his claim, challenged the first finding. The appellant also challenged the finding with respect to the criterion in s 59(1)(b). Because, in my view, the appellant has not established that he is an eligible person, it is not necessary to reach a final conclusion with respect to the second criterion. However, although I might have adopted a different route to the conclusion, the finding of the trial judge that the appellant had not satisfied him of that criterion was not in error, given the way in which the case was presented at trial. The appeal should be dismissed with costs.

7. [7]

   With respect to the criterion of eligibility, in my view the appellant failed on a proper construction of the statutory provision relating to dependency. In Petrohilos v Hunter [2] Hope AJA stated, with respect to the definition’s predecessor in the Family Provision Act 1982 (NSW):

8. [8]

   Questions of dependency, as between two persons, can arise in many different contexts, both factual and legal. As a factual matter, any relationship which involves co-operative activity can be said to give rise to mutual dependency; each person being dependent upon the other to perform their respective roles. However, the statutory context requires a more limited form of dependency, which gives rise to a statutory obligation to make provision from the deceased person’s estate for the proper maintenance, education or advancement in life of the dependant.

9. [9]

   The critical finding in the present case which was said to warrant a conclusion that the appellant was partly dependent on the deceased, over a period of approximately 18 months, was found within the following passage in the judgment of the trial judge: [3]

10. [10]

    The evidence as to how often the deceased performed this role was limited, as the trial judge explained in the surrounding paragraphs discussing the facts. For example, the deceased was at boarding school from April 1969 until October 1972. The evidence allowed no detailed findings in relation to 1973. Further, during this period the mother was living at home except for occasional holidays away from the family and work hours, which included Sunday nights. The judge was not satisfied that “the deceased continued in this role after about late 1973, to any great extent.” [4] The judge characterised the situation as not one “where the deceased could be regarded as having been in loco parentis.” [5]

11. [11]

    This last phrase is important; the obligation to provide for a child, including from one’s estate, may be described as primarily a parental obligation. Unless another person takes over those social, moral and legal obligations, there is no relevant relationship of dependency which would require provision from the estate of the carer. Thus, it would not be in accordance with social mores to expect a live-in nanny to carry a burden of providing for the children for whom he (or probably she) cared, whilst the parents (or at least one of them) were (or was) alive and responsible for the arrangements. The fact that there may be a commercial arrangement between the parents and the nanny would not prevent there being a relationship of dependency (in the broad sense of the term) as between the nanny and the young children. However, that kind of dependency does not qualify for the purposes of the definition of an eligible person because it carries with it no ongoing obligation to provide for the proper maintenance, education or advancement in life of the child or children.

12. [12]

    The same reasoning applies in relation to siblings. The fact that the eldest sibling (or sometimes the eldest female sibling) is given a level of responsibility for younger brothers and sisters does not create an obligation to continue to provide for their proper maintenance, education or advancement in life, at least where there is a parent or parents who maintain responsibility for the children and in fact provide for them. That kind of dependency is not the kind of dependency recognised by the definition of eligible persons, nor does the nature of the relationship change because it can be said that the children are partly dependent upon the eldest sibling.

13. [13]

    Were it otherwise, there would be a significant number of cases in which Pt 3.2 of the Succession Act, dealing with family provision orders, would become a younger siblings’ charter, allowing claims to be made against the estate of an older sibling. In some cases, there may be numerous younger siblings who could make such claims.

14. [14]

    There are two primary bases upon which such implausible or absurd results could be avoided without adopting a limiting view of the concept of dependency in the Act. The first is the requirement that, in relation to this category of eligible persons (and two other categories potentially more remote than the primary categories of spouse or child of the deceased person), the court must also be satisfied that, “having regard to all the circumstances of the case … there are factors which warrant the making of the application”. [6]

15. [15]

    However, there is little to be said for the view that dependency should be accorded a broader construction than might otherwise appear appropriate, given the statutory context, because there is a further precondition to the making of a family provision order. That, in turn, is so for two reasons. First, as noted by McLelland J in Re Fulop Deceased, [7] “[t]he effect and utility of this subsection are obscure.” Secondly, as further noted by McLelland J, [8] the very vagueness of the condition is likely to render it something which can be determined only after all the evidence has been called, at least by the applicant, and thus not suitable to be addressed as a preliminary question. There is little to favour a construction of a precondition to an order which makes it uncertain and (at least in some cases) prevents an application being disposed of on a preliminary basis.

16. [16]

    This last factor is also relevant to a second objection, namely that there may be good discretionary grounds not to make a family provision order with respect to the estate of a sibling. However, that too will require that there be a full hearing before the preliminary question can be disposed of.

17. [17]

    It follows that the judge was correct to conclude, on the evidence in this case, that the appellant had not established that he was, for the purposes of a family provision order, dependent upon his eldest brother. Rather, at all material times, he was dependent upon his mother (his father having left the family and then died) for care and support. From time to time the mother’s responsibilities may have been exercised by the eldest sibling, but that did not render each and every one of the younger siblings dependent upon their eldest brother.

18. [18]

    This approach to construction of the eligibility criterion may be thought not to permit the widest reading which the fair meaning of the language will allow, in accordance with an established principle of statutory construction of “remedial” or “beneficial” provisions. That principle, it may be accepted, applies to legislation of the kind in question, as held by three members of the High Court in Barns v Barns. [9]

19. [19]

    However, legislation which is beneficial to one person may impose a burden on others; in such circumstances a critical issue may be to identify how far the principle extends. In Tullamore Bowling & Citizens Club Ltd v Lander, Mahoney JA explained: “that which the legislature enacts by its legislation is not policies but measures which carry policies into effect, to the extent to which, in the particular instance, it is intended that they be effected”. [10] The safer approach is to construe the legislation according to its evident purpose, allowing that, in some cases, this will not assist in resolving the boundary of an imprecise criterion. In this case, however, some assistance may be obtained from such an approach; the purpose of family provision orders is to ensure that those to whom a testator bore moral obligations of support are not disregarded. That principle imposes a constraint on freedom of testamentary disposition and may diminish the expectations of the beneficiaries under a will, who may themselves have been owed moral obligations of support. The analysis of the concept of dependency set out above seeks to determine the scope of the beneficial purpose in a manner which acknowledges the conflicting interests.

20. [20]

    It may, of course, be said that the process of reconciliation can be undertaken by the court and should not be precluded by a limiting reading of the eligibility criterion. However, the costs of such litigation, as revealed in this case, are rarely insignificant and often reach a high proportion of the value of the estate. Such litigation requires no encouragement from an unnecessarily loose approach to eligibility.

21. [21]

    In the event that the approach adopted above is erroneous, I am content to adopt the reasoning of Sackville AJA. In relation to the nature of the appeal, I agree with Leeming JA. [11]

22. [22]

    LEEMING JA: I agree with the orders proposed by Sackville AJA. His Honour’s statement of the background, evidence, findings and reasoning of the primary judge, with which the following assumes familiarity, have enabled me to be relatively concise.

23. [23]

    The appellant’s principal submission on appeal was based on the findings of fact at [156] (which is reproduced at [9] and [83]). It was said that “those findings of fact impelled the primary judge to make a finding of part dependence”. At this time, from around October 1972 until late 1973, as the other members of the Court have pointed out, the deceased had ceased attending school (where he was a weekly boarder) but had not yet commenced his apprenticeship, at least so far as the documentary evidence disclosed.

24. [24]

    At no stage in the oral or written submissions at trial was attention squarely directed to this particular period in time. Counsel appearing for the appellant at the trial had advanced a more ambitious submission, to the effect that for some six or seven years both before and after 1973 the deceased had been the “man of the house” in the family. The findings of primary fact made by the primary judge followed the approach adopted by counsel for the deceased, which was to reject a relationship of dependency in the period when the appellant was at boarding school, and also to reject a relationship of dependency after 1973 when he had started a TAFE course. However, that approach left a gap. Neither counsel’s submissions nor the findings of the primary judge focussed upon the shorter period from around October 1972 until late 1973.

25. [25]

    I cannot accept the principal submission advanced on appeal, namely, that the primary judge was “impelled” to find a relationship of partial dependency. Such a finding may have been available upon a consideration of all of the evidence. It is to be recalled that, somewhat unusually in this class of case, the appellant’s case was supported by the majority of his immediate family members, including his mother. I agree with Sackville AJA that the 14 month period was capable of being sufficient to sustain a conclusion of partial dependency for the purposes of s 57(1)(e)(i) of the Succession Act 2006 (NSW), especially in light of the beneficial reading which is to be given to the Act. However, such a finding was not inevitable based merely upon the limited findings made by the primary judge.

26. [26]

    On one view, that is sufficient to resolve the appeal. However, I am reluctant to take that course. Closely connected with the appellant’s principal submission, and emerging more clearly during exchanges when the appeal was heard than in the written submissions, is the proposition that there was error in failing to address a “jurisdictional” question which was capable of answering the threshold question of eligibility favourably to the appellant. Counsel for the respondent did not complain that this was outside the scope of the appeal, but rather sought to respond to it on its merits.

27. [27]

    The question which arises in order to resolve this aspect of the appeal, then, is whether and if so on what basis a failure to make findings in respect of a period capable of sustaining the conclusion of partial dependency in s 57(1)(e)(i), which had not specifically been sought by the parties at first instance, is reviewable in this Court on appeal.

28. [28]

    When the appeal was heard, the debate was focussed on what were said to be the particular categories of error listed in House v The King (1936) 55 CLR 499 at 504–505. Thus senior counsel for the appellant pointed to “reliance upon extraneous or irrelevant facts or circumstances” or alternatively the concluding words of the passage to the effect that the result was unreasonable or plainly unjust. Senior counsel for the respondent insisted that “My learned friend has got to bring it within one of the four grounds in House v The King”. With all due respect, I do not consider that this is the correct way to frame the inquiry.

29. [29]

    Familiar though it is, the entire passage from House v The King warrants reproduction:

30. [30]

    Two issues arise out of that passage in its application to this appeal. The first is that the principles in that passage are broader than were stated by the parties to this appeal. The second is that it is to be doubted whether those principles are applicable at all to appellate review of the failure to find partial dependency. I shall address each in turn.

The nature of House v The King review

1. [31]

   Contrary to the approach taken by both parties, the list of errors in the passage in House v The King is to be read as illustrative rather than exhaustive. Although there is regular reference in submissions in this Court to “error of the sort identified in House v The King” it is as well to recall that the list of errors in the judgment of Dixon, Evatt and McTiernan JJ commences with the sentence emphasised above, “It must appear that some error has been made in exercising the discretion”.

2. [32]

   The generality of the approach stated in House v The King is confirmed by what was said by Mason and Deane JJ in Norbis v Norbis (1986) 161 CLR 513 at 518 and again at 520, when discussing the restraint underlying the principles in House v The King in their application to a discretionary power based on an evaluation of what was “just and equitable”. Their Honours focussed attention upon the contestability of such decisions and the need for appellate restraint where there was a mere preference for a different result over that favoured by the judge at first instance “in the absence of error” on the part of the primary judge, or “in the absence of any identifiable error of fact or positive law”. Their Honours were distinguishing between the obligation upon appellate courts to decide appeals – “the facts as well as the law” – for themselves in accordance with Warren v Coombes (1979) 142 CLR 531 at 552 and the narrower class of case where error must first be identified before a potentially different approach to a “discretionary” order is taken. Their Honours said at 518–519:

3. [33]

   The same point was made by Dawson J (with whom Brennan J agreed), in Latoudis v Casey (1990) 170 CLR 534 at 559 (their Honours dissented in the result, but no member of the majority contradicted that proposition). It was also made more recently in this Court, in Norris v Routley; Routley v Norris [2016] NSWCA 367 at [63] (Payne JA, with whom McColl and Gleeson JJA agreed). Most recently, Bathurst CJ has said, with the agreement of Beazley P, Gleeson JA, Barrett and Beach AJJA, in Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr [2017] NSWCA 38 at [50]:

4. [34]

   Thus, the question is not whether one of the particular errors listed in House v The King is made out. The question, in cases where these principles are applicable in a civil appeal, is simply whether there is error. Such error may be explicit or, alternatively, inferred from the result.

The application of House v The King to applications under the Succession Act

1. [35]

   Singer v Berghouse (1994) 181 CLR 201 at 212 established that “the principles that govern appellate review of discretionary decisions” applied to the predecessor of the Act. It is important to see just what that decision held.

2. [36]

   Under s 9(2) of the Family Provision Act 1982 (NSW), a court was forbidden from ordering provision unless the court were first satisfied that the provision made to the eligible person was inadequate for his or her proper maintenance, education and advancement in life. This prohibition (referred to in the joint majority judgment as the “jurisdictional question”) was said not strictly to be a discretion but rather an evaluative question of fact. A contrast was drawn with the decision at the second stage, as to what provision should be made, which was “an exercise of discretion in the accepted sense”: at 211.

3. [37]

   Probably the majority of cases brought under the Succession Act are claims by spouses, former spouses, or children of the deceased person. Such claimants are “eligible persons” merely by dint of their relationship with the deceased: s 57(1)(a), (c) and (d). In such cases, the only substantial threshold question will be that posed by s 59(1)(c), namely, whether adequate provision for the proper maintenance, education or advancement in life has been made for the eligible person. It may be accepted that the reasoning in Singer v Berghouse in relation to substantially the same statutory language (notwithstanding the change in the structure of the legislation) entails that appellate review of the issue raised by s 59(1)(c) is confined to the principles applicable to discretionary judgments: see Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [6], [42] and [94]-[103].

4. [38]

   However, that is not this case. An order for provision may only be made if (a) as a former member of the same household, the appellant establishes that he was “at any particular time, wholly or partly dependent upon the deceased” and (b) that “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application”: s 57(1)(e)(i) and s 59(1)(b). These are both “jurisdictional” questions, in the sense that the application must be dismissed unless both questions are answered favourably to the claimant. However, they are different from one another. They are also different from the further question which arises under s 59(1)(c), which must also be answered favourably before an order for family provision is made.

5. [39]

   It is far from clear to me that appellate review of the finding of dependency is to be confined by the principles governing discretionary decisions in House v The King. The language used to describe the review of the discretionary power to sentence an offender does not translate readily to the review of a judicial determination of whether the person was at any time “wholly or partly dependent on the deceased person”. On one view the binary question of whether or not the appellant has demonstrated to the satisfaction of the court that he was wholly or partly dependent upon the deceased is an evaluative issue (albeit it is less obviously evaluative than the issue of whether inadequate provision had been made). Even so, it is difficult to apply the principles in House v The King to such a question.

6. [40]

   The fact that the issue of “dependency” is “jurisdictional” in the sense that it is a gateway to or element of the statutory scheme which a claimant must satisfy does not of itself compel the conclusion that review is to be conducted on the basis that there must first be a finding of error. Singer v Berghouse does not require such a conclusion. I think the better view is that the principles in House v The King are inapplicable to review of a finding of partial dependency.

7. [41]

   The structure of the Act is that partial dependency is an element of the definition of an “eligible person”, applicable to persons who were at some time members of the deceased’s household but who are not otherwise qualified through being (speaking generally) a spouse, a de facto spouse, a former spouse, a child or in a close personal relationship at the time of death. To the extent that an appeal is brought from a decision based on a finding or a failure to find that a person is an eligible person, then I see no reason why principles applicable to appellate review of exercises of discretion should play any part. Suppose for example the issue is whether a plaintiff is a child of the deceased, and turns on DNA evidence. Or suppose the question is whether the person is a former spouse, and turns on evidence of a foreign marriage. In both those examples, the appeal by way of rehearing lies to this Court pursuant to s 101 of the Supreme Court Act 1970 (NSW) and s 75A applies to the binary decision required by s 57(1)(c) and (d). Section 57(1)(e) is no different.

Resolution of the appeal

1. [42]

   The question then arises whether failing to consider whether to make a finding of partial dependency in relation to the period from October 1972 until late 1973, in circumstances when his Honour was not asked to make such a finding, is an error entitling review.

2. [43]

   If, contrary to my view but in accordance with the way the parties framed their submissions, review is confined by reference to the principles governing appellate review of discretionary decisions and it is necessary to identify error, there is much to be said in favour of the proposition that there is no error in failing to make a finding which was not sought by either party. However, on reflection, I do not consider that the fact that the primary judge was not asked in terms to make such a finding is dispositive. The finding of partial dependency which the primary judge was asked to make was for a longer period which included the period from October 1972 until late 1973, and I do not think it was necessary for counsel then appearing for the plaintiff to advance, as a fallback submission, that if his Honour were against the primary submission in relation to the periods during which the deceased was at boarding school or at TAFE, it was nevertheless contended that the 14 month intervening period was sufficient. All of the testimonal evidence as to this period was in contest at the trial. I have also had regard to the facts that the 14 month period was a significant length of time in the adolescence of the appellant, as well as being a natural period to consider separately, given that it marked the return of the deceased from boarding school, at a time when he was the only adult male in the large household. I consider there was error in failing to consider this period separately.

3. [44]

   If, as I consider to be the better view, the issue of partial dependence is determined on appeal in accordance with Warren v Coombes, then it may be that the identification of error above is unnecessary (this is not the occasion to address the various views expressed on this issue in Costa v The Public Trustee of NSW [2008] NSWCA 223, just as it was unnecessary to do so in Burge v Burge [2015] NSWCA 289 at [37]). Taking the approach most favourable to the appellant, the question reduces to whether the evidence adduced by the appellant entitles this Court to be satisfied that he was partly dependent upon the deceased in that period. I incline to the view held by Sackville AJA that it does not do so. However, I am conscious that the documentary evidence was relatively exiguous, that the appellant’s case was principally based on testimonial evidence of events some forty years ago when the deponents (save for the mother) were quite young and appears to have suffered from the fragilities usually attending such evidence, and that this Court lacks the benefit of seeing and hearing the testimony of the appellant and the other witnesses called at the trial. In those circumstances, I prefer to resolve the appeal on the final basis mentioned by Sackville AJA.

4. [45]

   As Sackville AJA points out, the appellant’s case based on there being factors warranting the making of the application would fail if the sexual abuse were limited to the four occasions to which the appellant had deposed in his sworn evidence at the criminal trial. That follows from concessions elicited during cross-examination and confirmed in re-examination of the psychiatrist called by the appellant to the effect that the initiating and maintaining factor of the appellant’s present illness was the sexual assaults of the offender, rather than the acts of indecency of the deceased.

5. [46]

   Only if some substantial wrong or miscarriage of justice has been occasioned can this Court order a new trial: UCPR r 51.53. If contrary to the findings of the primary judge there are factors warranting the making of the application by the appellant, it is only because his evidence at the criminal trial in 2000 was materially incorrect. That evidence was given in chief, in answer to open-ended questions, and maintained unequivocally in cross-examination. The appellant said that there had only been four acts of indecency by the deceased, and that he was absolutely sure that the deceased had never penetrated him. He said that there was “no chance at all” that he had given that evidence so as to try to show that the accused was the only person who had penetrated him. The appellant’s evidence was thus starkly inconsistent with the account sought to be given in the present litigation.

6. [47]

   There are possible explanations for the appellant’s contradictory recollections. However, despite the centrality of the claimed abuse by the deceased and the starkness of the conflict between the appellant’s evidence in 2000 and 2016, there was no evidence directed to explaining how the account sought to be advanced in support of the appellant’s claim under the Succession Act was to be reconciled with the acceptance of his evidence to the criminal standard by a jury in 2000. But a new trial could only succeed if it were shown that the basis of the prosecution in which the appellant was a principal witness was materially incorrect.

7. [48]

   Further, the appellant had, by the time of the trial in 2016, served a draft statement of claim seeking damages from the assaults he claimed to have suffered from the deceased, and it was not suggested that any aspect of the administration of the deceased estate stood in the way of such a claim. Thus, if what the appellant seeks is a public vindication so many decades after the event, and after the death of his brother – albeit with the attendant risks given his evidence in 2000 – then the dismissal of this appeal does not stand in the way of that course. I am conscious that it was said that such a claim would be a “futile exercise” because, as it was put, “it’s all notional estate”. As much may be acknowledged, but even so I am not satisfied, in the highly unusual circumstances of this case, that there will have been a substantial wrong or miscarriage of justice. It is on that basis that I agree with the orders proposed by Sackville AJA.

8. [49]

   SACKVILLE AJA: This is an appeal against orders made by a Judge of the Equity Division (Hallen J) dismissing a claim by the appellant seeking a family provision order out of the estate and notional estate of his deceased brother. [12] As the primary Judge remarked, the circumstances giving rise to the proceedings are tragic. [13]

9. [50]

   Much of the appellant’s case was based on his claim that the deceased regularly sexually abused him over a nine year period. [14] The appellant claimed that the abuse started when he was seven years old and continued until he was aged sixteen years and nine months. The appellant alleged that the sexual abuse perpetrated by the deceased included repeated acts of penetration. In addition, the appellant claimed that the deceased made him (the appellant) available for sexual abuse by the deceased’s friends.

10. [51]

    The deceased committed suicide on 3 July 2014, aged 58. The respondent is the deceased’s widow, the executrix named in the deceased’s will made on 30 October 2013 (Will).

11. [52]

    It was common ground before the primary Judge and on appeal that the appellant’s claim to family provision cannot succeed unless he satisfies two statutory criteria. He must show that:

12. [53]

    The primary Judge found that:

13. [54]

    Accordingly, the primary Judge dismissed the summons seeking a family provision order. In a separate judgment, his Honour ordered the appellant to pay the costs of the executrix on the ordinary basis and directed that insofar as the executrix’s costs are not paid by the appellant her costs should be paid out of the estate. [19]

14. [55]

    The two grounds of appeal on which the appellant relies are as follows:

15. [56]

    The appellant’s Notice of Appeal invites the Court, if it allows the appeal, to make an order for his provision out of the deceased’s estate or notional estate. Neither the Notice of Appeal nor the appellant’s written submissions identified any particular sum for which provision should be made. In oral argument, Mr Coleman SC, who appeared with Ms Clarke for the appellant, nominated $500,000 as a suitable sum.

16. [57]

    It was put to Mr Coleman that it would be very difficult for this Court to make the findings necessary to determine what provision (if any) should be made in favour of the appellant (assuming the appeal was allowed). Mr Coleman did not withdraw the submission that this Court should determine the claim, but acknowledged that if the appeal was allowed there might be no alternative but to remit the matter for a further hearing so that the necessary findings could be made.

Legislation

1. [58]

   Section 59 of the Succession Act relevantly provides as follows:

2. [59]

   Section 57(1) of the Succession Act states that “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person include:

3. [60]

   Section 60 provides as follows:

4. [61]

   A family provision order may be made in relation to the estate of a deceased person (s 63(1)). Such an order may also be made in relation to property that is not part of the deceased person’s estate but is designated as “notional estate” of the deceased person by an order under Part 3.3 of the Succession Act (s 63(5)). A family provision order may also be made in respect of property outside New South Wales (s 64).

Background

1. [62]

   The parents of the appellant and the deceased are James and Yvonne Page. [20] There were six children of the marriage of James and Yvonne, as follows:

2. [63]

   Yvonne and James separated in 1968. James died in 1970.

3. [64]

   Yvonne gave evidence in support of the appellant’s claim, as did Lyle and Neralie. Rodney swore an affidavit which was read in the executrix’s case.

4. [65]

   The deceased married in 1982 and remained married until his death. On 12 June 2015, his widow was granted Probate of the Will.

5. [66]

   Under the Will, the estate was left to the deceased’s three children and to his widow. No provision was made for the appellant.

6. [67]

   The deceased’s estate included assets in both New South Wales and Vanuatu. At the date of trial, the New South Wales assets were valued at $51,958 and the assets in Vanuatu at $379,429.

7. [68]

   The only eligible persons (other than the appellant) were his widow and three children. The effect of s 61(1) of the Succession Act is that the Court cannot disregard their interests as beneficiaries of the estate. However, neither the widow nor the children gave evidence of their financial circumstances and thus did not assert any claim on the deceased’s bounty, except as beneficiaries under his Will.

8. [69]

   It was agreed at the hearing in the Equity Division that the value of property that could be designated as notional estate was “at least $1.3 million”. The executrix accepted that if the appellant obtained a family provision order she would meet the amount due under the order.

9. [70]

   The appellant’s costs and disbursements to the completion of the three day hearing were estimated to be $115,696, excluding any uplift fee payable to his solicitors. The executrix’s legal costs and disbursements were estimated on an indemnity basis to be $230,536, a figure described by the primary Judge as “eye watering”. [21]

10. [71]

    The primary Judge made no findings about the appellant’s financial resources at the date of the trial. However, in his affidavit the appellant said that he had net assets of about $200,000 and a gross weekly income of $1,140. The weekly amount was made up of pensions from the Department of Veteran Affairs and the New South Wales Fire Brigade Service, an unspecified Centrelink benefit and rent from a property owned by the appellant.

11. [72]

    The pensions were referable to the appellant’s service with the Army (1981-1984) and with Fire Rescue NSW (1990-2007). He retired from Fire Rescue NSW in 2007 by reason of total and permanent incapacity.

Primary Judgment

1. [73]

   The primary Judge noted that it was not in dispute that between February 1969 (when the appellant was seven) and January 1974 (when he was thirteen), the appellant was subjected to a number of very serious sexual assaults by an adult outside the family. In June 2000, the perpetrator was convicted on all counts, including eight counts of buggery, and sentenced to a lengthy term of imprisonment. [22]

2. [74]

   As the primary Judge recorded, the appellant gave evidence at the criminal trial during which he was asked about the deceased’s conduct. The appellant said that over about a two year period, when he was aged between eleven and thirteen, the deceased had rubbed his penis on the appellant’s buttocks. The appellant denied on oath that during these assaults the deceased had penetrated him. [23] In July 2014, the appellant gave a signed statement to the police describing the deceased’s conduct in similar terms. [24]

3. [75]

   Despite his earlier statements, the appellant swore affidavits in the family provision proceedings alleging that the deceased had perpetrated a much more extensive series of sexual assaults on him. His Honour stated that: [25]

4. [76]

   The primary Judge referred to a judgment of the Victorian Court of Appeal observing that a family provision claim does not create an alternative means of obtaining compensation or damages for a wrong done to a person by a testator, but that the testator’s conduct may explain why the claimant has a particular need. [26] His Honour observed that whether the appellant had a financial need caused by the “vestiges of sexual abuse” perpetrated by the deceased was complicated by the established conduct of the perpetrator of the criminal assaults. [27]

5. [77]

   The primary Judge considered the appellant’s evidence at some length. His Honour made this assessment: [28]

6. [78]

   The primary Judge found that the appellant decided in January 2014 to confront the deceased about the alleged abuse “and seek restitution and compensation for the abuse”. [29] On 6 March 2014, the appellant sent a text message to the deceased as follows: [30]

7. [79]

   In his Honour’s view, this and other text messages were deliberate demands for money and included threats that consequences would follow if the demands were not met. [31] This was important in relation to the appellant’s credit and was also a matter relevant to assessing the appellant’s conduct before the deceased’s death. [32] Such conduct could be taken into account in considering the appellant’s claim for relief. [33]

8. [80]

   There was no dispute that the appellant had been a member of the household of which the deceased had also been a member. [34] The issue for determination was whether the appellant had been “wholly or partly dependent on” the deceased within the meaning of s 57(1)(e)(i) of the Succession Act.

9. [81]

   The authorities established that: [35]

10. [82]

    The primary Judge made the following findings:

11. [83]

    The primary Judge continued as follows: [42]

12. [84]

    The primary Judge rejected the appellant’s evidence that he looked to the deceased for advice and guidance. On the contrary, the appellant had truthfully told a psychiatrist, Dr Jungfer, that he was “never close to” the deceased. [43]

13. [85]

    It followed that the appellant was not an “eligible person” within s 57(1)(e) of the Succession Act and that the proceedings had to be dismissed. [44]

14. [86]

    Although it was not necessary for the primary Judge to consider whether the appellant satisfied s 59(1)(b) of the Succession Act, his Honour did so. He referred at some length to the relevant authorities, noting that this Court recently stated that: [45]

15. [87]

    The primary Judge recorded the factors relied on by the appellant to warrant the making of his application, as follows: [46]

16. [88]

    His Honour rejected the appellant’s contentions, for these reasons: [47]

An eligible person?

1. [89]

   The appellant’s submissions on the appeal were straightforward. Mr Coleman’s primary contention was that the factual findings made by the primary Judge required the conclusion that the appellant had been partly dependent on the deceased during the period from April 1971 until the end of 1973. Mr Coleman relied particularly on the findings at [156] of the Primary Judgment which, for convenience, I repeat:

2. [90]

   Mr Coleman submitted that an additional reason for appellate intervention was that his Honour had taken into account an irrelevant consideration in rejecting the appellant’s claim of partial dependency. This consideration was said to be the finding that the appellant could have “survive[d]” without the deceased’s assistance. [48] According to Mr Coleman, it is not necessary, in order to establish that a person was partially dependent on another, that the first person would have been unable to survive without the other’s assistance.

3. [91]

   In addressing these submissions, it is necessary to take a number of matters into account.

4. [92]

   First, Mr Coleman accepted that the primary Judge’s conclusion that the appellant had not established that he was partly dependent on the deceased was an evaluative judgment based on the facts as found. Mr Coleman also accepted that the evaluative character of the decision requires the appeal to be governed by the principles that regulate appeals from decisions made in the exercise of a discretion. [49] On this basis, it is necessary for the appellant to demonstrate an error of the kind that vitiates the exercise of discretion. [50] Since the parties were in agreement that this approach should be taken in applying s 57(1)(e) of the Succession Act, it is not necessary to take the issue further in the present case.

5. [93]

   Secondly, Mr Coleman did not submit that the primary Judge misconstrued s 57(1)(e) of the Succession Act. The appellant’s argument proceeded on the basis that the primary Judge correctly stated the effect of the authorities construing s 57(1)(e) and its legislative predecessors.

6. [94]

   Thirdly, the Notice of Appeal does not challenge any of the findings of primary fact. The appellant’s written submissions seemed to suggest that his Honour might have made different findings as to the degree of support the deceased provided to Yvonne in the management and care of the younger children, particularly in the period prior to October 1972. In his oral submissions Mr Coleman did not apply to amend the Notice of Appeal and did not invite the Court to overturn any of his Honour’s findings.

7. [95]

   Fourthly, the appellant’s case on appeal was materially different to that at trial. At trial, the appellant’s case was that for a number of years the deceased had filled the gap left by the absence and death of his father and acted as the “man of the house”. In this role, so it was said, the deceased had assisted Yvonne in the care and support of the five younger children and had performed parental duties. Yvonne relied on the deceased to act as head of the house when she was not present which (on the appellant’s case) was often.

8. [96]

   The primary Judge rejected the key elements of the appellant’s factual case. Specifically his Honour found that:

9. [97]

   Mr Wilson SC, who appeared with Mr Bolster for the executrix, did not object to the appellant’s case being recast on appeal to rely on the findings actually made. Even so, it is necessary to bear in mind that the primary Judge made his findings in response to the case advanced by the appellant. The findings must be understood in that context.

10. [98]

    By way of example, Mr Coleman contended that his Honour placed too much emphasis on the finding that Yvonne had not abrogated to the deceased her parental responsibility towards the younger children. But the primary Judge made this finding in response to the appellant’s claim that in many respects the deceased had taken over the role of parent from Yvonne. The primary Judge was not implying (as Mr Coleman seemed to suggest) that the appellant could not have been partially dependent on the deceased unless Yvonne had abrogated her parental responsibility to the deceased. His Honour was merely rejecting the appellant’s contention that the deceased had taken over his mother’s role as the appellant’s parent.

11. [99]

    As has been noted, a person applying for a family provision order must establish that he or she is an “eligible person” within the definition in s 57(1) of the Succession Act. In the present case, the appellant had to establish that he is a person who was, at any particular time, wholly or partly dependent on the deceased (s 57(1)(e)).

12. [100]

    In interpreting this jurisdictional requirement, it is necessary to bear in mind that the High Court has characterised family provision legislation as “remedial in character and therefore to be construed so as to give the most complete remedy which its phraseology [permits]”. [54] Thus the Court should be alert not to place a restricted construction upon the legislation.

13. [101]

    No question of construction arises in the present case since Mr Coleman did not take issue with the primary Judge’s construction of s 57(1)(e) of the Succession Act or his Honour’s statement of the relevant principles. It is convenient to refer to these principles briefly:

14. [102]

    Because of the way the appellant’s case was presented at trial, the primary Judge did not clearly distinguish between the earlier period, during which the deceased was at boarding school (April 1971 to October 1972), and the later period (October 1972 until the end of 1973). On the facts found by the primary Judge the assistance provided by the deceased to the appellant during the first of the two periods fell well short of establishing partial dependency in the sense recognised by the authorities. There was no error in his Honour concluding that any assistance provided by the deceased to the appellant during this period did not enable the appellant to satisfy the definition of an “eligible person”.

15. [103]

    For the whole of the first period, except when on holidays, the deceased was a boarder at the St Vincent’s Boys’ Home. During term time the deceased was not at home on weekdays (except Friday evenings). Nor was he at home on Sunday nights, as his mother’s practice was to drive him to the school before commencing her shift at work. Therefore the opportunity for him to perform household tasks during term time was very limited.

16. [104]

    The primary Judge found that during the first period of eighteen months Yvonne worked on Thursdays, Saturday mornings and Sunday nights. [63] Yvonne gave evidence that she was at home at night, except on Sundays. It can therefore be inferred that while school was in session, the deceased was rarely at home without his mother being present. Indeed, the only time the deceased could have been regularly at home in the absence of his mother was on Saturday mornings. However, Yvonne’s evidence was that the deceased, like all her children, started work at Grace Bros as soon as he turned 15. That evidence may not have been correct, but if it was, the deceased would have been working from 9 am to noon on Saturdays and thus would not have been regularly at home during those hours.

17. [105]

    The terms on which the deceased was admitted to St Vincent’s Boys’ Home provided that “all holiday periods will be spent at such place or places as are decided by the Brother Director in his absolute discretion”. The evidence does not establish whether the Brother Director imposed limitations on the extent to which the deceased would spend holidays with his family at home. The primary Judge found that the deceased and his siblings spent part of the holidays with their grandparents and that the children usually went to The Entrance for two weeks with their mother. There are no findings that during holidays the deceased did anything other than the intermittent household and sibling-control tasks that might be expected of a 15 or 16 year old who is the oldest child in a family headed by a single parent. To the extent that the deceased performed the tasks identified in the Primary Judgment, it must be remembered that the appellant was only one of the deceased’s five siblings. There is no finding that the deceased had a special responsibility for the appellant; on the contrary, the primary Judge found they were not close at any relevant time.

18. [106]

    The primary Judge, as has been seen, found that the deceased provided neither financial support nor guidance to the appellant; Yvonne at all times continued her role as head of the household, providing for the children and giving them directions; and the appellant was capable of looking after himself without any assistance from the deceased. None of these findings, taken separately, would necessarily preclude a finding that the appellant was partially dependent on the deceased. But taken together, having regard to the circumstances that have been outlined, any assistance provided by the deceased to the appellant was minimal. That level of assistance could not justify a finding that the appellant was partially dependent on the deceased. A fortiori, the primary Judge was entitled to make the evaluative judgment that the appellant had not established partial dependency.

19. [107]

    The principal difficulty facing the appellant in relation to the period from October 1972 to the end of 1973 is the absence of clear findings as to precisely what assistance the deceased provided to the appellant during that period. The primary Judge cannot be criticised for not making findings specifically referable to the period after October 1972, since he was not asked to do so. This Court was not taken to evidence that would enable detailed findings to be made as to the deceased’s contributions to the household and, more particularly, to the care of the appellant during this period.

20. [108]

    During the 14 month period from October 1972 until the end of 1973, the deceased was living at home, but it is not clear how much of that time he actually spent at home. Yvonne’s evidence tended to suggest that the deceased was mostly at home, but she was clearly at pains to support the appellant’s claim that the deceased had taken over the position of man of the house after the death of his father. The primary Judge did not accept Yvonne’s evidence as to the extent of the deceased’s responsibilities within the household and it is difficult to separate that evidence from her claim that the deceased was mostly at home. Yvonne did acknowledge the deceased stayed “from time to time” at Greenwich with his friends at least from the latter part of 1973. There was also uncontradicted evidence that the deceased, who had been placed on probation on 7 February 1973 for an offence, was charged with another offence on 26 April 1973 and was remanded in custody for two weeks.

21. [109]

    The primary Judge found that the deceased commenced a Food Technology course at Hawkesbury Agricultural College in “about 1973”. [64] This appears to be an error. A Transcript of Academic Record in evidence suggests that in 1973 the deceased completed two subjects in a TAFE Cookery Trade Course at East Sydney College. The extent to which he was in paid employment during the 14 month period is not entirely clear, although Yvonne’s evidence was that the deceased worked the same hours as she did, namely Thursdays and Saturday mornings.

22. [110]

    The primary Judge made no finding that between October 1972 and the end of 1973, the deceased was at home for any length of time when his mother was absent and the Court was not taken to any evidence that would support such a finding. In this connection, the appellant’s submissions referred to evidence that Yvonne spent extended time away from home on cruises. However, the first of her diary entries relating to a cruise was in 1979 and she was very vague as to the timing or duration of any cruises before that date.

23. [111]

    The evidence is also vague as to the assistance provided by the deceased to the appellant during this period. It must be remembered that not only did the household comprise four children other than the deceased and the appellant, but that all the children were growing up. By October 1972, the appellant was eleven years of age. Lyle at this stage was fifteen years old, the same age as the deceased in April 1971.

24. [112]

    I am prepared to accept that the relationship between two persons over a period as short as 14 months can establish partial dependency sufficient to satisfy s 57(1)(e) of the Succession Act. But in order for the appellant to succeed in his challenge to the primary Judge’s rejection of his claim he must show that his Honour erred in failing to make findings of fact supporting the conclusion that the appellant was partially dependent on the deceased during this period. The primary Judge was not asked to make such findings and, in any event, the evidence does not establish that such findings should have been made. The appellant has therefore not demonstrated that his Honour fell into error concluding that the appellant was not an “eligible person” as defined in s 57(1) of the Succession Act.

25. [113]

    I add a further comment. As Mr Coleman correctly pointed out, the New South Wales Law Reform Commission, in the report that led to the enactment of the predecessor to s 57(1)(e) of the Succession Act, acknowledged that a sibling of a deceased person could satisfy the statutory requirement of dependence. [65] Mr Coleman also correctly pointed out that there are a number of cases in which a claimant has succeeded in a family provision claim against the estate of a deceased sibling.

26. [114]

    The conclusion reached in the present case in no way denies the possibility that the sibling of a deceased person may establish that he or she was wholly or partly dependent on the deceased. Each case must depend on its own circumstances. This can be seen, for example, by comparing the facts of one of the cases cited by Mr Coleman, Somogy v Kune, [66] with the facts of the present case.

27. [115]

    Nor is the conclusion reached in this case inconsistent with the approach to be taken to the construction of Part 3.2 of the Succession Act (Family Provision Orders). The primary Judge’s determination was made in conformity with the accepted construction of s 57(1)(e) of the Succession Act. The outcome of the case depends on the facts found by the primary Judge.

Factors warranting the application

1. [116]

   Having regard to the conclusion I have reached on dependency, it is not necessary to decide whether his Honour erred in finding that there were no factors warranting the making of the application. However, I shall briefly indicate my views.

2. [117]

   The appellant accepted that the primary Judge correctly stated the relevant principles. The appellant also accepted that his Honour’s determination involved an evaluative judgment requiring consideration of all the circumstances, taking into account community standards and the expectations of those making testamentary dispositions. [67]

3. [118]

   The primary Judge proceeded on the assumption that the matters relied on by the appellant had been established by the evidence. [68] On that assumption, the deceased had perpetrated serious sexual assaults on the appellant over a number of years. Equally important, on that assumption, the deceased’s sexual abuse had caused permanent psychological damage to the appellant and (by inference) to his ability to live a normal life and fulfil his economic potential.

4. [119]

   On the facts assumed by the primary Judge, his Honour may have erred in concluding that the appellant had not satisfied s 57(1)(e) of the Succession Act on the ground that the allegations “speak more to damages and compensation, than to factors warranting the making of an application”. [69] In support of this approach, his Honour cited observations made by the Victorian Court of Appeal in Jones (A Pseudonym) v Smith (A Pseudonym). The full passage is as follows: [70]

5. [120]

   The latter part of this passage, not expressly referred to by the primary Judge, suggests that historic sexual abuse may be relevant to a family provision claim. This may be the case, for example, if the evidence establishes that the abuse caused the claimant to suffer a physical or psychological disability impairing his or her capacity to earn an adequate income. Since no challenge was made to the correctness of the Victorian Court of Appeal’s observations, it may not have been a sufficient answer to the appellant’s claim that the allegations of sexual abuse related more to damages or compensation than to whether factors are present warranting a family provision application.

6. [121]

   If his Honour did err in this respect, a question would arise as to whether this Court should make its own determination as to whether there are factors warranting the making of the application. There would be difficulties in the Court taking this course. The primary Judge not only made no findings as to whether the alleged sexual abuse occurred, but did not consider whether such abuse that did occur was responsible, at least in part, for any needs the appellant had at the date of the hearing.

7. [122]

   The primary Judge regarded the text message sent by the appellant to the deceased as enough of itself to preclude a finding that there were factors warranting the appellant making a family provision application. I would not necessarily take that view. Whether the text message bore the character attributed to it by the primary Judge might depend on the truth of the appellant’s allegations as to the deceased’s conduct.

8. [123]

   An alternative course would be for this Court to make orders remitting the matter for a further hearing in the Equity Division on the outstanding issues. I would not be inclined to make such orders. If the sexual abuse perpetrated by the deceased was limited to the events described by the appellant in his sworn evidence at the criminal trial, his claim would fail. This follows from unequivocal evidence given by the psychiatrist called in the appellant’s case:

9. [124]

   The prospects of the appellant establishing the truth of his allegations do not seem to me sufficiently promising to warrant a further trial exploring disputed factual questions in a matter in which total costs already equal the entirety of the estate (excluding notional estate). Although the primary Judge did not make findings as to the extent of the sexual abuse, his Honour did not accept the appellant’s evidence on other important issues. The stark inconsistency between the appellant’s sworn evidence at the criminal trial and his claims in the present case create very serious doubts about whether these claims could be accepted.

10. [125]

    Uniform Civil Procedure Rules 2005 (NSW), r 51.53 provides that the Court must not order a new trial on any ground “unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned”. For the reasons I have explained, I would not regard any error by the primary Judge in applying s 57(1)(e) of the Succession Act as creating a substantial wrong or miscarriage such as to warrant a new trial.

Orders

1. [126]

   The appeal must be dismissed. The appellant must pay the respondent’s costs.