Siddle v Ellis [2011] NSWSC 1169 (18 October 2011)

Last Updated: 24 October 2011

Supreme Court New South Wales

Case Title:	Siddle v Ellis
Medium Neutral Citation:	[2011] NSWSC 1169
Hearing Date(s):	20/09/11, 21/09/11
Decision Date:	18 October 2011
Jurisdiction:	Equity Division
Before:	Associate Justice Macready
Decision:	I dismiss the proceedings and will hear the parties on costs.
Catchwords:	WILLS AND ESTATES - family provision claim - age of claimant - claimant maintained by deceased before death; whether - claimant and his father lived with deceased prior to her death - claimant's father in defacto relationship with deceased - claimant was not dependant on deceased
Legislation Cited:	Administration and Probate Act 1928 (Vic) Family Provision Act 1982 Wills Probate Administration Act 1898 Testators Family Maintenance and Guardianship of Infants Act 1916
Cases Cited:	Ball v Newey (1988) 13 NSWLR 489 Barrot, Re [1953] VicLawRp 45; [1953] VLR 308 Basto v Basto (NSWSC, 8 September 1989, unreported) Benney v Jones (1991) 23 NSWLR 559 Brown v Faggoter (NSWCA, 13 November 1998, unreported) Churton v Christian (1988) 13 NSWLR 241 Dare v Furness (1998) 44 NSWLR 493 De Winter v Johnstone (Court of Appeal, 23 August 1995, unreported) Fancett v Ware (NSWSC, 3 June 1986, unreported) Fulop Deceased, Re (1987) 8 NSWLR 679 Guskett (deceased), Re [1947] VicLawRp 28; [1947] VLR 212 Lewis v Lewis [2001] NSWSC 321 Massie v Laundy (NSWSC, 7 February 1986, unreported) McKenzie v Baddeley (NSWSC, 3 December 1991, unreported) Petrohilos v Hunter (1991) 25 NSWLR 343 Phillips v Quinton (NSWSC, 31 March 1988, unreported) Potter v Koester (Estate of the late Potter) [2011] NSWSC 601 Sherborne Estate: Vanvalen v Neaves, Re [2005] NSWSC 593 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Williams v Legg (1993) 29 NSWLR 687
Texts Cited:
Category:	Principal judgment
Parties:	Joshua Siddle by his tutor Etita Maria Uaiselle v Samantha Dawn Ellis
Representation
- Counsel:	Counsel: Mr M Willmott SC & Mr M Claridge for plaintiff Mr P Blackburn-Hart SC & Mr M Gorrick for defendant
- Solicitors:	Solicitors: Kaz Portolesi Lawyers for plaintiff Broun Abrahams Burreket for defendant
File number(s):	2010/66831
Publication Restriction:

JUDGMENT

1. This is an application under the Family Provision Act 1982 in respect of the Estate of the late Patsy Yvonne Ellis who died on 15 July 2007 aged 49 years. The deceased was survived by her former husband, two children of that marriage and her de facto partner at the date of her death Kyle Siddle.

2. The present application is made by Joshua Siddle who is the son of Kyle Siddle. He claims to have been part of the household of the deceased and that he was dependent upon her. The deceased executed her last will on 15 August 1994 in which she appointed her husband as executor and trustee and left the whole of her estate to him with a proviso that if he should pre-decease her or fail to survive her within a period of 30 days, the estate was to be left to her two children, Kevin George Thomas Ellis and Samantha Dawn Ellis, in equal shares. As a result of the dissolution of that marriage, the husband's appointment as executor did not take effect by virtue of 15A(1)(b) of the Wills Probate Administration Act 1898 and the gift was deemed to pass as if he had predeceased his wife. This means in the events which have happened that Kevin and Samantha Ellis take the entire estate of the deceased. Letters of administration with the will annexed were granted to Samantha Ellis, the defendant in the proceedings.

Assets in the estate

3. The deceased's estate for probate had a gross value of $35,357,058.14 and a net value of $28,363,960.25. The estate has been substantially distributed, but there remains still undistributed a sum of $10,169,714.00.

4. The remaining costs still to be paid in respect of the defendant's representation amount to $47,088.00 and the plaintiff's costs amount to approximately $67,000.00.

Family history

5. The deceased was born in 1958 in Swaziland.

6. In December 1976 she married Christopher Ellis. They had two children, Kevin, born in June 1977 and Samantha, born in November 1979.

7. As I have mentioned, the last will of the deceased was made on 15 August 1994. The plaintiff, Joshua Siddle, was born in September 1994. Etita Maria Uaisele, the plaintiff's mother, is his tutor in the proceedings

8. During 2002 the deceased purchased a property at Glassop Street, Balmain and she moved into it at the end of that year.

9. The deceased and her husband Christopher were divorced on 2 September 2003. At that stage her daughter, Samantha, was living at home. In November 2005 Samantha moved out to live nearby at Barr Street, Balmain.

10. In about December 2005, Joshua's mother and his father, Kyle Siddle, separated. They had been in a defacto relationship and had three children together. Joshua is the oldest of those three children.

11. Shortly afterwards Kyle Siddle met the deceased and started an association with her.

12. In April 2006, the deceased travelled to Swaziland to visit various family members. After her departure, Joshua and Kyle Siddle flew to Swaziland to join the deceased and her family. In early May, the deceased returned to Australia separately because she had to take care of her son who was having medical problems. Shortly afterwards Joshua and Kyle Siddle returned to Australia.

13. Either in that month, or a month or so later, both Joshua and Kyle Siddle moved in and lived with the deceased at Glassop Street, Balmain. There was no dispute that the deceased and Kyle Siddle thereafter continued a de facto relationship until the death of the deceased. At that stage Joshua was aged 11 years.

14. In December 2006, the deceased purchased a property at Wharf Road, Gladesville for some $4.3 million. That purchase settled on 18 January 2007 and the deceased, Kyle Siddle and Joshua moved into the property.

15. Having regard to his move and some other factors, Joshua started at Killara High School in term one in either late January or early February 2007.

16. In June 2007, Kevin Ellis moved to live in Africa.

17. As I have mentioned, the deceased died on 15 July 2007 and at that stage Joshua and Kyle Siddle were living at the Gladesville property.

18. On 5 December 2008, Kyle Siddle commenced proceedings under the Family Provision Act for an order for provision out of the estate of the deceased. Those proceedings were compromised at a mediation on 20 August 2009 and on 7 September 2009, final consent orders were made which provided for a legacy to Kyle Siddle in the sum of $725,000 plus his costs in the sum of $75,000.

19. Joshua Siddle was not a party to those proceedings. Subsequent to the consent orders, Kyle Siddle was paid the sum due under the settlement and with those funds he purchased a home at Wharf Road, Gladesville and a share in an investment property.

20. The 18 month time period that was available to Joshua to make the present claim expired on 15 January 2009. A notice of the claim to eligible persons, addressed to Joshua Siddle, was served on 23 March 2009 on Tress Cox Lawyers the solicitors who acted for Kyle Siddle on his claim. This was by agreement with Kyle Siddle that he would obtain independent advice for his son, Joshua. However, this did not eventuate.

21. In July 2009, Joshua ceased living with his father, Kyle, and moved in to live with his mother who also cared for Joshua's two brothers. She had the care of Joshua as a result of Family Court orders for access that were given prior to this date. When Joshua was informed of his father's claim on the estate, his mother investigated the matter and on 28 July 2009, they sought advice from DA Patterson & Partners, solicitors, on behalf of Joshua. Joshua and his mother had a brief meeting with the solicitors and Mr Patterson informed them that Joshua's claim might be out of time.

22. In August 2009, Joshua and his mother again saw Mr Patterson and he informed them that the Joshua's claim was out of time.

23. On 25 February 2010, the present solicitors for Joshua, Kazi Portolesi Lawyers, who had been consulted by Etita Uaisle and Joshua wrote foreshadowing a Family Provision Act claim on behalf of Joshua.

24. Joshua commenced proceedings on 15 March 2010.

25. Joshua is currently a pupil at Holy Cross College, Ryde. He is in Year 11 and expects to sit for the HSC in 2012.

Extension of time

26. The application is out of time and it is therefore necessary for the Court to consider section 16 of the Family Provision Act , which allows for an extension of time for an application to be made.

27. Section 16 of the Family Provision Act is as follows:

"16 Time for application for provision

(1) In this section, prescribed period in respect of an application in relation to a deceased person, means:

(a) where the Court has, in an order made under section 17, specified a period in relation to the application-that period, or

(b) in any other case-the period of 18 months after the death of the deceased person.

(2) An order under section 7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the Court may, having regard to all the circumstances of the case but subject to subsection (3), by order, allow.

(3) The Court may not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the end of the prescribed period unless:

(a) the parties to the proceedings concerned have consented to the application being made after the end of that period, or

(b) sufficient cause is shown for the application not having been made within that period.

(4) The Court may make an order under subsection (2) with respect to an application in relation to a deceased person whether or not:

(a) the prescribed period in respect of the application in relation to the deceased person has expired,

(b) the application for the order under that subsection was made before that period expired, or

(c) the application in relation to the deceased person has been made.

(5) Notwithstanding subsections (2) and (3), where administration has been granted in respect of a person whose date of death is so uncertain as to make it impossible to apply subsections (2) and (3) with respect to an application in relation to the person, the Court may, whether or not the application in relation to the person has been made, by order, allow the application in relation to the person to be made within such period as it thinks reasonable and such an order has effect according to its tenor."

28. There are a number of cases that refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) [1947] VicLawRp 28; [1947] VLR 212, the following was said:

"It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time."

29. His Honour Justice Young in several cases has dealt with the principles governing application to extend time under this Act. In Massie v Laundy (NSWSC, 7 February 1986, unreported) he indicated that when looking at "sufficient cause" under 16(3) of the Act the factors which one looks at include the following:

(a) is the reason for making a late claim sufficient?

(b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended?

(c) has there been any unconscionable conduct on either side which would enter into the equation?

30. Apparently he also accepts a view that was expressed by his Honour Needham J in Fancett v Ware (NSWSC, 3 June 1986, unreported) that there is no purpose in extending the time with respect to a claim that must fail. In Phillips v Quinton (NSWSC, 31 March 1988, unreported), Powell J when considering the matter at the substantive hearing, leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance and Guardianship of Infants Act 1916 must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. His Honour Hodgson J, did not accept that view in Basto v Basto (NSWSC, 8 September 1989, unreported).

31. In De Winter v Johnstone , an unreported decision of the Court of Appeal on 23 August 1995, his Honour Powell J, referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23:

"In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief."

32. His Honour Justice Sheller considered that it was only necessary to show that the application was not bound to fail. His Honour Justice Cole seems to have adopted the parties' approach of looking at the strength of the plaintiff's case.

33. The case of De Winter v Johnstone is also useful in that Sheller J commented on the meaning of "unconscionable". He was dealing with an appeal from Master McLaughlin and he referred to the Master's comments to the following effect:-

"Unconscionable conduct in this context of course relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate and has then decided after the limitation period has expired to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period."

34. With regard to the Master's comments, his Honour observed:

"...with all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However the concept of unconscionable conduct is to be directed towards a deliberate holding off designed to lull beneficiaries into false sense of security. There is nothing to suggest anything of that sort in the present case."

35. In Lewis v Lewis [2001] NSWSC 321, Hodgson J commented on s 16 (3) and said at paragraph 83:

"The wording of that provision is a little curious. If read literally, it would appear to be a tautology: the application was not made within the prescribed period, so in some sense there must have been sufficient cause for this to happen. The expression "sufficient cause" must be taken to mean "sufficient explanation" or "sufficient justification or excuse". The question then is, sufficient for what? Again, it cannot be sufficient for the application not having been made, because again that would seem to give rise to a tautology. Rather, it must be something like "sufficient in all the circumstances to justify the granting of an extension of time"."

36. On its face section 16(3) only requires that sufficient cause be shown as to why the application was not made within the prescribed period rather than the period up to the filing of the summons. As was pointed out in Dare v Furness (1998) 44 NSWLR 493 at 501, it has always been necessary to consider what delays occurred after the prescribed period expired. It is important to look at the total period of delay and the reasons therefore in the exercise of the general discretion given to the Court under s 16(2).

37. In respect of the prescribed period, I am satisfied that sufficient cause has been shown as Joshua and his tutor had no knowledge of the relevant time limit. The defendant does not point to any particular matters during the prescribed period which are said to amount to unconscionable conduct and such prejudice which she seeks to establish relates more to the period after the prescribed period. Thus the pre-condition in s 16(3) has been satisfied. I therefore have to consider "all the circumstances of the case" to determine whether I should exercise my discretion under s 16(2) to extend time.

38. On that aspect of the matter the comments by Sholl J in Re Barrot [1953] VicLawRp 45; [1953] VLR 308 are apposite. He was there dealing with s 147 of the Administration and Probate Act 1928 (Vic) which prescribed a six months' time limit from the grant with a right to apply for an extension before final distribution. The discretion given was completely general. At 312 he said:

"The jurisdiction to extend the time is discretionary. But, while it can never be right for the Courts, when the Legislature has not done so, to attempt to specify grounds on which alone the discretion can be exercised in favour of an applicant, it is on the other hand obvious that the mere making of an application for an extension of time is not enough to constitute prima facie a ground for granting it. The legislation contemplates that the Court or Judge must be satisfied of some circumstances, which should induce it or him, acting judicially - i.e., fairly and properly, upon relevant materials and in relation to relevant considerations - to excuse the applicant from what would otherwise be the privative operation of the section as a result of the delay. That this is a wise and sensible provision is clear when one considers, first, that, if the extension is granted, no antecedent distribution is to be disturbed - which means that the rights of some beneficiaries may have become conclusively indefeasible and beyond the possibility of adjustment - and secondly, that once the six months' period has elapsed without an application, the rights of all beneficiaries have become prima facie indefeasible, and that they may have acted on that basis."

39. Relevant matters to be considered in my general discretion include the reasons for delay and the effect of infancy. That these were relevant on the general discretion was assumed by Cohen J in Dare v Furness when he said at 500:

"This problem was referred to in the Report on the Testator's Family Maintenance and Guardianship of Infants Act 1916, by the Law Reform Commission of New South Wales (LRC 28, 1977) pars 3.4-3.10. It was said at par 3.4 that the court treats with sympathy applications by persons under legal disability for extensions of time for the commencement of proceedings. The commission was unable to establish what it considered to be an appropriate resolution of this difficulty. Despite the reference to the general attitude of courts to applications for extension of time on behalf of infants, it is not easy to find any authorities which deal with that situation. The mere status of a plaintiff as an infant is obviously not itself a sufficient cause for an application not being made within the prescribed period. In my opinion it is a factor which must be taken into account when the court is considering the sufficiency of the reason for delay in the bringing of proceedings. In particular, where a parent or guardian of the child has caused or contributed to the delay, but there are some reasons to explain it, then the fact that the child was at all times dependent upon the acts of that parent or guardian will be a fact to add to the reasons in considering whether there has been a sufficient cause shown for the delay."

40. His Honour's assumptions appear at pages 501 and 502 of the report.

41. It is plain that Joshua knew nothing about the Act and he was only aged 12 years when the deceased died.

42. Plainly his father Kyle in whose care he was at the time knew of the time limit and it also seems clear that in Kyle's application one of the factors he relied on was the expense he would have in caring for Joshua and providing for him in the future.

43. Joshua did not know about the notice that had been served on his father on 23 March 2009 and in any event it was served after the time had expired.

44. As I have mentioned there was a transfer of parenting responsibility of Joshua from his father to his mother in July 2009 and his mother immediately proceeded with the matter. By August 2009, Etita Uaisele had been advised that the claim was out of time and she then obtained access to other solicitors.

45. There is little explanation as to what transpired after August 2009, when presumably Joshua's mother found her present solicitor who was prepared to advise her on the proceedings, in contrast to the advice that had been given to her by the solicitor at DA Patterson & Associates.

46. The defendant made reference to the failure to call that solicitor to give evidence of what advice he gave. It was suggested that because the second conference with Mr Patterson might have taken 20 minutes that I should infer that some other advice might have been given. I do not think that is appropriate in particular it seems from the evidence that the second conference was quite short when the solicitor simply told Joshua's mother, on her evidence, that it was out of time and he could not help her.

47. The question of prejudice was also raised and it is plain that at the mediation when Kyle's claim was settled it was the only claim known to the defendant. The way the claim was presented suggested that Kyle was taking responsibility for Joshua. Given the size of the estate I do not think there is any prejudice caused by this conduct and it is not appropriate to consider precisely what was said at the mediation.

48. Although Joshua's claim is only based on a period of a 14 month relationship with the deceased I would not describe the claim as a weak. Although the explanation is not complete I am prepared to extend the time to bring the present application.

Eligibility

49. Joshua's claim is based upon the fact that he was a member of the household of which the deceased was a member and at that or some other time wholly or partly dependent upon the deceased. It was conceded by the defendant that Joshua was part of the household although for a slightly different period than that propounded by Joshua. The difficult question in this case is the question of dependency.

50. In Ball v Newey (1988) 13 NSWLR 489, the Court of Appeal first considered the question of dependency. His Honour Justice Samuels at page 490 said the following:

"His Honour concluded that 'dependent' meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person', par (d)(i).

In the present case, however, only financial dependence is relied on and I approach the matter on that basis. 'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey L.J. In Lee v Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probabilities'. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency."

51. His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could have only received a partial benefit. At page 492 he addressed the argument in these terms:

"Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney [1976] HCA 5; (1976) 50 ALJR 454; 8 ALR 455.

It is not to be determined upon theoretical considerations. It is 'the actual fact of dependence or reliance on the earnings of another for support that is the test': per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177 at 189. 'The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. "

52. This passage emphasises the factual nature of dependency be it financial or otherwise.

53. In Benney v Jones (1991) 23 NSWLR 559, the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of an emotional relationship between them.

54. In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the Court once again considered the meaning of dependency and said:

"I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things.

But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language.

This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that '"dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'.

If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop Deceased or to 'other forms of dependance analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them.

To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does.

The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

55. In McKenzie v Baddeley (NSWSC, 3 December 1991, unreported), Justice Meagher, although in the minority, further discussed dependency and described it as "financial, economic or material dependency, not a mere emotional dependency". Important in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant "more than minimally" or perhaps "significantly".

56. In Williams v Legg (1993) 29 NSWLR 687, the Court in considering a case of a young child needing mothering pointed out that the absence of financial dependence is not conclusive.

57. In this case it is clear that for 14 months Joshua lived in the deceased's house. The deceased provided the home as it was in her name and for most of the period she provided the funds to support Joshua and his father, Kyle. A difficulty arises because for the period Joshua was aged between 11 years and 12 years. He was there the whole time with his father and the question is whether he was dependent upon his father because of his father's legal and moral obligations to support him or whether the relationship between the parties had moved to a point where Joshua could be said to be dependent upon the deceased. Similar problems arise in cases where one considers the position of grandchildren and stepchildren.

58. In respect of grandchildren and stepchildren, the matter has been considered in several cases. For example, in Re Sherborne Estate: Vanvalen v Neaves [2005] NSWSC 593, Palmer J referred to the authorities dealing with grandchildren. At paragraph 41 he said:

"The following is a convenient summary of the principles which I understand to be applicable to determination whether a grandchild is an eligible person:

The authorities make it clear that a grandchild is not normally regarded as to be shown to bring a grandchild into the category of persons for whom the testator ought to have made provision. These additional factors usually show that the testator has come to assume, for some significant time in a grandchild's life, a position more attuned to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the testator has undertaken a continuing and substantial responsibility to support the plaintiff financially: see eg Tsivinsky v Tsivinsky (unrep) NSWCA 5 December 1991 per Kirby P; Sayer v Sayer (1999) NSWCA 340; MacEwan Shaw v Shaw [2003] VSC 318; O'Dea v O'Dea [2005] NSWSC 46.

The authorities are equally clear that the grandchild's dependence, whether whole or partial, on the grandparent must be direct and immediate; it is not sufficient that the grandchild's dependence is the indirect result of the testator providing support and maintenance for his or her own adult child and thereby incidentally benefiting the testator's grandchildren who are directly dependent on the child: see eg Petrohilos v Hunter (1991) 25 NSWLR 343, at 346; Re Fullop (1987) 8 NSWLR 679, at 682; Pearson v Jones [2000] NSWSC 799; MacEwan Shaw v Shaw (above).

Further, the fact that the testator occasionally or even frequently made gifts to or for the benefit of the grandchild does not in itself make the grandchild wholly or partially dependent on the testator for the purposes of section 6 (1) (d). To qualify the grandchild as a dependant, the gifts or benefits provided by the testator must be of such regularity and significance that one can say that the testator had clearly assume a continuing and substantial responsibility for the grandchild's support and welfare: se eg Leahey & Trescowthick [1999] VSC 409; MacEwan Shaw v Shaw (above); Pearson v Jones (above); Simons v Permanent Trustee Co Ltd [2005] NSWSC 223."

59. The quotation of Palmer J perhaps reflects the submissions that were made to him which he appears to have endorsed. His Honour was concerned with one period of three months when the applicant was seven years old and came to live with her mother with the deceased. He went on to say in respect of that period:

"I am unable to accept that the period of three months in 1976 when Ellen, Julia and Brett came to live with the deceased at Willow Vale qualifies as the period during which Julia was wholly or partially dependent on the deceased for the purposes of section 6 (1) (d) of the Act. My reasons are as follows:

First, whatever assistance the deceased was giving by providing accommodation during this period may be seen as given for the support and maintenance of Helen, as the deceased daughter, rather than as direct support and maintenance of Julia."

60. In Potter v Koester (Estate of the late Potter) [2011] NSWSC 601, I found that the plaintiff, who was step-child of the deceased, was an eligible person because from a very young age the plaintiff became a part of the household and the deceased played an important part in providing emotional and material benefits for him. The plaintiff stated that deceased was the only mother he ever knew and the deceased treated the plaintiff in the same way that she had treated her own natural children.

61. There are number of matters to bear in mind when considering the relationship between the parties during this critical period. I think it is clear that Joshua had his own bedroom at the deceased's home. He was attending school at Killara and he had to be driven to school in the morning, which was frequently done by his father. Sometimes when Kyle and the deceased had other arrangements and they could not pick him up from school, Joshua would spend a night with his father's parents at Lindfield, which was within walking distance of his school. This probably explains some of Samantha's evidence why on two occasions during that period she stayed in the bedroom that was occupied by Joshua. The number of nights when Joshua stayed with his grandparents was described as between one to three nights a week.

62. It is also clear that given the disparity of wealth between the deceased and Kyle, that the deceased frequently paid for food and expenses for the home. In particular this was the situation when Kyle lost his employment after his employer's business collapsed in 2006. The evidence shows that the deceased gave Kyle a credit card, which he used to withdraw cash funds from her account to shop and pay bills on-line. However, he could not use the card as a credit card and sign on her behalf. Funds withdrawn from the deceased's account were often left at home for Joshua to pay for home delivered meals or pay for his taxi fare when he returned from school if his father could not pick him up.

63. Taking on a responsibility for a child is not only a financial matter. There are other matters such as schooling and the child's welfare. It seems clear that the deceased was not involved Joshua's formal enrolment in his school at Killara. The school documents contain no reference to the deceased apart from one, to which I will return shortly. There is no evidence that the deceased took any interest in Joshua's sporting activities and this is consistent with her increasing illness and inability to leave home over the period prior to her death.

64. Joshua gave evidence in his affidavit dated 4 March 2010

"11. The deceased did not enjoy good health and suffered from abuse of alcohol, anxiety and excessive consumption of medication for the relief of pain and anxiety. She had some kind of large abdominal cyst, as I understand it, which was very painful. The deceased would become very depressed when she consumed a lot of alcohol. On one occasion when I said to the deceased "Please stop drinking so much". The deceased replied "Why?" I then said "Because I love you". Then we both became very emotional. The deceased said to me "I love you too." I spent much of my out-of-school hours comforting and caring for the deceased in the time that I lived at Balmain and later at Wharf Road, Gladesville, up until her passing.

12. At Balmain I developed a close personal relationship with the deceased. The deceased and I spent long hours in conversation, which I greatly enjoyed and by the time we moved residence to Gladesville my relationship with the deceased was like the relationship I had with my own mother. On different occasions the deceased said to me word to the effect: "You are like the son I never had" and "My other son Kevin had a lot of problems" and "Kevin has drug problems".

...

15. The deceased's house at Balmain was a three level residence and contained many stairs. It was inconvenient for the deceased having regard to her poor health. I frequently carried the deceased up and down stairs while we were living at Balmain. Later in 2006 my father, the deceased, and I discussed moving to a more convenient residence. The deceased said "We are all going to look at houses as a family so we get something we all like". We inspected a waterfront residence at Wharf Road, Gladesville, which we all liked. All three of us attended the auction, with Kyle placing the bids. The deceased purchased the house for four million, three hundred thousand dollars. When we moved in, the deceased held a house-warming party. She said to those at the party "This is not my house, this is Kylie's Joshua's Samantha's, Kevin's and my house"."

65. It was suggested that on some of these occasions the statements by the deceased would be when she was emotional having drunk too much alcohol. The occasion in paragraph 11 was when she had drunk alcohol, but one would think that on the occasion in paragraph 15 she would not have been drunk. Kyle and Joshua both indicated that was said when the deceased was not drunk.

66. The situation Joshua describes in paragraph 17 of his affidavit is a very unfortunate situation; Joshua was sitting with the deceased watching television and he had gone to sleep. When he woke up the deceased was still sitting beside him, dead. This left a terrifying impact on him. A couple of weeks later he was involved in a fight at school and the school notes recall that when he gave evidence to the teacher that one reason why the fight occurred was that he was fragile because of the death of his stepmother. Plainly Joshua regarded the deceased as his stepmother.

67. Samantha's evidence has to be considered on this aspect. In her affidavit dated 12 May 2011 in respect of the relationship between her mother and Joshua, she said:

"55. Joshua was overweight and I saw him regularly eating takeaway or junk food. On one occasion I said to my mother:

"You have to monitor Josh's diet, he can't keep eating all that junk food. It's not good for him."

She replied:

"It's Kyle's responsibility. I am not going to tell Josh what to do. I had my own children, Kyle has to decide what Josh should eat."

56. Joshua spent most of his time upstairs playing on the computer whenever I visited. He was not easy to engage in conversation. He mostly gave one word responses to questions I asked of him. I did not ever see or hear him engaged in long conversations with my mother.

57. On one occasion in about May 2007 when I visited Gladesville I heard Joshua say to my mother:

"I'm hungry, what can I eat?"

She replied:

"Go and ask your Dad for something to eat."

After he left the room I said to her:

"Why didn't you find something for Josh to eat?"

She replied:

"Josh is Kyle's responsibility, not mine. He has to make sure Josh has food to eat."

58. While I was in Swaziland in June 2007 I spoke to my mother over the telephone and she said to me words to the effect:

"Kyle's gone to Adelaide to see his sister."

I replied:

"Why has Kyle gone to Adelaide? Are you going to be on your own?"

She replied:

"Hilda and her daughter Abba are coming today."

I replied:

"Where's Josh?"

She replied:

"Josh is staying with his grandparents. I don't want him here if Kyle isn't here to look after him." "

68. The fact was that Joshua did not stay with his grandparents but instead he went to Adelaide with his father.

69. There is a submission that I should be careful when accepting Samantha's evidence because she was somewhat selective in what she included in her application before this court in relation to Joshua's claim compared with what she said in her affidavit in opposition to Kyle's claim against the estate. I think that is probably explained by the different nature the claims. The detail given in the conversations is unlikely to be concocted.

70. It is submitted that the deceased provided Joshua with:

(a) Secure and stable accommodation;

(b) Food, clothing, school expenses, taxi fares;

(c) Employed a cleaner who did the washing, cleaning and other domestic work which benefited Joshua;

(d) Expensive Christmas and birthday presents, including a bicycle and an X-Box console game costing about $800;

(e) Emotional support and care.

71. Kyle was caring for Joshua at the time he and the deceased started a relationship. Within about year, Kyle paid for Joshua to travel to Africa to meet the deceased and her family. In some respects this may be seen a simply a holiday, but in the context of Kyle's relationship with the deceased this trip did seem to cement the deceased's warm feelings towards Joshua. During that trip Kyle's evidence in his affidavit of 24 December 2010 at paragraph 55, is that the defendant stated, "I want to make a life with you and Josh. I want you two guys to move in with me at Balmain."

72. By the end of May 2006, Kyle and Joshua were living with the deceased and it is clear that Joshua had his own bedroom. However Joshua's residing with the deceased was an incident of his father's relationship with the deceased. However from the evidence, there is a sense that the deceased was prepared to 'take Joshua on board', the three attended the auction for Gladesville road together, with the clear intention of buying a home they could live in together.

73. This is a borderline case. There was obviously affection and warmth shared between the deceased and Joshua. The parties clearly cared about each other's well being. The deceased did provide Joshua with clean and secure accommodation, gifts and she paid for a number of his expenses, but what needs to be demonstrated is that Joshua was dependant on the deceased. There was some small element of mutual dependence, as demonstrated by Joshua carrying the deceased downstairs and the deceased's financial contributions towards Joshua's food and his transport. However, Kyle was Joshua's primary carer during this period and the deceased did not attempt to alter that situation. Indeed the conversations recounted by Samantha make it clear that the deceased regarded Kyle as having that role. The deceased was a very wealthy woman and her financial assistance was what would be expected from any responsible adult who shared their home with a child.

74. It was submitted that by the time of the death of the deceased, Joshua had come to regard the deceased as his step-mother. The "Record of Parent Interview" dated 3 August 2007 produced under subpoena by Killara High School includes an entry:

"In interview Josh broke down explaining that his mother had died 2 weeks ago and he found her dead. His father was away taking the body to Swaziland and Josh was with his grandfather. He had had no grief counselling". He formally apologised to Eric"

75. A second contemporaneous entry is a hand written statement by Joshua about a school fight in which he was involved. Joshua concludes his statement with the sentence:

"I've just really been edgy because my step-mum died recently"

76. I think it is plain from what we know of the relationships that if the deceased and Kyle had separated, that Joshua would have also left the home with his father. That of course did not happen, but instead the deceased died at a time when Joshua then aged 12 had been in the home for about 14 months.

77. Although the deceased had undertaken financial support for Joshua she had no direct responsibility for his welfare. His father provided that support. A consideration of all the circumstances leads me to the view that Joshua was not dependant on the deceased. Accordingly the claim should be dismissed.

78. In case another view is taken on the matter, I should also return to the other matters in the case.

Factors warranting

79. However it is necessary under s 9(1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms:

"Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'"

80. In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:-

"To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."

81. These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter , a decision of the New South Wales Court of Appeal given on 13 November 1998, by Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if it has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Re Fulop Deceased . I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

82. Having regard to my conclusions above and the fact that it is necessary to find something over and above the ordinary relationship what is necessary for the establishment of dependency, I would not have thought that factors warranting were made out on the traditional basis.

83. Assuming that Joshua is an eligible person I must bear in mind what the court said in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 in respect of the jurisdictional aspects.

84. In applications under the Family Provision Act , the High Court in Singer v Berghouse has set out the two-stage approach that a Court must take. At page 209 it said the following:

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

85. I turn to consider Joshua's situation in life.

86. Joshua is 17 years of age and is in Year 11 at Holy Cross College. Assuming his mother can continue to provide funds for his education at Holy Cross he will complete the Higher School Certificate in 2012. He lives with his mother, Etita and two brothers, Dylon and Tristan. Etita is in a poor financial situation. Although she receives child support payments from Kyle her pension is only $1,019 a fortnight and she is falling behind with her financial obligations. She owes about $5,000 for school fees to Holy Cross College and she recently paid $400 on the account to keep Joshua at school.

87. It was submitted that Joshua needs $10,000 to allow for better nutrition, appropriate clothing and payment of his school fees until completion of the Higher School Certificate in 2012. Joshua also states that he needs about $4,000 to cover the cost of purchasing a laptop computer now and to pay for it to be replaced about halfway through his tertiary studies.

88. Joshua would like to study Architecture at University. It is suggested that he is likely to complete all the necessary qualifications by about 2019. Joshua has asked for $150 per week to pay rent until 2019. Using the ordinary 3% discount tables for seven years the calculation is: $150 per week x 330 = $49,500. The amount deferred for 18 months (while the plaintiff is still at school (.957) gives a sum of $47,371.00. Added to that is $2,588 for the cost of a relevant Hornsby TAFE course, $23,256 for the costs of the course in Bachelor of Design in Architecture and a further $15,508 for the cost of the course in Master of Architecture.

89. During tertiary education until 2019, Joshua states that he will need $250 per week for other student costs of the ordinary expenses of living (in addition to rental accommodation costs). Applying the same formula in the paragraph immediately above, $250 per week x 330 = $82,500 but then applying the deferred multiplier for 18 months (.957) gives a sum of $78,952.00.

90. Joshua needs include a motor vehicle allowance of $20,990.00 and running costs of about $70 per week for eight years (this includes Year 12 in 2012). Using the 3% discount tables ($70 x 371.8) an amount of $26,026 is required.

91. Other needs Joshua has identified are:

(a) The costs of rugby clothing and gear, plus the cost of some Australian and overseas rugby tours, until Joshua reaches the age of about 35 years, at $13,873.00;

(b) Health insurance at about $20 per week for eight years (20 x 371.8 = $7,436) at $7,436; and

(c) An additional capital sum in the amount $500,000 to allow Joshua to establishing himself in a professional practice and in a career, pay off his HECS debt to the Commonwealth Government in order to establish his career with greater facility, p rovide housing.

92. In total, Joshua submits that an appropriate order for total provision is $750,000.00. I think that given the amount in the estate and the deceased's provision for Joshua while he was at school some allowance for Joshua's education may be suitable but any provision to set him up in business is certainly not suitable. An amount of $100,000 would be suitable to pay for Joshua's living expenses, computer equipment and course fees while he is completing his schooling and tertiary qualifications.

93. I dismiss the proceedings and will hear the parties on costs.

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