CHURTON v CHRISTIAN [1988] NSWCA 23

CHURTON v CHRISTIAN

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Hope JA, MAHONEY JA and PRIESTLEY JA 1 March, 10 June 1988

[1988] NSWCA 23

TEM — Family Provision — claim by son, divorced wife and daughter of divorced wife brought up a member of testator's household — In divorce proceedings consent order made that testator should continue to pay small weekly amount for ex-wife for maintenance of son — Testator's will left property to woman whom he intended to marry — determination at first instance that in all the circumstances making of application by ex-wife and daughter warranted — order giving one-third of estate to ex-wife, one-third in equal shares to her daughter and the son and one-third to named beneficiary — Family Provision Act 1982 s 9(1) — consideration of manner in which question whether in all the circumstnces making of application by ex-wife and her daughter should be determined — decision that making of applications warranted affirmed — appeal to be allowed in part — orders to be made resulting in beneficiary and ex-wife each receiving one-half of estate and daughter of ex-wife and son not receiving any part of estate — short minutes of order to be brought in.

Mahoney JA. I have had the advantage of reading the judgments of Hope JA and Priestley JA.

I agree that the applications made by Mrs Bailey and Mr Christian should be dismissed. I do not desire to add in that regard to the matters referred to by Priestley JA.

Were the matter to be dealt with by me at first instance, my inclination would be to dismiss the application made by Mrs Christian. But, upon the question of entitlement, my colleagues are in agreement with Master Gressier that an order should be made and, against such unanimity of view, I do not press my doubts to the point of dissent.

In relation to the application by Mrs Christian, I desire to add certain observations of my own.