KRISTL v WALLINGTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY JJA and HODGSON AJA 29 May 1995, 29 August 1995 [1995] NSWCA 250 FAMILY PROVISION ACT — ELIGIBLE PERSON FAMILY PROVISION ACT — ELIGIBLE PERSON — s9(1) FACTORS WHICH WARRANT MAKING OF APPLICATION — WHETHER TRIAL JUDGE HAD ERRED IN EXERCISE OF DISCRETION — appellant brings proceedings under Family Provision Act for provision from estate of divorced husband — relationship between appellant and deceased had lasted with interruptions for 7 years — after divorce appellant sought to have nothing to do with deceased — no financial claim on deceased and no application for property order under Family Law Act before his death — deceased left his estate to his 3 sons in equal shares — none of the appellant or three sons well off- trial judge finds at least one of the sons in necessitous circumstances — trial judge holds that by current community standards appellant not a person the deceased should have had in mind when making his will and there were no factors warranting the making of s9(1) application — further the estate was not large enough to permit provision for the deceased's three sons and the appellant. Held:- appellant cannot establish error in the trial judge's exercise of discretion — the result reached by the trial judge is not on the facts unreasonable and plainly unjust — recognised need for appellate courts to exercise restraint in these type of cases. ORDERS Appeal dismissed with costs. Priestley JA I agree with Handley JA, for the reasons he gives, that the appellant has not shown in this appeal that the exercise of discretion by the trial judge, upon the basis of unchallenged factual findings, miscarried in any material way. The appeal in my opinion should be dismissed with costs. Handley JA This is an appeal by the divorced wife of the late Cyril Wallington (the deceased) from orders of Young J dismissing with costs her application under the Family Provision Act (the Act) for provision out of her former husband's estate. The deceased died on 31 January 1992 aged seventy one leaving a will made on 8 October 1990 appointing the respondent, one of his sons, sole executor and leaving his estate to his three sons in equal shares. The appellant and the deceased had an interrupted de facto relationship between 1983 and 1987 which was followed by a four months separation, a reconciliation and marriage. The parties finally separated on 5 September 1990 and in October 1991 the appellant commenced divorce proceedings in the Family Court. A decree nisi was pronounced on 12 December 1991 which became absolute a month later. The appellant was an eligible person within para(c) of the definition in the Act and entitled to bring the proceedings. She was not well off. Her only income was a widow's pension of $405 per fortnight. She lived in rented property on the 2 UNREPORTED JUDGMENTS Central Coast, her only assets a motor vehicle, furniture including an organ given to her by the deceased, and some $2,000 in the bank. The sons were not well off either. The respondent is a self-employed biomedical technician who lives alone on the Central Coast. His income before tax was $20,300 a year. He owned a house at Bateau Bay and other assets together worth approximately $142,000. Robert is an insurance loss control surveyor who lives at Katoomba with a wife who earns $100 per week and two infant children. His annual salary was $46,000. He and his wife owned their home worth $120,000 but had mortgage and loan commitments of $75,000. Charles is an invalid pensioner who had lived in the deceased's former home at Bateau Bay since November 1991. His only income was his pension of $323.30 per fortnight. He had furniture and personal effects, $5,000 in bank accounts and was owed $5,000 by Robert. He is divorced with three adult daughters who were not dependent on him. He had lived in Dept of Housing accommodation at Bidwill for fifteen years but gave this up to move in with his father and look after him during his last illness. He was more willing to leave his Dept of Housing accommodation because of difficulties with a neighbour but I would infer that he would not have moved but for his father. At the date of hearing the actual estate comprised the home at Bateau Bay worth $138,000 and a small amount of cash. The deceased had also given $7,000 in cash to each of his sons shortly before he died. The share of each son in the actual estate was thus worth approximately $45,000 subject to the costs of these proceedings and of realisation. There was no evidence of any arrangement between Charles and his brothers which entitled him to remain permanently or indefinitely in the house. When the appellant finally left the deceased she took everything she owned with her. The deceased gave her $1,000 "'to tide her over" and there was evidence which was not challenged in cross-examination that he promised to pay her another $9,000 which was never paid. The appellant's departure in September 1991 effected an almost complete break in the relationship between her and the deceased. There was no evidence of any further contact between them initiated by her apart from service of the divorce papers. The respondent said without objection that the deceased had told the appellant of his illness in November 1991 but she did nothing. He wrote her a short letter of farewell before his death which the respondent posted to her care of her sister. The letter was not produced in evidence. The respondent told the sister of the funeral arrangements but the appellant did not attend or communicate with the family. In October 1991 she adopted the surname of Kristl. The appellant made no financial claim on the deceased, not even for the $9,000. She made no application for a property order under the Family Law Act before his death. Such proceedings can be commenced in the lifetime of the spouse as of right within twelve months after decree absolute but thereafter only by leave (s44)(3)). There was no suggestion that the appellant ever contemplated such proceedings. After the separation the appellant made her own way in the world, earning board, accommodation and other remuneration acting as housekeeper and carer, first for one elderly man and then for another. She ceased working in March 1992 and had not worked since but, as the Judge said, there did not appear to be any reason why she could not have continued to do this work if she wanted to. URJ KRISTL v WALLINGTON (Handley JA) 3 Since the appellant was an eligible person within para(c) of the definition the Judge had to consider whether in her case "there were factors which warrant the making of the application" (s9(1)). The test to be applied is that stated by McLelland J in Re Fulop (1987) 8 NSWLR 679 at 681: "... the 'factors' referred to... are factors which when added to facts which render the applicant an 'eligible person' give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased." See also Churton v Christian (1988) 13 NSWLR 241 at 252 and Dijkhuijs v Barclay (1988) 13 NSWLR 639. Young J held that by current community standards the appellant was not a person the deceased should have had in mind when making his will and that there were no factors which warranted the making of the application. These conclusions were based on his findings that after the parties had separated she had made no financial claim on the deceased, had led a separate life, earned her own living, and demonstrated no emotional attachment to him. In case this Court took a different view the Judge considered what order should be made. In cases brought by eligible persons within para(c) and para(d) of the definition success at the first (s9(1)) stage does not guarantee that an order will be made in their favour. The size of the estate may make it impossible for the Court to make any provision for all those with legitimate claims. See Re Fulop at 681, Churton v Christian at 256 and Dijkhuijs v Barclay at 649. The Judge asked himself: "... Whether a person who had three sons, who were not in wealthy circumstances, one at least of whom was in necessitous circumstances, was under a moral duty to make provision for an ex-wife who had made no claim on him since separation." He answered his own question by saying: "This is not a big estate. The sons are not wealthy people and I could not be satisfied that a wise and just testator, looking at his family situation, has broken any moral duty by making a will in which he did not leave the plaintiff anything... There was no challenge to the Judge's findings of primary fact but there was to his conclusion that on those findings the appellant had failed on both issues. The submissions on her behalf sought to place a different emphasis on the primary facts. Counsel for the appellant emphasised that she was still within time for commencing a property application as of right in the Family Court when the deceased died. There had been no final settlement of her claims on the deceased either by agreement or court order. The overall relationship lasted with interruptions for seven years. The marriage had been finally dissolved only days before the deceased died and her claim should really be assessed as if she was his widow. He relied upon the loss of her entitlement to Housing Commission accommodation for which she had received approval shortly before commencing to live with the deceased. However it is difficult to assess the extent of this detriment because the approval was not in evidence. Her counsel also submitted that the deceased had been difficult to live with and that his conduct had been responsible for the break up of the marriage. All these are relevant matters which no doubt were pressed on the trial Judge. However in appeals such as this the Court does not rehear the case on the findings of primary fact as if the decision of the trial Judge did not exist. Its function is to correct error. There being no error in the Judge's primary fact finding and no 4 UNREPORTED JUDGMENTS misdirection or other legal error. the appellant's task was to establish error in the exercise of the Judge's discretion within the familiar principles in House v The Zing (1936) 55 CLR 499 at 504-505. As the High Court there said: "Tt is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge. they would have taken a different course." The need for appellate courts to exercise restraint in these cases was emphasised in Singer v Berghouse (1994) 181 CLR 201 at 212 where the majority approved the following comments by Kirby P in Golosky v Golosky (unreported, 5 October 1993): "Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged." In my opinion the result in this case on the facts is not unreasonable or plainly unjust (House v The King at 505). The estate was simply not large enough to admit all the claims on it. The appellant "needs" to own her own accommodation but so does Charles. The deceased's house meets Charles' housing needs at the moment and this may or may not continue. The appellant's need for accommodation could only be met by giving her the whole estate. Anything less would be useless for this purpose and would leave her still dependent on rented housing. However such an order would immediately force Charles into rented housing. Moreover, if the appeal were to be allowed the estate would be burdened with both sides' costs of the trial and the appeal. It is possible therefore that even an order for the appellant to receive the whole estate would now not be sufficient to enable her to purchase a small house or unit. In my opinion, the appeal should be dismissed with costs. Hodgson AJA I agree that this appeal should be dismissed, substantially for the reasons given by Handley, JA. However, I wish to make two comments of my own. First, the circumstances that the applicant was the divorced wife of the deceased, that the decree nisi was pronounced only about seven weeks before the date of death, that the deceased at the time of separation had retained money in a joint account and promised the applicant $9,000.00, that no part of that amount had been paid when the deceased died, and that the applicant at that time still had nearly twelve months in which she could without leave have applied for a property settlement under the Family Law Act, could well be regarded as factors warranting the making of the application within s9(1) of the Family Provision Act. However, I do not need to decided whether the trial judge's view that there were not such factors involved an appellable error, because the trial judge gave separate consideration to the question whether, assuming there were such factors, provision should be made. On that question, as Handley, JA shows, there was no appealable error. Second, the dismissal of this application does not involve a definitive finding that the estate is not liable to the applicant for $9,000.00, on the basis of contract or estoppel. By saying this, I am not indicating a view that the estate is so liable, nor do I wish to encourage further litigation. However, the possibility that there is such a liability might perhaps be taken into account by the estate in dealing with the costs of these proceedings. URJ KRISTL v WALLINGTON (Hodgson AJA) 5 I agree with the orders proposed by Handley, JA. Appeal dismissed with costs. 5 Counsel for the Appellant: PH BLACKBURN-HART Counsel for the Respondent: G RUNDLE Solicitors for the Appellant: HENDRIK J KEULEMANS 10 Solicitors for the Respondent: PETER BLACKWELL AND ASSOCIATES