BROWN v FAGGOTER and ORS [1998] NSWCA 44

BROWN v FAGGOTER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER JA, SHEPPARD and FITZGERALD AJJA 13 November 1998, 4 November 1998

[1998] NSWCA 44

FAMILY Provision Act s7, s8 and s9 — failure to give sufficient weight to critically important impact on the appellant's life of the disadvantages associated with appellant's relationship with the deceased is appealable error.

Sheller JA I agree with Fitzgerald AJA.

Sheppard AJA In this matter I have had the advantage of reading the judgment to be delivered by Fitzgerald AJA. I am in agreement with his Honours reasons and conclusions, and with the orders which he proposes.

Fitzgerald AJA The appellant, Mrs Robyn Brown, who is about 50 years of age, applied for provision for her maintenance and advancement out of the Estate of Aldur Kaljo (the "deceased") pursuant to s7 of the Family Provision Act 1982. The application was dismissed on 11 June 1997 under subs9(1) of that Act.

It is accepted that the appellant is an "eligible person" in relation to the deceased within the meaning of subs6(1) of the Family Provision Act in that she is:

"a person:

(i) who was, at any particular time, wholly or partly dependent upon the deceased person; and

(ii) who... was, at that particular time or at any other time, a member of a household of which the deceased person was a member..."!.

The Court's powers under s7 and s8 of the Family Provision Act are subject to s9. So far as is presently material, subs9(1) provides that, where an application is made for an order under s7 by a person such as the appellant, "... the Court shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors".