Mulcahy v. Weldon [2002] NSWCA 206

New South Wales Court of Appeal

CITATION : Mulcahy v. Weldon [2002] NSWCA 206 FILE NUMBER(S) : CA 40525/01 HEARING DATE(S) : 27 June 2002 JUDGMENT DATE : 27 June 2002

PARTIES : Patricia Elizabeth Mulcahy - appellant Paul John Weldon (as trustee of the Estate of the late John Robert Mulcahy) - respondent JUDGMENT OF : Handley JA at 27, 29; Hodgson JA at 1; Campbell AJA at 28

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT SC4732/99 FILE NUMBER(S) : LOWER COURT Bryson J JUDICIAL OFFICER :

COUNSEL : Mrs. L. Robinson for appellant Mr. C. Bevan for respondent SOLICITORS : G.H. Healey & Co., Bondi for appellant Turner Freeman, Sydney for respondent CATCHWORDS : SUCCESSION - FAMILY PROVISION - Application by former wife of deceased - Dismissed by primary judge - No error shown. LEGISLATION CITED : Family Provision Act 1982, s.9 CASES CITED: Dijkhuijs v. Barclay (1988) 13 NSWLR 639 DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40525/01 SC 4732/99

HANDLEY JA HODGSON JA CAMPBELL AJA

Thursday 27 June 2002 MULCAHY V. WELDON Judgment 1 HODGSON JA: On 12 June, 2001 Bryson J in the Equity Division made an order dismissing proceedings brought by the appellant, Patricia Elizabeth Mulcahy, under the Family Provision Act against the respondent, Paul John Weldon, the executor of the will of the late John Robert Mulcahy. 2 On 22 June, 2001 the primary judge ordered to the effect that the appellant pay her own costs of the proceedings and that the costs of the respondent come out of the estate. 3 The appellant appeals to this Court from the order made on 12 June, 2001. 4 I will begin with a brief outline of the circumstances. 5 The deceased died at a date which cannot be exactly established between 19 April, 1998 andV20 May, 1998 aged sixty-seven. On 16 October, 1998 probate was granted to the respondent of the deceased's last will made on 31 July, 1992. By the provisions of that will which took effect the deceased appointed the respondent executor and gave the whole of his property to the respondent and his sister, Susan Weldon, in equal shares. 6 The appellant is the former wife of the deceased. She was born on 26 August, 1932. She married one William Moffat in 1953. Mr Moffat died in 1965 and the appellant has three adult children of that marriage. The appellant married the deceased on 9 January, 1971 and their marriage was dissolved by a decree of the Family Court of Australia in about 1989. The appellant attributes her separation from the deceased, which took place in about 1988, to his alcoholism and his extreme violence towards her. 7 In the Family Court of Australia, application was made by one or both parties for a property settlement, and this application was disposed of by orders made on 21 March, 1990. Those orders were as follows:- UPON APPLICATION made to the Court this day AND UPON HEARING the legal representations of both parties IT IS ORDERED 1. That by consent orders be made in terms of paragraphs 1 2 & 3 of the document titled "Terms of Settlement" dated the 19th day of March 1990 filed herein and attached hereto. AND THE COURT NOTED: the terms of paragraphs 4 and 5 of the said "Terms of Settlement". 8 Those orders referred to terms of settlement dated 19 March, 1990. Those terms were signed by the appellant and the deceased and their respective solicitors, and they contain the following provisions:- 1. By way of property settlement that the Husband:- Pay to the Wife the sum of $150,000.