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. 2. In the event that the Husband pays the sum referred to in Order 1, the Wife shall forthwith upon receipt of the said payment, hand to the Husband or his nominee a Memoranda of Transfer in registrable form of all her rights, title and interest in the said Maroubra property together with a Withdrawal of Caveat No.W886403 also in registrable form. 3. The Wife herey (sic) relinquishes any claim she might have against her Husband with respect to any sums which the Husband may receive upon the termination of his employment as a Waterside Worker, including any claim for long service leave, holiday pay, sick leave accrual, superannuation, retirement or redundancy benefit. 4. Except as otherwise referred to herein, each party covenants that the other is the sold legal and beneficial owner of all items of matrimonial furniture, savings and any other property now in possession of that other party. 5. Each party covenants to execute a Deed of Release of any claim against the other under the Family Provision Act, if requested to do so by the other party. 9 It appears that no request was made by either party for execution of any deed of release of claims under the Family Provision Act, and no such deed was executed. 10 The appellant transferred her interest in the Maroubra property referred to in the terms of settlement to the deceased in mid-1992, and in the transfer she acknowledged payment of the $150,000 referred to in the terms of settlement. The evidence suggested that the appellant experienced some difficulties in obtaining the $150,000 because of misconduct by a solicitor. However, the primary judge was not satisfied that there was any significant amount of that $150,000 ultimately lost to her. 11 In about 1992 the appellant purchased a unit at Astra Retirement Village, Bondi for $80,000. She left this unit in about 1993 receiving $52,000 for her interest. She then moved to Edina Retirement Apartments at Waverley, paying $60,000 as a licence fee for a small self-care granny flat where she still resides. 12 Her only income is the aged pension of about $370 per fortnight or perhaps a little more. She has no other significant assets apart from a bank account of about $2,600. The appellant was aged 68 in September, 2000 and although she has some health problems the evidence suggested she was in reasonable health for her age. 13 The property of the deceased at the time of his death and its estimated values were as follows: the home unit at Maroubra $195,000; furniture, watches and jewellery $500; cash $105; money in banks $27,412; life policies $135,010; total $358,027. 14 The beneficiaries under the will were distantly related to the deceased, and had not met the deceased during his lifetime. They are students in their early twenties. They have no other significant property but the primary judge found that they have good prospects in life. 15 The appellant, as a former wife of the deceased, was an eligible person within paragraph (c) of the definition in s.6 of the Family Provision Act, and accordingly was subject to the provisions of s.9(1) of the Act, which is in the following terms: 9(1) Where an application is made for an order under section 7 by an eligible person who is such a person by reason only of paragraph (c) or (d) of the definition of "eligible person" in section 6 (1), 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. 16 The primary judge reviewed the facts as I have summarised them and after some discussion of the applicable principles concluded his judgment with the following paragraphs:- It is clearly established that factors which may warrant the making of an application by a former wife include any factors which prevented the making of an order for property settlement under the Family Law Act, such as premature death of the husband. Those are not the circumstances here as the property claims were fully dealt with and satisfied. Another category sometimes encountered is where the former wife continues to make contributions to the welfare of her former husband after dissolution of the marriage. There is no comparable element in this case as the relationship had ended completely before the property settlement and there was no later conduct or relationship of any kind. I have addressed the circumstances actually put forward in submissions for consideration and I do not regard them as constituting factors which warrant the making of the application. I have reviewed the facts generally and I do not see any others. I would think that the making of an application is warranted where there are significant matters for consideration in relation to the question posed by s.7, whether provision ought in the opinion of the Court to be made out of the estate or notional estate having regard to the present circumstances. There had been a property settlement which on its face dealt with all property, there was no further attempt to re-open the property settlement during Mr Mulcahy's lifetime and no grounds appear on which there could have been such an attempt; Mr Mulcahy was a party to cl.5 of the Terms of Settlement which although not effective as it had not been adopted by the Court, gave what for most purposes would give some assurance that the plaintiff was not to look to him for further provision. The later course of the lives of both of them and the resources available to them fell well within the range of foreseeable events for them both. In the circumstances I see no real prospects of it being established that Mr Mulcahy in his lifetime ought to have made provision for the plaintiff or, to return to the terms of s.7, that the Court should form the opinion having regard to the circumstances at the present time that provision ought to be made for her maintenance or advancement in life. The whole subject of claims by her against him and his property was dealt with fully, past and closed, so that there was no reason for it to engage his attention or bounty thereafter, and in my view there is no reason why the Court should take any action either. 17 Mrs Robinson, who appeared for the appellant before us, submitted that the circumstances of the appellant's application, the circumstances of her life, her financial circumstances, her health, the size of the estate, the circumstance that the deceased's will left the whole property to persons with no legitimate claim on the deceased, and the length of the marriage of the appellant to the deceased, considered together, were sufficient to bring the appellant over the threshold provided by s.9 of the Family Provision Act, and then in turn sufficient to justify an order under s.7 of the Act. 18 Mrs Robinson referred us to the case of Dijkhuijs v Barclay (1988) 13 NSWLR 639, and submitted that that case indicated that there were not limited categories which had to be satisfied before a person could pass the threshold set by s.9 of the Act and have the benefit of a finding that there are factors warranting the making of the application. 19 Mrs Robinson submitted that the primary judge dealt with the matter in part by specifying two categories, namely, in the case of an application by a former wife, factors which prevented the making of an order for property settlement under the Family Law Act and, secondly, cases where the former wife continues to make contributions to the welfare of her former husband after dissolution of the marriage. Mrs Robinson submitted that, having found that this case did not come within either of those categories, the primary judge did not adequately address the question whether factors could be shown in some other way in this case. 20 Mrs Robinson submitted that it was dangerous to approach the matter as a matter of satisfying or not satisfying a requirement of a particular category: the appropriate approach was to look at all the circumstances and to see if all the circumstances demonstrated factors warranting the making of the application. 21 Mrs Robinson submitted in this case, if the deceased as a wise and just testator had seen the appellant in her poor circumstances, with no prospect of improvement or assistance, indeed, the prospect of many further years of life with worsening financial circumstances, surely he would have considered it appropriate to leave something to her out of the sizeable estate, rather than leave everything to distant relatives. 22 Mrs Robinson pointed to passages in the judgment where Bryson J had considered the appellant's circumstances at the time of the family law settlement, and submitted that he did not adequately consider her circumstances at the time of the application. 23 Mrs Robinson submitted that error could be found in the judgment, perhaps by reference to the primary judge's approach as limiting the available categories, but also because of the unreasonableness of the result which he reached in all the circumstances. 24 In my opinion the primary judge's decision is one which can be overturned by this Court only if this Court is satisfied that there has been some error of law or mistake of fact, or if some other error appears in the judgment, such as taking into account irrelevant considerations or disregarding relevant considerations, or alternatively if the result of the decision is unreasonable in such a way as to indicate some other latent error in the judgment. 25 In my opinion the appellant has not shown any error of this kind in the decision of the primary judge. It is not for this Court to consider for itself de novo what it would decide to be the appropriate result. It is necessary for error to be demonstrated. In my opinion the primary judge did not purport to place any limitation on the categories of cases in which the s 9 threshold can be passed, did not fail to take into account the appellant's present circumstances, and did not take into account any irrelevant matter. I am unable to say that the result is unreasonable in a way requiring the intervention of this Court. 26 For those reasons in my opinion the appeal should be dismissed with costs. 27 HANDLEY JA: I agree. 28 CAMPBELL AJA: I also agree. 29 HANDLEY JA: The orders of the Court will be as pronounced by Hodgson JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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