New South Wales Supreme Court CITATION : Hobbs v Maxymenko Jeske v Maxymenko (Estate of Wladimir Maxymenko] [2007] NSWSC 1226 HEARING DATE(S) : 22/10/2007, 23/10/2007, 24/10/2007 JUDGMENT DATE : 12 December 2007 JURISDICTION : Equity Division JUDGMENT OF : Associate Justice Macready at 1 DECISION : Paragraphs 82 and 83 CATCHWORDS : Family Provision. Application by daughter and grandchild. Legacy for daughter. Grandchild's claim dismissed as no dependency upon the deceased. PARTIES : Janna Hobbs v Harry Waldemar Maxymenko Lisa Jayne Jeske v Harry Waldermar Maxymenko FILE NUMBER(S) : SC 4827/2005; 5924/2005 Mr JS Drummond for Janna Hobbs COUNSEL : Miss I Ryan for Lisa Jeske Mr P. O'Loughlin for defendant Armsrong Legal for Janna Hobbs SOLICITORS : Braye Cragg for Lisa Jeske Hancock Alldis & Roskov for defendant - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION Associate Justice Macready Wednesday 12 December 2007 4827/2005 Janna Hobbs v Harry Waldemar Maxymenko 5924/2006 Lisa Jayne Jeske v Harry Waldemar Maxymenko JUDGMENT 1 His Honour: This is the hearing of two proceedings under the Family Provision Act 1982 in respect of the estate of the late Vladimir Maxymenko who died on 8 March 2004. The deceased was survived by his daughter, Janna Hobbs, who is the plaintiff in proceedings 4827/2005 and by his son, Harry Maxymenko, the defendant in both the proceedings. The plaintiff in proceedings 5924/2006 is Lisa Jane Jeske a granddaughter of the deceased. Her father, George Maxymenko, was a son of the deceased who predeceased his father. The last will of the deceased 2 The last will of the deceased was made on 28 March 2003 in which he appointed his son Harry Waldemar Maxymenko ("Harry") as his executor. Apart from a bequest of a 1991 Ford Laser station wagon the will of the deceased provided for his real property, being the balance of his estate, to pass as follows: "4. I GIVE my real estate property situated and known as number 202 Wallsend Road, Cardiff to my said grandson, James Joseph Maxymenko and my said granddaughter Holly Alina Maxymenko in equal shares as tenants in common. 5. I GIVE my real estate situated at number 204 Wallsend Road, Cardiff to my said son Harry Waldemar Maxymenko and my son George Juan Maxymenko as tenants in common in equal shares PROVIDED HOWEVER that if my said son Harry Waldemar Maxymenko shall predecease me then I give his one half share of this property to his children James Joseph Maxymenko and Holly Alina Maxymenko in equal shares as tenants in common and PROVIDED FURTHER that if my said son George Juan Maxymenko shall have predeceased me then I GIVE his one half share in the said property to my son Harry Waldemar Maxymenko. In the event that both my sons Harry Waldemar Maxymenko and George Juan Maxymenko shall have predeceased me then I GIVE the real estate property number 204 Wallsend Road, Cardiff to my said grandson James Joseph Maxymenko and my granddaughter Holly Alina Maxymenko in equal shares in tenants in common." 3 In clause 7 of the will the deceased stated as follows: "I deliberately made no provision in this my Will for my daughter Janna Klara Maxymenko (now Hobbs) for the following reasons: (a) In 1982 upon my retirement from BHP I paid to my said daughter Janna a sum of thirty four thousand dollars ($34,000) in order to discharge the mortgage which she and her husband had in respect of their property 3 Duff Place, Castle Hill. (b) In 1982 also upon my retirement from BHP I paid to the children of Janna, namely Adrian and Devina sums of seven thousand dollars ($7,000) each. (c) My said daughter Janna has had no contact with me for fifteen (15) years and neither have her children. I have been a resident of Tinonee Gardens for approximately five (5) years. As the date of this my will and my daughter Janna has not revisited me, nor made contact with me. all of my affairs are looked after by my said son Harry Waldemar Maxymenko." 4 The errors in this declaration were the subject of much evidence in the case. Assets in the estate 5 Apart from a motor vehicle and personal effects the estate consisted of two parcels of land, they being number 202 and number 204 Wallsend Road, Cardiff. At the date of the deceased's death those properties were valued at $280,000 for the former and $190,000 for the latter. The parties are agreed that at the time of trial they have a total value of $785,000. No separate valuation was available. 6 The estimates of costs of the proceedings are as follows. The plaintiff Janna Hobbs $73,000 The plaintiff Lisa Jane Jeske $47,575 The defendant's costs $53,000 Total $173,575 7 The estimate of the defendant's costs was on the basis of it being a one-day hearing. The hearing took three days and, accordingly, the costs may be higher. Family history 8 Submissions have helpfully included chronologies that I will incorporate in these reasons with some alterations. 9 The deceased was born on 11 April 1921 and his wife was born in 1917. Although it is not presently known when they married, they had three children. These were George Maxymenko ("George") born in 1944, Harry Maxymenko ("Harry") born in 1945 and Janna Hobbs born in 1950. 10 In 1949 the deceased, his wife Klara, George and Harry emigrated from Russia to Australia and commenced to reside in Newcastle where the deceased commenced employment with BHP Limited. 11 At some time prior to 1969 the deceased (and perhaps Klara) purchased the properties known as number 202 and number 204 in a street in Cardiff Newcastle. Number 202 ("number 202") has an area of 8,094 square metres. Number 204 ("number 204") has an area of 8,100 square metres. Number 202 and number 204 therefore have a combined area of 16,194 square metres (four acres) or 1.62 hectares. 12 There is situated on number 202 a brick veneer residence having a timber floor and tiled roof. Those premises were erected approximately 45 years ago. There is located on number 204 a weatherboard home on brick piers. 13 In approximately 1964 or 1965 George obtained employment as a boiler maker. In 1966 Harry obtained employment with BHP Central Research Laboratories as a metallurgist. He was then 21 years of age. In 1973 Harry obtained a licence to own and train thoroughbred racehorses. It appears that as and from that date Harry has been intimately involved in the breeding and racing of thoroughbred racehorses. 14 In June 1969 George married Karen. In 1970 their daughter Lisa Jayne was born. In 1972 George and Karen gave birth to a son Anthony David. From 1970 to 1972 George and Karen resided in number 204. There is some issue as to whether or not George paid rent to the deceased for the occupation of number 204. George and Karen separated in 1975-76. Karen subsequently married John Howarth in approximately 1976. In 1976 George therefore returned to reside with Klara and the deceased at number 202 until 1986 when he commenced to live with Christell. 15 In 1976 Harry terminated his employment with BHP Ltd. Harry was then employed by Burroughs Computers as a territory manager (i.e. salesman). That employment ceased in 1980 following which Harry has not been engaged in any paid employment to the present day. As I have mentioned in 1973 Harry obtained a licence to train and race thoroughbred race horses. His sole source of income during the period since 1980 appears to have been either prize money and/or gambling. 16 In 1971 Harry had married Christina. In 1973 they purchased a home at Curly Road, Broadmeadow. There were two children of that marriage they being James Joseph Maxymenko born in 1978 and Holly Alina Maxymenko born in 1985. 17 In 1983 Harry and Christina purchased land at Elermore Vale for the sum of $24,000. They then built upon that land a 2 storey brick house containing four bedrooms. In 1988 Harry and Christina purchased land at Broadmeadow for the sum or $95,000. That land comprises 2,199m2 and is located immediately opposite the Newcastle Racecourse. Christina Maxymenko gave evidence that the Broadmeadow land was bought with cash. Harry however asserts that it was purchased using a loan from Bill McNally in the sum of $70,000. Harry has produced no documents in support of the assertion. No mortgage was ever registered on the land at Broadmeadow. 18 In 1996 Harry and Christina separated but continued to reside in the premises at Elermore Vale until August 2001. Christina commenced employment with the NSW Department of Education in 1970. She continued in various capacities in that employment until 2004. She is now employed and resides in Singapore. To date Harry and Christina have not divorced nor has there been any property settlement. 19 In 1973 the deceased and Klara appear to have separated but continued to reside at number 202. 20 From 1976 Harry held various positions with the Newcastle, Hunter and Central Coast Trainers Association. He held those positions until 1997. These positions did not produce any income. In 1996 Harry sustained injuries as the consequence of a motor vehicle accident. In evidence Harry informed the Court for the first time that he had received $84,000 in the form of compensation. 21 It seems that from 1996 to at least 1998, if not longer, the deceased paid the mortgage repayments and other expenses in respect of the property at Cardiff. 22 In 1975 the deceased suffered a severe heart attack. Thereafter he underwent a number of operations and on 9 July 1998 was admitted to the Tinonee Gardens Retirement Village. Klara continued to reside in number 202 until her death on 23 December 2002. In the same year Harry was placed on a disability pension in part as a consequence of falling from a horse in 2000. 23 On 22 August 1985 the deceased made a will. In that will he appointed Harry as his executor. The will provided for the residue of his estate after a small specific legacy to Joseph to be divided equally between Harry and George. On 28 March 2003 the deceased wrote his last will to which I have already referred. 24 George died on 1 June 2003 with his funeral taking place on 4 June 2003. 25 I return to events concerning Janna. She ceased to reside in number 202 in 1970. In 1967 she had completed her secondary schooling at Wallsend High School having completed the Higher School Certificate. In 1968 she attended at Newcastle Teachers College completing her diploma by late 1969. In 1970 she was required by the New South Wales Department of Education to perform three years compulsory teaching. She was allocated a position at Fairfield West Primary School in 1970 where she remained until she married Graham Hobbs in late 1972. There are two children from that marriage being Adrian Hobbs born in 1979 and Davina Hobbs born in 1981 26 Prior to 1990 and despite the deceased and Klara having a volatile and strained relationship Janna was a regular visitor at number 202, travelling from Sydney to Newcastle. She did this on a regular basis, either weekly or fortnightly. In late 1989 the deceased's sister Anna came from Russia to reside at number 202 with the deceased and Klara. The presence of Aunt Anna caused increased friction between the deceased and Klara. 27 In 1990 Janna spoke to the sister of the deceased, Anna. Janna says that she spoke to her aunt, Anna, requesting that she not interfere and to let Klara and the deceased resolve their problems by themselves. Approximately one week later the deceased approached Janna and said: "Get off my property and don't come back". 28 Following this event there was little contact between Janna and the deceased until 4 June 2003 at the funeral of George. During this period Janna sought reconciliation in the early years by sending letters to the deceased and by seeking the assistance of Harry. 29 During the period from 1990 until 4 June 2003, being the funeral of George, Janna on numerous occasions sought from Harry an indication as to whether or not she could reconcile with the deceased. On those occasions Harry informed her that: "Dad disowns you and never wants to see you again." "Dad is still really upset with you, he does not want to see you again." 30 It was not until the evening before 4 June 2003 that Janna was informed by a relative that the deceased did not "hate" her. It was that event which caused her to undertake a further attempt at reconciliation at the funeral on 4 June 2003. I am satisfied from the evidence of Rosel Jeske and Fiona Ann Jeske that a significant reconciliation took place on that day. Neither person was cross-examined. From 4 June 2003 until the death of the deceased on 8 March 2004 she attended upon the deceased on at least seven occasions. The reconciliation was one sought by Janna. 31 Shortly following a visit by Janna in June 2003 the deceased ceased to reside at Tinonee and was taken to the home of Harry. On the night that this occurred the deceased suffered a severe stroke causing him to be readmitted to the John Hunter Hospital and then Royal Newcastle Hospital. Janna visited the deceased at those hospitals on a number of occasions prior to his death on 8 March 2004. 32 Following Janna's marriage to Graham in late 1972 Janna remained at home as a housewife for approximately 11 years. In 1979 Janna and Graham purchased the property 3 Duff Place, Castle Hill. Between 1987 and 1993 she commenced a Bachelor of Arts (Psychology) part time at Macquarie University. She then completed a Master of Applied Psychology. 33 In or about August 2000 Janna and Graham separated, Janna leaving the family home at 3 Duff Place, Castle Hill to reside with a cousin. Their divorce became absolute in March 2003. To date there has been no property settlement. However in May 2003 Janna and Graham sold the property at 3 Duff Place, Castle Hill for $750,000. At that time Graham had certain superannuation entitlements and accordingly Janna received approximately $450,000 which permitted her to purchase the premises at Drummoyne. Those premises were purchased for $460,000. 34 Following obtaining the qualifications as a psychologist Janna commenced to practise from premises situated at Castle Hill. She purchased those premises for $100,000. In July 2006 Janna suffered a back injury, which has caused her to reduce her workload to three and a half days per week. She continues to suffer difficulty sitting for extended periods of time. 35 I return to the history in so far as particular matters affect the plaintiff Lisa. I have referred the fact that Lisa's parents separated in 1979. After the separation her mother commenced cohabitation with John Howard. He had previously been married and had four children still living at home. Her mother and John Howard married in 1979 and in early the following year they had a child. By then they were living in the house which contained themselves and six children. 36 From the time of separation of Lisa's parents there was agreement that the children would see their father at number 202. This meant that Lisa and her brother were dropped off at their grandparents place on Friday afternoon where they would remain with their father until Sunday afternoon. This occurred almost every weekend and during the holidays Lisa stayed at her grandparents' home sometimes for a week at a time. 37 In 1987 Lisa then aged 17 years left home and moved to Queensland, then to Western Australia and other places around Australia. She saw her grandparents again at a family reunion in 1988. She endeavoured to keep in touch with them but was discouraged by the defendant saying that they were not seeing visitors. In September 2002 she went overseas. She was back in Australia year or so later and found out from the other plaintiff that her grandfather had passed away. Eligibility 38 The plaintiff Janna is an eligible person being a daughter of the deceased. The plaintiff Lisa is a grandchild of the deceased and will only be an eligible person if she was at any particular time wholly or partly dependent on upon the deceased. 39 In Ball v. Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. His Honour Mr Justice Samuels at page 490 said the following: "His Honour concluded that 'dependent' meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person', par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. 'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey L.J. In Lee v. Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probabilities'. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency." 40 His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could have only received a partial benefit. At page 492 he addressed the argument in these terms: "Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v. Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v. Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is 'the actual fact of dependence or reliance on the earnings of another for support that is the test': per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v. Reeman (1973) 128 CLR 177 at 189. 'The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. " 41 This passage emphasises the factual nature of dependency be it financial or otherwise. 42 In Benney v. Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of an emotional relationship between them. 43 In Petrohilos v. Hunter (1991) 25 NSWLR 343 at 346 the court once again considered the meaning of dependency. At page 346 the court had the following to say: "I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v. Newey (1988) 13 NSWLR 489 at 491, that '"dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'. If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop Deceased or to 'other forms of dependance analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v. Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v. Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period." 44 In McKenzie v. Baddeley (NSWSC unreported, 3 December 1991), His Honour Mr Justice Meagher, although in the minority, further discussed dependency and described it as "financial, economic or material dependency, not a mere emotional dependency". Important in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant "more than minimally" or perhaps "significantly". 45 In Williams v. Legg (1993) 29 NSWLR 687 the Court in considering a case of a young child needing mothering pointed out that the absence of financial dependence is not conclusive. 46 In Sherborne Estate: Vanvalen & Anor v Neaves & Anor [2005] NSWSC 593 Palmer J referred to the authorities dealing with grandchildren. At paragraph 41 he said as follows: "41 The following is a convenient summary of the principles which I understand to be applicable to the determination whether a grandchild is an eligible person: "25. The authorities make it clear that a grandchild is not normally regarded as a natural object of a testator's testamentary recognition and that additional factors need to be shown to bring a grandchild into the category of persons for whom the testator ought to have made provision. These additional factors usually show that the testator had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the testator has undertaken a continuing and substantial responsibility to support the plaintiff financially: see e.g. Tsivinsky v Tsivinsky (unrep) NSWCA 5 December 1991 per Kirby P; Sayer v Sayer [1999] NSWCA 340; MacEwan Shaw v Shaw [2003] VSC 318; O'Dea v O'Dea [2005] NSWSC 46. 26. The authorities are equally clear that the grandchild's dependence, whether whole or partial, on the grandparent must be direct and immediate; it is not sufficient that the grandchild's dependence is the indirect result of the testator providing support and maintenance for his or her own adult child and thereby incidentally benefiting the testator's grandchildren who are directly dependent on that child: see e.g. Petrohilos v Hunter (1991) 25 NSWLR 343, at 346; Re Fulop (1987) 8 NSWLR 679, at 682; Pearson v Jones [2000] NSWSC 799; MacEwan Shaw v Shaw (supra). 27. Further, the fact that the testator occasionally, or even frequently, made gifts to or for the benefit of the grandchild does not in itself make the grandchild wholly or partially dependent on the testator for the purposes of s.6(1)(d). To qualify the grandchild as a dependant, the gifts or benefits provided by the testator must be of such regularity and significance that one can say that the testator had clearly assumed a continuing and substantial responsibility for the grandchild's support and welfare: see e.g. Leahey & Trescowthick [1999] VSC 409; MacEwan Shaw v Shaw (supra); Pearson v Jones (supra)": Simons v Permanent Trustee Co Ltd [2005] NSWSC 223." 47 The quotation of Palmer J perhaps reflects the submissions that were made to him that he appears to have endorsed. His Honour was concerned with one period of three months when the applicant was seven years old and came to live with her mother with the deceased. He went on to say in respect of this period: "42 I am unable to accept that the period of three months in 1976 when Helen, Julia and Brett came to live with the deceased at Willow Vale qualifies as the period during which Julia was wholly or partially dependent on the deceased for the purposes of s.6(1)(d) of the Act. My reasons are as follows. 43 First, whatever assistance the deceased was giving by providing accommodation during this period may be seen as given for the support and maintenance of Helen, as the deceased's daughter, rather than as direct support and maintenance of Julia." 48 It is plain that although the plaintiff Lisa found the household of her mother and stepfather crowded she always had accommodation there. It would seem therefore that she was not dependent upon accommodation provided by the deceased but rather it was merely convenient for her to be there so that she could have access to her father. The case put forward by Lisa suggests that in fact the deceased was in loco parentis to her rather than her father while he was still residing at the deceased's residence. It is necessary to look closely at the evidence in relation to this aspect which Lisa has put forward to support dependency. 49 It is to be remembered that the purpose of the arrangements was plainly for Lisa and her brother, Tony, to have access to their father. It seems clear from the evidence that they continued to visit even after their father moved out of the grandparents' property in 1986. In Lisa's case this meant that she visited but less often up until 1988 when she left her home to make her own way in life. 50 Lisa gave evidence of the activities which occurred at her grandparents' home and these included: · Towing them behind a ride on lawn mower and a trailer · Building a swing in the garden · Teaching them how to drive the ride on lawn mower. · Playing chess with them · Playing cricket with them · Personal hygiene matters such as showing them how to brush their teeth · Giving presents and these would be stamps and occasionally money 51 Lisa also gave evidence of one occasion when she had to rely on her grandparents to help her with schoolwork. That was when she had to make a presentation at school and the deceased assisted her. Lisa noted that once her father moved out from the home she would visit her grandparents once a month as it was a place to escape and where she had fond memories. Lisa's mother gave evidence and corroborated the basic purpose of the arrangement, namely, for access with the children's father. She also spoke of the close relationship between her children and the deceased and recalled an occasion when their grandparents bought them bicycles for Christmas. Some years after Lisa had left her grandparents' home when she lived in Western Australia she bought a car and her grandmother discharged the balance of the car loan of some $7,000. Although that indicates a close relationship it is not particularly relevant to the period with which I am concerned. 52 At times during the access visits the father would not be there the entire time but generally after he had joined in the activities with his children he would go out by himself in the evenings. When the children stayed with the grandparents during school holidays their father was often working. If he took holidays he would normally go away with his friends to such places as Vanuatu. 53 What this evidence demonstrates is that there was a close relationship between Lisa and her grandfather. The purpose of the visits for most of the time was to enable her to have access to her father and as her father was living with her grandparents it was natural that there was close contact. Although her grandparents fulfilled a role in her life it is difficult to see from the little evidence there is available that they took over the role of their mother. It seems to me that Lisa's mother undertook the main parenting role with some assistance on weekends and holidays from the grandparents. This is not a situation where Lisa lived on a full time basis with her grandparents who stepped into the parent's shoes and taken responsibility for her upbringing, schooling and other matters which are important in the life of a child. In the circumstances, it seems to me that Lisa was not dependent upon the deceased. 54 If I had found dependency it would be necessary under s 9 (1) of the Family Provision Act that the Court first determine whether there were factors warranting the making of the application. Courts have dealt with this expression on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 55 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:- "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition." 56 These principles have been applied at first instance for many years. There have been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application had reasonable prospects of success, gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. Having regard to my conclusion on dependency, it is doubtful whether I would have found that there were factors warranting on the traditional basis. In any event the question does not arise as her claim must fail. 57 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:- "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." The situation in life of the plaintiff Jana Hobbs 58 Janna is 57 years of age. She is single with no dependants. She is self-employed as a psychologist and earns approximately $520 to $530 net per week. Her expenses are $695 per week. She has net assets of $621,500. This includes shares of $48,000 and superannuation of $34,000. Her consulting rooms are valued at $125,000 and her house at $630,000. Her car is an old one valued at $1,000. She has debts of $215,500. 59 She also has a claim for a property settlement against her former husband. She is claiming half of his superannuation of $600,000. There is no information which would enable me to make any realistic assessment of the likelihood of her being successful in this claim. She has already received on account of any property settlement the sum of $450,000. 60 The plaintiff Jana received benefits from the deceased during his life. These were the provision of $18,000 to $20,000 in the 1980s and the provision of a further $14,000 shortly thereafter. 61 The estrangement in the present case between the deceased and Jana in 1990 was caused by the reaction of the deceased to the approach of Janna to her Aunt Anna. The reaction by the deceased is one, which in my view, appears to have been excessive as the matters raised by Janna with her aunt were simply an attempt to reduce the conflict then present at number 202. I agree with the plaintiff's submissions that to ban ones daughter from the family home was a drastic and unwarranted course of action. In doing so the deceased demonstrated none of the wisdom expected of parents in relation to the affairs of their children. Perhaps the deceased was embarrassed and may well have thought that Janna should not have spoken to his sister. 62 The defendant consistently maintained that there had been no reconciliation between the deceased and his daughter, Jana. The defendant also strenuously maintained that he did not at any stage seek to prevent Jana from reconciling with the deceased and was adamant that the deceased did not want to see his daughter Jana. 63 I found the defendant to be an unreliable witness. He made allegations concerning Janna's participation in the issuing of an AVO against the deceased on 18 January 2002. Having regard to the other evidence it is plain that she did not attend Wallsend police station on that day and the story was simply concocted by the defendant. It was a plain attempt to provide false evidence for the purposes of advancing his case. 64 I do not accept be defendant's evidence as to the reconciliation which took place between the deceased and his daughter at the son George's funeral. There was reconciliation and she continued to see him thereafter from 2003 until the date of death. 65 It is clear that the defendant played a significant role in seeking to prevent any reconciliation occurring. In early 2002 when Janna attended at 202 the defendant said the following: "Keep away, this is my property. Bad things happen in Sydney like what Gonzales did to his mother, father and sister. That will happen to you." 66 The defendant did not in any affidavit address or deny this statement. In oral evidence he described it as "garbage". This statement apart from its menacing and threatening effect ,in my view, provides clear support for the conclusion that despite Klara and the deceased being alive, the defendant held the strong belief that the property was "his" and that no person was going to take it away from him. Janna was not cross-examined on these issues. 67 Evidence of the defendant's deliberate attempts to prevent reconciliation are also to be found in the evidence referred to in the following submissions: (a) shouting at Janna to "Get out, get out" of Tinonee on 14 June 2003. (b) threatening the social worker present in (a) above on 14.6.03 by waving his finger and mouthing "wait and see" ; and (c) informing the hospitals to which the Deceased was admitted following his stroke on 1 August 2003 that the Deceased did not want the hospital staff to permit Janna to visit him. This instruction was given despite the Deceased not possessing after 1 August 2003 sufficient capacity to give such instructions, a fact in respect of which the defendant was fully aware having given direct oral evidence on this issue. 68 Preventing a reconciliation with the deceased would ensure that the deceased would not reconsider his will and make provision for Janna as a consequence of her changed circumstances. The defendant was plainly motivated by self-interest and his actions were not that of an executor simply seeking to uphold the will. 69 Janna's circumstances have changed from that which applied when she and the deceased discussed his 1985 will. At that time Janna was married to a man who earned a large income with significant potential to accumulate assets in the future. That situation ceased to exist in 2001. Despite the defendant's assertion that the deceased was aware of the change in Janna's circumstances no amendments were incorporated into the 2003 will to reflect those changes. 70 In my view there is nothing in the evidence to suggest that the claim of the plaintiff Janna should be affected by the absence of contact between 1990 and 2003. 71 It is also necessary to have regard to the situation in life of others having a claim on the bounty of the deceased. In this case the only persons are the defendant and his two children James and Holly. The situation in life of the defendant 72 The defendant is 60 years and is unemployed. He does not seem to have had any gainful employment since 1980. He is separated her from his wife Elizabeth who may make a claim under the Family Law Act. 73 The defendant and his wife own two properties and his wife has some substantial superannuation. Their home is valued at $400,000. They also have a property at Broadmeadow which is vacant land on which stables are erected and which is opposite the Newcastle racing facility. That is likely to have a value of $300,000. His wife has superannuation in the order of $480,000. He has a mortgage of $130,000. 74 The defendant receives a disability pension of $259 per week and receives rent from his son who occupies the property of $200 per week. 75 The defendant received benefits from the deceased during the deceased's lifetime. A benefit was the use of the land of the deceased so that the defendant could carry on his horse training business. He also received from the deceased $20,000 in 1982 as did his sister and the deceased paid his mortgage instalments for some time from 1996. 76 The defendant's son James has few assets other than his interest in the estate. He has modest excess of income from his job with the Taxation Department over expenditure. He had a good relationship with the deceased. 77 The defendant's daughter Holly is 22 years of age and she is studying for a Bachelor of Arts degree and is presently overseas. She has a car is worth approximately $2000 and her interest in the estate. She has accumulated a HECS debt of $13,864. She earns $400 per week being partly a scholarship and partly a youth allowance and this is used to support herself. 78 In due course James and Holly and would like to share number 202. 79 It is necessary to see how Janna says she has been left without adequate and proper provision for her maintenance, education and advancement in life. The need that Janna advances is that she wishes to repay her mortgage of $215,000 and have a fund for contingencies. She is still working at 57 years of age and she cannot work full time. In due course when she ceases work she will be able to sell her consulting rooms which will give her a fund in the future. 80 It seems that the deceased's reason for leaving part of his estate to his grandchildren being the sons of Harry are because they chose to retain the name "Maxymenko". I note that this was the deceased's wish but plainly he should have regarded the provision for his daughter as something which would have priority over claims by his son's children. 81 Harry has his own properties and although his future is uncertain in terms of the property settlement he does have some assets of his own. In the circumstances it seems appropriate that the plaintiff, Janna Hobbs, should receive a legacy in the sum of $200,000. 82 The orders that I make are as follows: 1. I order that the plaintiff, Janna Hobbs, receive out of the estate of the deceased a legacy in the sum of $200,000. 2. I order that the costs of the plaintiff, Janna Hobbs, and the defendant's costs in both proceedings be paid or retained out of the estate of the deceased. 83 In proceedings 5924 of 2006 Lisa Jane Jeske v Harry Waldemar Maxymenko I dismiss the proceedings. I will hear the parties on what costs' orders should be made. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.