Supreme Court New South Wales

• Medium Neutral Citation: Westwood v Quilty & Ors [2013] NSWSC 109
• Hearing dates: 12,14.09.2012; 22,23,24,25.10.2012
• Decision date: 01 March 2013
• Jurisdiction: Equity Division
• Before: Lindsay J

Decision

Family provision orders to be made in favour of plaintiffs. Parties invited to make submissions about the form of orders to be made, and costs.

• Catchwords: SUCCESSION - family provision and maintenance - eligible person criteria; - de facto relationship - whether family orders should be made - beneficiaries joined as parties in proceedings.
• Legislation Cited: Succession Act 2006 NSW; Interpretation Act 1987 NSW
• Cases Cited: In the Will of W.F. Lanfear (Deceased) (1940) 57 WN (NSW) 181 at 183; Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503; White v O'Neill [2010] NSWSC 1193 at [30]-[33]; Marando v Rizzo [2012] NSWSC 739 at [45]-[57] and [129]; Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675 at [75]-[78]; Andrew v Andrew [2012] NSWCA 308 at [6] and [12]-[16] per Allsop P; [26]-[42] per Basten JA; and [68]-[70], [77]-[94], [97] and [101] per Barrett JA.; Taylor v Farrugia [2009] NSWSC 801 at [57]-[58]; Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70
• Texts Cited: -
• Category: Principal judgment
• Parties: Jennifer Westwood, Jordan Anthony Ross, Madison Isabel Ross, Conner Alexander Ross, Siobhan Linette Ross (Plaintiffs); Russell Joseph Quilty, Bryan Sullivan,; Jessica Margaret Quilty and Thomas Michael Quilty (Defendants)
• Representation: P O'Loughlin (Plaintiffs); CP Reeve, solicitor (3rd, 4th and 5th Plaintiffs); BJ Miller, solicitor (1st and 2nd Defendants); S Jacobs (3rd and 4th Defendants); Sewell Solicitors (Plaintiffs); Garland Hawthorne Solicitors (1st and 2nd Defendants); Troy Peisley Solicitor (3rd and 4th Defendants)
• File Number(s): 2011 / 103758

Judgment

1 Graham Clifford Quilty ("the deceased") was born on 14 August 1949. He died in Tumut New South Wales, on 15 July 2010, aged nearly 61 years. He was, by character, a person predisposed to avoid conflict: a "conflict avoider".

2 These proceedings for family provision relief under Part 3 of the Succession Act 2006 NSW demonstrate, by the ferocity with which they have been fought and the costs incurred in doing so, that not everyone who loved the deceased shared that quality.

3 An amount equal to more than half the fund of $1,407,257.03 or thereabouts amenable to orders under the Succession Act at the time of the final hearing (comprising a net estate valued at about $635,718.72 together with an agreed notional estate valued at about $771,538.31) has been spent on lawyer-client costs referable to the proceedings.

4 The incurring of those costs has been driven by two failed mediations; a liberal approach to joinder of parties and separate representation; and a four day hearing necessitated by a proliferation of witnesses on issues of profound importance to the parties, but of marginal significance to the outcome of the proceedings.

5 Whether or not the first plaintiff was living in a de facto relationship with the deceased at the time of his death (so as to bring her within the definition of an "eligible person" by virtue of s 57(1)(b) of the Succession Act and to ground a grant of relief in her favour under s 59) the evidence plainly establishes that she was, at least for a time, both partly dependent on him and a member of the same household as him so as to bring her within the definition of "eligible person" by virtue of s 57(1)(e) in circumstances in which (within the meaning of s 59(1)(b)) there are factors which warranted the making by her of a family provision application. Moreover, each of her children (the second, third, fourth and fifth plaintiffs) shared with her the distinction of partial dependency on the deceased, and membership of the same household as him, in circumstances warranting the making of an application for relief, albeit at a more modest level and as an application ancillary to that of the first plaintiff.

6 It is equally clear that, for at least a time, the first plaintiff and the deceased were living in a de facto relationship (within the meaning of s 57(1)(b) of the Succession Act, as informed by the criteria set out in s 21C of the Interpretation Act 1987 NSW), with reasonable grounds for doubting the currency, nature and quality of that relationship at the time of the deceased's death.

7 Equally clear, on the evidence, is the existence of a strong, continuous bond of natural love and affection between the deceased and his own, natural children, the third and fourth defendants.

8 Despite these parameters of the proceedings, a disproportionate effort was invested (principally by the third and fourth defendants and, consequentially, by the plaintiffs) in a bitter examination of the whole course of the first plaintiff's relationship with the deceased. Not until the latter stages of the final hearing did the third and fourth defendants contemplate the possibility, albeit painful for them, that the plaintiffs were each entitled to the status of an "eligible person".

9 Without absolving the lawyers from all responsibility for this predicament, I have, with some reluctance, come to the conclusion that a substantial reason for the disproportionate costs incurred in the conduct of the proceedings can be found in the conduct of the deceased.

10 In the latter years of his life he occupied a space between two families, with at least one overlapping and three intervening relationships. The first family was that of his marriage to Suzanne Roddy (1981-1993) which produced two much loved children, the third defendant Jessica Margaret Quilty (born 2 October 1985) and the fourth defendant Thomas Michael Quilty (born 11 August 1988). The second family was a less formal, and now hotly controversial, one associated with the deceased's relationship with the first plaintiff, Jennifer Westwood and her four children by a former relationship.

11 The first plaintiff was born on 15 February 1967. Her children, by a marriage which ended in divorce on or about 2 November 2003, are the second plaintiff, Jordan Anthony Ross, born 5 July 1991; the third plaintiff, Madison (Maddy) Isabel Ross, born 21 January 1995; the fourth plaintiff, Conner Alexander Ross, born 11 December 1997; and the fifth plaintiff, Siobhan Linette Ross, born 15 February 1999.

12 In the last six years of his life the deceased managed to make overtures of reconciliation towards his first family - principally his children, Jess and Tom, but also to some extent his former wife, Suzanne - and to establish a relationship, to develop that relationship and then selectively to express misgivings about his relationship with the first plaintiff.

13 Shortly after he took up with the first plaintiff, he suffered a mild heart attack and a stroke (in July 2004) which led to bypass heart surgery in September 2004.

14 This demonstration of his mortality may have heightened the need for reassurance in the minds of the divergent family members who loved him, nurtured latent antagonisms between those competing for his affections and coloured his reflections on retirement.

15 Driven by his own anxieties, and a need to have his cake and to eat it too, the deceased made different, conflicting statements to different people about the nature and quality of his relationship with the first plaintiff. He showered gifts on her, funded a lifestyle for her and her children which they would not otherwise have enjoyed, and planned with her his prospective retirement to a property at Noosa Heads, in Queensland.

16 On 29 February 2008, invoking a romantic leap year tradition, she proposed marriage to him and thereafter, with him, plotted a course which, she reasonably assumed, would end in marriage. He bought her an engagement ring. She was entitled, unless disabused by him, to proceed, as she did, on the assumption that they would, in time, be married.

17 On the other hand, when in the presence of his children towards the end of his life, the deceased played towards their natural distaste for the first plaintiff, encouraging them to believe that his ardour had cooled and he was engaged in a process of distancing himself from her, emotionally as well as physically.

18 This duality in the deceased's life explains, in my assessment, at least some of the passion that has sustained these proceedings. In seeking, himself, to avoid conflict, he laid the groundwork for greater, more enduring conflict in the days when, after his death, he was not around to manage it.

19 Objectively, it suited the his commercial interests to dissemble. His mother, Bess Quilty, died on 6 April 2009. Shortly thereafter he and the first plaintiff discussed plans for him to retire from his chiropractic practice in Tumut to Noosa Heads. In anticipation of them both moving to Noosa, the first plaintiff (with her children) moved there as an advance party. From about November 2009 until his death he engaged in a course of conduct in which he endeavoured to persuade a professional associate, Caprice Webb, to purchase his practice, mindful that any disclosure to her (or to others in Tumut who might, in turn, make a disclosure to her) of an intention to leave Tumut could undermine the marketability of his practice.

20 His death was unplanned. His first family believed, on reasonable grounds, that his relationship with the first plaintiff was over or, at least, winding down. She, as the matriarch of his second family, believed, also on reasonable grounds, that she and the deceased were charting a course towards a new life together.

21 In fact, the deceased had set his two families on a collision course. He died leaving a will dated 14 April 1994 which left his estate to his children, Jess and Tom. He made no provision for the plaintiffs despite the fact that, at his invitation, they were living in his home unit at Noosa Heads and they were, at least partially, dependent on him financially for maintenance of their standard of living.

22 The present proceedings were commenced by summons on 31 March 2011, within the one year time limit specified by s 58(2) of the Succession Act.

23 Probate of the deceased's will was granted by this court to the first and second defendants on 20 December 2010. The first defendant, Russell Joseph Quilty, is the deceased's brother. The second defendant, Bryan Sullivan, is a friend of the deceased.

24 The first defendant has not taken an active role in the conduct of the proceedings because his wife swore an affidavit in support of the plaintiffs. By agreement between them, as the deceased's executors, he has left the conduct of the executors' defence of the proceedings to the second defendant.

25 Evidence adduced at the final hearing demonstrated that at that time (more particularly as at 16 October 2012) the deceased's estate and superannuation benefits available for designation as notional estate (with an estimated net value of $1,407,257.02 in total) comprised the following assets and liabilities:

Assets

Fairway Drive, Tumut $365,000.00

Unit, Noosa Parade, Noosa Heads 445,000.00

1980 Nissan Navara (unregistered) 500.00

2 ORD shares - S&G Management Pty Ltd 57,169.00

Lawyers' Trust Account 7,663.60

Lawyers' NAB online account 130,000.00

Clearance sale (estimated) 3,000.00

Antique furniture (estimated) 1,700.00

Total $1,010,032.60

Notional Estate (Superannuation)

National Mutual Superannuation Plan $306,802.69

Summit Personal Super Plan 97,080.59

Quilty Superannuation Fund 367,655.72

Total assets of estate $1,781,571.60

Expenses

Westpac Investment property loan $196,560.71

Westpac Mastercard 8,378.22

Amount owing to S&G Management Pty Ltd 61,587.00

Accounts to pay by Estate $ 15,986.64

Executors' expenses (estimate only) 37,000.00

Tax on external super funds (estimate only) 54,802.00

Total Debts of Estate $374,314.57

Net Value of Estate (including super) $1,407,257.03

26 On 20 October 2011 the plaintiffs and the first and second defendants engaged in a process of mediation, before an external mediator, the outcome of which was that, subject to court approval, the proceedings were resolved. I have not been informed of the parties' terms of settlement. I have no knowledge of them.

27 As events unfolded, the settlement came unstuck because of objections on the part of Jess and Tom. On 8 December 2011 they filed a motion to set aside the settlement agreement.

28 On 13 December 2011 the court made an order for their joinder as defendants in the proceedings for the limited purpose of facilitating a determination of their motion.

29 On 9 May 2012 (after the second mediation) the Court made an order for their joinder in the proceedings generally.

30 They sought, and obtained, their joinder at their own risk as to costs: In the Will of W.F. Lanfear (Deceased) (1940) 57 WN (NSW) 181 at 183; Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503. That very warning, about their exposure to a risk as to costs, was expressly incorporated in the order for joinder made on 9 May 2012.

31 Their joinder was not necessary for the proper constitution of the proceedings. At the final hearing of the proceedings they offered no criticism of the first and second defendants' conduct of the proceedings.

32 The highest outcome that resulted from the intervention of Jess and Tom in the proceedings in the immediate aftermath of the mediation of 20 October 2011 that was that, by consent, the settlement agreement reached on that date was set aside on 9 May 2012. On that date, the court gave directions for the further conduct of the proceedings, culminating in the hotly contested final hearing of the plaintiffs' summons.

33 In the days leading to the final hearing Jess and Tom - confirmed in their roles as the third and fourth defendants - embraced an activism in their opposition to the plaintiffs' claims for relief that overreached the reasonable. With a tenacity not easily moderated they sought, and persisted in seeking, the production of documents thought likely to impeach both the first plaintiff's credit and her claim to have been in a de facto relationship with the deceased. They must have spent endless hours in analysis of records directed towards a case theory that the first plaintiff is, and should be dealt with by the Court as, nothing more than a gold-digging welfare cheat.

34 That the first plaintiff's record of dealings with the Commonwealth Government's administration of social security benefits is less than perfect is evident from the fact that she has been required to refund welfare benefits provided to her. However, I am not convinced that the harshness of the judgements made by the third and fourth defendants - advanced in these proceedings with loan funds provided by their mother - can drive the outcome of the proceedings.

35 If and to the extent that the first plaintiff misled the authorities about the nature of her relationship with the deceased, I am in no position to conclude that any transgression on her part has not been duly considered by government. Generalised suggestions that a claim to relief is tainted by illegality arising from a perceived fraud on government revenue (including welfare fraud) need to be approached with caution: White v O'Neill [2010] NSWSC 1193 at [30]-[33].

36 Moreover, in my assessment, any transgression by the first plaintiff of her civic duties is likely to have been accompanied by acquiescence on the part of the deceased or, at least, not entirely foreign to his own approach to dealing with government. He was a person who, in the conduct of his own affairs, was averse to paying, or allowing, more to revenue authorities than he thought fair. His former wife (the mother of the third and fourth defendants) testified to that, including his propensity to conduct business on the basis of undeclared cash receipts. His approach to financial management, even vis á vis members of family, was self indulgent.

37 Ultimately, the Court must remain focussed on the judgements required of it by the legislation (Part 3 of the Succession Act) governing the proceedings before it. It cannot allow itself to be unduly deflected by collateral inquiries which, although they undoubtedly lend colour to an assessment of how people lived their lives, do not ultimately govern an assessment of the evidence, generally, bearing upon the substantial character of the personal relationships that need to be the subject of findings in these proceedings.

38 At the final hearing the principal combatants were the first plaintiff (on the one hand) and (on the other) the third and fourth defendants. Both were represented by counsel. The children of the first plaintiff (including a tutor appointed to represent those who were minors) appeared to moderate their claims for relief when interrogated, in the course of the hearing, by the deceased's executors. The children were represented by a solicitor, independently of the solicitor for the first plaintiff, but they were, in practical reality, represented by the same counsel as their mother.

39 Having been represented by senior counsel in the early stages of the proceedings, the executors (the first and second defendants) appeared at the final hearing by their solicitor.

40 The evidence adduced at the final hearing establishes to my satisfaction that the deceased, the first plaintiff and her children lived together: first, at the first plaintiff's parents' home in Snubba Crescent, Tumut, between August 2004 and October 2008 or thereabouts; secondly, at the deceased's residence at Fairway Drive, Tumut, between October 2008 and 9 August 2009 or thereabouts; and, thirdly, at the deceased's unit at Noosa Heads.

41 Throughout those times, and at those places, the plaintiffs were members of the same household of the deceased. The fact that the deceased, for his own convenience, maintained the semblance of a separate household (at Fairway Drive, Tumut) while he was living with the plaintiffs at the Snubba Crescent residence, and while they were living at his Noosa Heads unit, does not diminish the fact that he was a member of the same household as them. On the other hand, the fact that he did maintain the semblance of a separate household at Fairway Drive permitted him to manage his complex personal relationships and negotiations for the sale of his chiropractic practice. He was able to live at Fairway Drive when the third defendant lived there with him, and to present himself to his prospective purchaser as committed to continued residence in Tumut. He lived a life that was more than one dimensional.

42 Each of the plaintiffs was, throughout the period commencing in or about August 2004, partly dependent upon the deceased, whose largesse provided them with a standard of living not otherwise available to them. The fact that the first plaintiff had other sources of income from time to time, including welfare benefits paid to her as a single parent, does not diminish the practical reality of the plaintiffs' dependence upon the deceased.

43 In his membership of the same household as the plaintiffs, the deceased developed, and maintained until his death, a de facto relationship with the first plaintiff. It is not necessary to decide, precisely, at what point their relationship developed to the stage of warranting characterisation, at law, as a "de facto relationship"; the critical point under the legislation is the time of the deceased's death.

44 Section 21C of the Interpretation Act 1987 NSW defines the expression "de facto relationship" for the purposes of s 57 (1)(b) of the Succession Act.

45 So far as is presently material s 21C (2) provides that, for the purposes of any Act, "a person is in a 'de facto relationship' with another person if they have a relationship as a couple living together", and s 21C (3) contains a non-exhaustive list of factors to be taken into account on a determination of whether two people have, for the purposes of s 21C (2), a "relationship as a couple".

46 The enumerated factors, which are to be taken into account in the context of "all the circumstances of the relationship", direct attention to the duration of the relationship; the nature and extent of the parties' common residence; the existence or otherwise of a sexual relationship; the degree of financial dependence or inter-dependence and any arrangements for financial support between the parties; the ownership, use and acquisition of property; the degree of mutual commitment to a shared life; the care and support of children (not, in terms, limited to children born of the relationship); the performance of household duties; and the reputation and public aspects of the relationship.

47 Judged against these criteria, and case law summarised by Justice Hallen (as he now is) in Marando v Rizzo [2012] NSWSC 739 at [45]-[57], the evidence points overwhelmingly to the existence of a de facto relationship, at least until such time as the plaintiffs moved to the Noosa unit. The first plaintiff and the deceased had a sexual relationship. They shared income, albeit that the deceased's income was greater. The deceased provided accommodation for the plaintiffs. He also paid ordinary living expenses for them, including payments for food, clothing, education, holidays and general recreation. He allowed the first plaintiff access to his credit card. They entertained together. And they became engaged to be married. The evidence before the Court includes a photograph of the first plaintiff, in the company of the deceased, wearing an engagement ring he had given her. They shared a personal commitment to one another.

48 The third and fourth defendants deploy against the plaintiffs a confidential note written by the first plaintiff to the deceased, after a confrontation with the third defendant, in 2006. The younger woman had apparently requested that the older woman be required to make an appointment if she wanted to use the deceased's swimming pool at the Fairway Drive property. The first plaintiff's note is evidence of an outpouring of righteous anger on her part in the context of her perception that the deceased had failed to support her against intermeddling on the part of his daughter.

49 The third and fourth defendants invite the Court to read the note as an "ultimatum" demonstrating, presumably by admission on the part of the first plaintiff, that the deceased had denied the existence of a "relationship" with the first plaintiff even in private.

50 In fact, as I read the note, it is supportive, not destructive, of the plaintiffs' claims. The fact that it was adduced in evidence by the defendants, not proffered by the first plaintiff as a self-serving document, adds to, rather than detracts from, its authenticity. It provides contemporaneous corroboration of the first plaintiff's assertion that she regarded the deceased as her "partner" and her children as part of a family unit that included both of them as "partners in life". It evidences, also, the fact (as I find) that the deceased was, at times, living a double life, shielding the depth of his relationship with the plaintiffs from his own children and others (including his cleaner) within their orbit.

51 In her note, the first plaintiff complained of the tendency of the deceased to succumb to pressure from his children to deny his relationship with her or, at least, to subordinate it to their demands. She called upon him not to allow his children to dictate his life.

52 The whole note is predicated upon the existence of an established, domestic partnership between the first plaintiff and the deceased, a relationship in which righteous anger of the type on display is not fatal to its very existence.

53 The objective fact that the relationship continued long after the note was written adds a ring of truth to the first plaintiff's account of her relationship with the deceased, and the enmity of the third and fourth defendants towards her.

54 The third and fourth defendants have allowed themselves to be blinded by their own, limited perspective of their father and their heartfelt disappointment that their family life with him did not follow the pattern of their dreams.

55 The difficulty presented in the case is not whether, at some time, there was a de facto relationship between the first plaintiff and the deceased, but whether such a relationship existed (as s 57(1)(b) of the Succession Act requires) "at the time of the deceased person's death."

56 That difficulty arises because the plaintiffs moved to the Noosa unit (owned by the deceased) and, while actively marketing his chiropractic practice for sale in Tumut, the deceased maintained the semblance of a separate household at his Tumut residence; and at that time (for reasons which can be explained, if not wholly so, as motivated by his commercial convenience) he made utterances to others that appeared to distance himself from the plaintiffs. He remained in regular contact with the first plaintiff, by telephone and reciprocal visits, while he lived in Tumut and the plaintiffs lived in Noosa.

57 The picture he presented to the world at his death was not unlike the closing scenes of a movie in which the film abruptly comes to an end as the leading players are about to move towards one or another of a range of anticipated outcomes. The drama is heightened by an invitation to members of the audience to finish the story as they will. Different viewers anticipate different outcomes.

58 I am not entirely persuaded that it is necessary, or even desirable, for the Court to make a choice about how the story's ending should be characterised. The plaintiffs are, at least, "eligible persons" within the meaning of s 57(1)(e) of the Succession Act. That is sufficient to bring them within the ambit of s 59 of the Act. Whether or not the first plaintiff's de facto relationship with the deceased continued until the time of his death, or came to an end shortly before his death, is, in the circumstances of the case as a whole, not a major factor affecting the Court's consideration of the operation of s 59.

59 Nevertheless, the point has been argued and the parties are entitled to a determination of the question whether, within the meaning of s 57(1)(b), the first plaintiff is "a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death".

60 In my assessment, that question should be answered in the affirmative. The objective fact is that, at the time of the deceased's death, the plaintiffs were living in a residence (at Noosa Heads) owned by the deceased. They were living there with his consent, and under this protective influence. The first plaintiff and the deceased were engaged to be married. This was not a nominal, or contrived, commitment. I accept the first plaintiff's evidence that she continued in her belief that she and the deceased were, in fact, to be married. She had reasonable grounds for her maintenance of that belief. To the extent that the deceased may, in Tumut, have appeared to distance himself from the plaintiffs, his conduct can be explained on the basis that he was managing his business interests in a manner which, although not without an element of deception, was not beyond the realm of human experience.

61 I am not satisfied (as the defendants contend) that, at the time of his death, the deceased, in fact, held an intention not to marry the first plaintiff. On the contrary, I accept that his intention at that time was to honour his commitment to marry her and that the plaintiffs' move to Noosa, while he sought to sell his business in Tumut, was in aid of an intention on his part of retire there, with the first plaintiff, in due course.

62 This is not a case which, on its facts, demonstrates the existence in the deceased of an intention (whether communicated or not) to end his relationship with the first plaintiff: Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675 at [75]-[78] per Slattery J, followed in Marando v Rizzo [2012] NSWSC 739 at [129].

63 In summary, I am satisfied that each of the plaintiffs is an "eligible person" within the meaning of s 57 of the Succession Act and, so, satisfies that prerequisite for the making of a family provision order for which s 59(1)(a) provides. The first plaintiff is an eligible person by virtue of s 57(1)(b), rendering unnecessary any consideration of the operation of s 57(1)(f), as well as any further consideration of ss 57(1)(e) and 59(1)(b) in their application to her. Each of the other plaintiffs is an "eligible person" by virtue of s 57(1)(e) and, having regard to all the circumstances of the case, my finding, for the purpose of s 59(1)(b), is that there are factors which warrant each of them making an application for a family provision order. Those factors are to be found in the fact that, in anticipation of marrying their mother, and having provided for them throughout his relationship with their mother, the deceased moved them from the region in which they lived, to Noosa Heads, without making any testamentary provision for them.

64 Those factors are stronger in relation to Jordan (the second plaintiff) than in relation to the other children because he is at an age (21 years) when he is emerging from his mother's shadow, he has experienced difficulty in securing regular employment, he has received a disability support pension and he has personal debts.

65 The judgments about the adequacy of provision made, or to be made, for an "eligible person" that are required by ss 59(1)(c) and 59(2) to be made by the Court, by reference to community standards, are to be made with the factors enumerated in s60 in mind: Andrew v Andrew [2012] NSWCA 308 at [6] and [12]-[16] per Allsop P; [26]-[42] per Basten JA; and [68]-[70], [77]-[94], [97] and [101] per Barrett JA.

66 I am satisfied, for the purposes of s 59(1)(c) that adequate provision for the proper maintenance, education or advancement in life has not been made for the plaintiffs, or any of them, by the deceased. He left them nothing in his will. Having raised their standard of living, and their expectations, he made no provision for them. His last will was made before he met the plaintiffs. They are in need of assistance to adjust to life without him.

67 Upon a consideration of s 59(2) - the question what provision "ought to be made for the maintenance, education or advancement in life" of the plaintiffs having regard to the facts known to the Court - the principal difficulty is how to deal with the first plaintiff's claim for relief and how that claim should be dealt with in competition with the entitlements of the third and fourth defendants to a substantial share of the available assets.

68 The deceased left each of the plaintiffs and his children, the third and fourth defendants, in circumstances in which they needed material support, and in which they had a reasonable expectation of continuing support from funds within his control. None of them is, independently, flush with funds.

69 The first plaintiff has assets with an estimated value of approximately $45,000. Her monthly income of about $2,800 is routinely exceeded by demands on her for ordinary living expenses. She owes money to family and friends ($30,000), St Andrew's Anglican College (not less than $25,000) and Centrelink ($60,000). I leave to one side, but do not ignore, the crippling legal costs she has incurred for herself, and for her children, in the conduct of these proceedings since the intervention of the third and fourth plaintiffs. If not permitted to continue in the deceased's Noosa unit rent free, she will need to pay rent on alternative accommodation for herself and (save for Jordan) her children.

70 With assistance from the deceased during his lifetime she, from time to time, pursued self improvement through education. Whether or not, as the future unfolds, she will want, or be able, to renew any form of study remains to be seen. To do so while caring for her children in the years of their adolescence and early adulthood (and maintaining, or searching for, employment to meet ordinary living expenses) will not be free of difficulty.

71 Even with assistance from the estate or notional estate of the deceased - such as can be made available - the first plaintiff's children have suffered, and must continue to endure, a reduction in their standard of living. The deceased's largesse is no longer available. They are, in my assessment, entitled to an award of modest provision to assist in the amelioration of their straitened circumstances. Such an award cannot, at least in the circumstances of this case, be justified on the basis that it is necessary to mark an acknowledgement that, despite the challenges of the third and fourth defendants, they did in fact form part of the deceased's family. However, they might well draw comfort from an award of provision as an acknowledgement that they did have a family relationship with the deceased.

72 As the eldest child, struggling with his own personal health issues and debts (not less than $25,000) as he endeavours to strike out on his own, Jordan has special needs that require a greater amount of provision than that available to his siblings. Nevertheless, it cannot, in the circumstances of competing claims to the deceased's bounty, do more than ease his path a little.

73 The needs of the third and fourth defendants are large, and not diminished by their inability to accept that their father had voluntarily assumed obligations towards, and heightened expectations of, the plaintiffs. Although adults, they are entitled to look to their father's estate for assistance: cf Taylor v Farrugia [2009] NSWSC 801 at [57]-[58]. Each of them presented to the Court as a very capable young adult with the prospect of a successful career. Their mother is entitled to be proud of them, as their father undoubtedly was.

74 The third defendant has modest assets (valued at about $37,000), dwarfed by her liability to repay her mother half the moneys advanced by her mother to the fourth defendant and herself for the payment of legal costs associated with these proceedings. She is employed full time as an Administration Officer with North Sydney Council on an income of approximately $63,000 a year. She is engaged in ongoing studies designed to facilitate her career in public administration; she has some health issues that require management on an ongoing basis; and she has an aspiration to acquire a home unit near her workplace. Leaving aside any need she may have to make provision for payment of debts associated with the costs of these proceedings, she is living within her means.

75 The fourth defendant is not quite living within his means at the moment as he endeavours to establish himself in his trade as a carpenter and as a rowing coach. He has assets, including tools and equipment, with an estimated value of approximately $43,000, with an outstanding liability to a finance company of approximately $19,600 referable to a car loan, as well as his half share of the liability he and the third defendant have to repay their mother for moneys advanced to meet the costs of these proceedings. Like his sister, he has health problems that require management and he has an aspiration to own his own residence in or about the area in which he works.

76 The respective claims of the second, third, fourth and fifth plaintiffs (respectively Jordan, Madison, Connor and Siobhan) are relatively modest and, by reason of that modesty, can be allowed with less controversy than attends their mother's claim. Jordan seeks, and should be granted, an amount of $20,000. Each of the other three children seeks, and should be allowed, $10,000.

77 The common assumption upon which all parties approached the final hearing was that the deceased's superannuation entitlements would be available for disposition in these proceedings, either as part of his estate or as notional estate to be designated. That assumption was based on a further assumption, that the quantum of calls on the deceased's estate (for both substantive and costs orders) is of such an order that resort to notional estate is likely to be necessary. In my assessment, that underlying assumption is correct.

78 In final submissions the solicitor for the first and second defendants was charged with the forensic task of satisfying me that the Court has jurisdiction to make, and should make, an order (under Part 3.3, comprising ss74-90, of the Succession Act) for the designation as notional estate of the deceased the benefits payable under the superannuation policies in which the deceased had an interest.

79 In his performance of his forensic challenge, he (on notice to, and with the acquiescence of, all parties) filed, after the conclusion of the hearing, an affidavit which elaborated those superannuation benefits, payable on the deceased's death: s 80. Of the $771,538.31 or thereabouts attributed to superannuation in an executor's affidavit, $306,802.69 related to benefits payable under a "National Mutual Superannuation Plan", $97,080.59 related to benefits payable under a "Summit Personal Super Plan" and $367,655.72 related to benefits payable under the "Quilty Family Superannuation Fund": ss 76(2)(e) and 77(3). The respective trustees of those funds have yet to exercise their discretion as to the identity of the person, or persons, to whom superannuation benefits within their control are to be paid.

80 I am satisfied that the claims upon the deceased's bounty are of such an order of magnitude, and the costs incurred in these proceedings are of such an order, that the deceased's estate is insufficient for the making of the family provision orders, and the costs orders, that should be made: ss 83(1)(a), 88(b) and 89.

81 The fact that the final hearing was conducted upon a common assumption that an order for designation could and would be made highlights the fact that an order for designation could not reasonably be said to be likely to interfere with any reasonable expectations in relation to property, and the dictates of justice, as well as the merits of the parties' competing claims, require that an order for designation be made: s 87.

82 In these circumstances, I propose to make orders (so far as may be necessary) for all of the superannuation benefits payable in relation to the deceased to be designated (under Part 3.3 of the Succession Act) as notional estate for the purposes of the family provision orders, and the costs orders, to be made in these proceedings: ss 78, 89.

83 If (as I have found) the third and fourth defendants overreached themselves in their opposition to a finding that the plaintiffs were "eligible persons", in fairness, it should be noted, each of the first plaintiff (on the one hand) and the third and fourth defendants (on the other hand) could be said to have maintained, in competition with one another, unrealistic claims to a greater share of the resources available to satisfy their legitimate expectations.

84 The first plaintiff aspires to be treated as if, after a relationship of six years, she is the deceased's principal beneficiary, and as if the third and fourth defendants should be left, largely, to fend for themselves, with whatever assistance their mother might cast their way. For herself, she asks to be given the Noosa unit (valued at $445,000), plus a "modest legacy" and costs: cf Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70.

85 For their part, the third and fourth defendants maintain their opposition to any, or any substantial, grant of relief being made to her. Having lost a battle on one front, they slide easily into continuing the war on another. Their object appears to have been to oppose the first plaintiff at every turn, exemplifying Clausewitz's maxim that "war is merely the continuation of policy by other means": On War, Book One, Chapter One, Section 24.

86 The first and second defendants added value to their participation in the final hearing by maintaining a greater level of detachment than the other parties found themselves able to do.

87 Their principal submission was that the Court could find that the plaintiffs had sufficiently benefited from cohabitation with the deceased that the Court would be justified in determining that adequate provision had already been made for them, with the consequence that the summons should be dismissed with costs. However, that submission appears, at least in part, to have been advanced in aid of an observation - substantially correct in itself - that the first plaintiff's claim for relief reflects her confusion between her lifestyle choices and her needs. There is some justice in the observation that the first plaintiff, by these proceedings, is seeking to maintain the lifestyle that she, and her children, experienced during her relationship with the deceased and she has elevated that aspiration to a need.

88 An alternative submission made by the first and second defendants bears closer examination. They submit that provision should be made for the first plaintiff in the total sum of $176,800. That amount, they suggest, makes allowance for one year's rent in accommodation other than the Noosa Heads unit ($20,800), living expenses for a year ($36,000), moving and other expenses ($5,000) and debt repayment ($115,000).

89 That submission was accompanied by a submission (which, unless severe restrictions are to be placed on recoverable costs, I accept) that the competing claims on the available pool of resources are such that an order probably should be made for the sale of the Noosa unit. The practical reality is that a sale is likely to be necessary if the competing claims on the deceased's bounty, and costs, are to be met. Moreover, given the nature of the assets available in the estate, and notional estate, a sale of the Noosa unit might be expedient in marshalling property to ensure that the requisite payments are made.

90 In my assessment, the alternative submission of the first and second defendants is close to the mark, subject to two qualifications. The first is that I do not accept that the proposed quantification of the first plaintiff's claim should be taken as absorbing whatever provision might otherwise be made for the third, fourth and fifth plaintiffs (Madison, Connor and Siobhan). The second is that I decline to accept the first and second defendants' invitation to cast any grant of relief to the first plaintiff in the form of a protective trust.

91 The claims for relief made by or on behalf of the children have been advanced independently of, although in conjunction with, the first plaintiff's claim for relief; the respective claims of the younger children should not be subsumed in any grant of relief made to the first plaintiff, particularly if (as the first and second defendants contend) the first plaintiff is, having regard to her exposure to liability for legal costs in these proceedings, "insolvent".

92 Imposition on the first plaintiff of anything like a protective trust would not, in my opinion, provide any material benefit to the first plaintiff and, in any event, the submission that the first plaintiff is "insolvent" is predicated upon an assumption about what might, or should, happen about the costs of these proceedings.

93 I propose to order that the first plaintiff be allowed provision of $175,000 from the estate or notional estate of the deceased. In quantification of that amount, I do not embrace the first and second defendants' particularisation of their alternative submission. It is neither necessary nor appropriate for me to do so. The amount of $175,000 that I have selected is based, more broadly, upon an assessment of the provision that should be made for the first plaintiff in the context of resources available to meet the competing claims of the plaintiffs and the deceased's own children, the third and fourth defendants.

94 To allow to the plaintiffs any more than I have proposed would not, in my assessment, pay due regard to what is due to the third and fourth defendants. To allow the plaintiffs less than I have proposed would, in my assessment, be to leave them with inadequate provision. They are entitled to assistance to enable them to adjust to life without the deceased.

95 In quantifying the amounts of provision to be made for the plaintiffs I have proceeded on the basis that they have been allowed, until the determination of these proceedings, to live in the deceased's Noosa Heads unit on a rent free basis. I have factored that into my assessment of the amounts of provision that should be allowed to them.

96 I do not propose to make any final orders in the proceedings until such time as the parties have had an opportunity to make submissions on the questions of costs and the form of the substantive orders to be made.

97 Subject to any further submissions that may be made by the parties, I propose to make orders directed towards the following outcome:

(a) An order, or orders, for the designation of superannuation entitlements as notional estate of the deceased to the extent necessary to satisfy the court's orders for provision and costs.

(b) If necessary or expedient, orders for the sale of the Noosa Heads unit with vacant possession, coupled with ancillary orders for the plaintiffs to vacate those premises in favour of the first and second defendants as executors of the deceased's estate.

(c) Orders for the payment of legacies in favour of the plaintiffs in the total sum of $225,000, comprising individual legacies of $175,000 for the first plaintiff, $20,000 for the second plaintiff, and $10,000 for each of the third, fourth and fifth plaintiffs.

(d) An order that those legacies not bear interest if paid within a period of three months of the making of final orders (with interest to accrue from the expiration of that three months period at the rate provided for in the Probate and Administration Act 1898, 84A(3)).

(e) An order that the costs of the first and second defendants be paid out of the estate or notional estate of the deceased on the indemnity basis.

(f) An order that the costs of the plaintiffs be paid out of the estate or notional estate of the deceased on the ordinary basis.

98 As presently advised, I do not propose to make any order for payment of the costs of the third and fourth defendants out of the deceased's estate or notional estate. They are, in effect, the deceased's residuary beneficiaries. The practical reality is that, to the extent that the costs of other parties (particularly the costs of the plaintiffs, their principal opponents) are paid out of the deceased's resources, they personally will ultimately bear the burden of any costs orders.

99 I propose, upon publication of these Reasons for Judgment, to invite the parties to make submissions about the form of orders to be made, and costs, generally. I will give directions for that purpose, including a direction that short minutes of orders be brought in to give effect to the judgment.

100 The topics to be addressed in the drafting of short minutes should include provision for identification of particular property upon which orders for provision and orders for costs, respectively, should be charged.

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Decision last updated: 01 March 2013