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Husband and wife divorce after 19 months of marriage
Dr and Ms L met in 1984 when he was practicing as a GP and she
was his patient. Shortly after meeting, they commenced a
relationship and their daughter was born in 1986.
Dr and Ms L married in 1988. However, the relationship was short
and they separated in 1990, after 19 months of marriage.
Family Court proceedings were commenced in April 1992 and the
property settlement was finalised in December 1992, with Ms L
receiving 38% of the property pool.
The divorce was finalised in 1995.
Husband dies without leaving will and estate goes to
Dr L died in June 2014, about 24 years after separating from Ms
L. He did not leave a will, but did leave behind an estate worth $5
At the time of his death, Dr L was estranged from his daughter,
whom he had not seen in 13 years.
Following the grant of administration by the Supreme Court, the
estate was distributed to the daughter under the rules relating to
the distribution of an estate on intestacy.
Ex-wife successfully claims for family provision and daughter
Ms L made a claim against her ex-husband's estate under the
NSW Succession Act 2006 ("the Act"), which
allows a former spouse to make a family provision claim against an
At the time, Ms L's financial circumstances were poor, with
her main source of income being the disability support pension that
she had been receiving since being injured in a car crash in 2000.
She also had ongoing health problems, including diabetes and
chronic pain, as well as restrictions from the spinal injuries she
had suffered in the car accident.
In 2017, the Supreme Court ruled in favour of Ms L and awarded
her $750,000 out of her ex-husband's $5 million estate.
The daughter made an application to the NSW Court of Appeal to
appeal this decision.
case a - The case for the daughter
case b - The case for the ex-wife, Ms L
As a former spouse, my mother is only eligible to make an
application for family provision out of my father's estate if
she can demonstrate that my father had a moral obligation to make
some provision for her.
My mother and father's relationship ended almost a quarter
century ago and their financial settlement was a "clean
break". It took into account that my mother's earning
capacity was less than my father's and that she would have
ongoing care responsibilities for me. Although I lived with my
mother, my father always complied with his child support
obligations and also gave additional financial support over and
above his legal responsibilities.
For the last 24 years of my father's life, my mother's
attitude towards him was one of relentless persecution as she
pursued her stated aim of making his life a misery. My mother also
refused to let my father see me unless he paid ever increasing
amounts of child support. Once, she even accused him of planning to
kidnap me and sought an apprehended violence order against him. The
proceedings were dismissed and my father described these events as
"deeply humiliating". My mother once wrote to my father
that unless he paid my university fees, she would "personally
make what is left of [his] wretched life not worth
My mother's financial problems were partly attributable to
her pursuit of costly and unsuccessful legal proceedings against my
father, including an unsuccessful claim for damages for breach of
My mother claims that the circumstances of the break up of her
marriage to my father caused her psychiatric disabilities which
have impaired her ability to gain employment. However, the only
evidence she has provided to support this are psychiatric reports
that are over 20 years old. There is also no evidence that my
mother suffered from any psychiatric condition at the date of the
Given the "clean break" after my parents'
separation and my mother's behaviour towards my father, my
father did not owe a moral obligation to make provision for her.
The court must overturn the trial judge's decision.
Under succession law, a family law settlement does not preclude
me from making a family provision claim, and my ex-husband still
had a moral obligation to make provision for me.
When the Family Court divided up our assets, the judge assumed
that I would complete my university studies and secure employment.
This did not eventuate. My care responsibilites towards our
daughter precluded me from securing employment until 2000, at which
time I was in a motor vehicle accident that prevented me from
After the family law settlement, my ex-husband accumulated the
substantial assets which ultimately became his $5 million estate.
He was only able to do this because I raised our daughter all on my
own, with minimal involvement from him.
He also caused the circumstances of need that I find myself in.
His conduct during our relationship and our marriage breakdown left
me with deep psychological scars that have impaired my mental
functioning. For example, he engaged in inappropriate sexual
conduct towards me while I was a patient, for which the NSW Medical
Board made a finding of professional misconduct against him.
Although the psychiatric reports before the court are old, they
establish that my ex-husband's conduct caused me to develop a
psychiatric illness that disabled my mental functioning. As the
psychiatrist opined, my ex-husband was in a position of power and
authority over me and the trauma experienced by me "is thus
much more complex and qualitatively different from the trauma of a
normal marriage breakdown since it represents a betrayal and an
exploitation by a person in a fiduciary relationship".
It's true that my behaviour towards my ex-husband was
hostile, but this was caused by my psychiatric disabilities and
should not preclude me from making a family provision claim.
It was wrong of my ex-husband to leave everything to our
daughter and nothing to me. There is something unbecoming about an
arrangement under which I am left in circumstances of considerable
need, reliant on a social security pension, whilst our daughter,
whom I raised on my own, inherits in excess of $5 million.
Given my husband's role in causing my position of need and
the size of his estate, he had a moral obligation to make provision
for me, and the court should dismiss my daughter's appeal.