Decision Impossible, Part 2: Appeal against disabled son’s FPA dismissed, with costs

Near the end of last year, I wrote a post about an FPA by a disabled son where provision was ordered in favour of that son to the detriment of the surviving widow of the deceased. This was, I feel, aptly described in the title as “Decision Impossible” as the effect of the order was going to force the sale of the family home.

The widow appealed the decision by the Supreme Court of NSW and yesterday, that judgement was published.

The appeal was ultimately dismissed with costs and the order in favour of the disabled son remained in place.

In the appeal, Cowap v Cowap [2020] NSWCA 19, the grounds of the appeal were set out at para 39 as follows:

  1. that the primary judge failed to give adequate weight to the claim of the widow, who was the deceased’s wife for 57 years and 90 years of age;
  2. that the primary judge erred in accepting the submission that the widow would eventually and inevitably have to leave the property;
  3. that the primary judge erred in failing to give adequate weight to the deceased’s Will, his moral obligation and community expectation that he would leave his whole estate (by survivorship) to his wife of 57 years;
  4. that the order was manifestly excessive to the point of ‘disrupting and jeopardising’ the widow’s entitlement to the family home and therefore was an error in the exercise of the primary judge’s discretion;
  5. that the order was manifestly excessive by ordering provision which allowed the disabled son to purchase accommodation of his choosing outright and force the widow to have to sell the family home which had deep sentimental attachment, rather than ordering some lesser form of accommodation.
  6. that the primary judge erred in accepting the submission that the disabled son’s need for accommodation was immediate when the property he was renting at trial was at no risk of expiring.

As to the discretion of the primary judge, the Court of Appeal said:

In exercising his discretion as to the provision that should be ordered in favour of the respondent [disabled son], it was for His Honour to determine what weight should be given to relevant factors. That an appellant court might consider that greater or lesser weight should have been given to such factors does not constitute a basis for the court interfering with a discretionary decision (see for example, Bugmy v The Queen (2013) 429 CLR 571; [2013] HCA 37 at [27]). Instead it is necessary for an appellant to establish error in accordance with the principles stated in House v The King (1936) 55 CLR 499 at 505, which require it to be shown that there has been an error of principle or as to the facts, a failure to take into account a relevant consideration, or that the decision is “unreasonable or plainly unjust” (ibid).

Paragraph 42

In respect of the relevant factors, the Court of Appeal noted that the complaint by the widow that relevant factors were given insufficient weight “‘tacitly concedes’ that the factors have not been left of account altogether” and that it was plain from the judgement that the primary judge gave ‘earnest consideration to the essence of the matters‘ that were complained about by the widow in the appeal (para 43).

In respect of the disabled son’s adequacy of accommodation, the Court of Appeal said:

His Honour’s acceptance of the claim was not, as the appellant submitted, based on the respondent’s evidence that he would probably be ‘evicted’ from his present rental premises. Rather, it was based upon his Honour’s conclusion that the respondent’s physical and mental condition was such that he needed to own his accommodation and not be subject to the insecurity and potential lack of suitability of rental accommodation (see Judgement [58] quoted in [21] above). This conclusion derived support from the expert and other evidence before his Honour (s[17] -[19] above).

Paragraph 47.

As to alternative accommodation options for the disabled son as submitted at trial, the Court of Appeal said:

In particular, the appellant suggested that the respondent would be able to find suitable rental accommodation and that he had ‘managed different accommodation” in the years since his heart attack. Against this stands the primary judge’s conclusion, which was reasonably open to him, that the respondent needed secure accommodation tailored to his needs. The evidence did not demonstrate that rental would satisfy this need. Nor was it a fair summary of the evidence to say, as the appellant submitted, that the respondent had “managed’ the varying accommodation he had since his heart attacks. Rather, the evidence indicated that the respondent had encountered difficulties in using rental accommodation and that, as his Honour held, in financial terms the respondent and Ms Zajic were “just able to cover their living expenses and nothing more”. In any event, in exercising his discretion his Honour was not confined to consideration of the bare necessities of life (Steinmetz v Shannon [2019] NSWCA 114 at [132] per Brereton JA).

Paragraph 48

Thirdly, the appellant submitted that the Department of Housing long term disabled housing and nursing home accommodation were reasonable alternatives that the primary judge should have considered. The respondent however gave unchallenged and uncontradicted evidence that there was a 10 year waiting list for public housing. As for nursing home accommodation, the respondent’s affidavit referred to his strong aversion to nursing homes. he said that if he had to go into a nursing home, he thought he would die.

Paragraph 49

His Honour was conscious of this aversion as the respondent also referred to it in cross examination. It was a matter to be taken into account, along with many other factors, including the appellants own strong preference concerning her accommodation, in the balancing process which his Honour had to undertake. His Honour clearly did so as he referred to it as one of the “possibilities” for the respondent’s future. The effect of his orders was to reject it.

Paragraph 50

As to the primary judge’s conclusion noting that the widow would eventually have to leave the family home, the Court of Appeal said:

The appellant submitted that there was no evidence to support this proposition and that it was not put to her in cross-examination. There are however two ways in which the proposition could be understdood, neither of which involves an error on the part of hte primary judge.

Paragraph 52

First, it may be that his Honour was simply stating, perhaps euphemistically, a truism thta, whether or not illness or other circumstances might cause the appellant to leave the property earlier, her eventual death would result in that occuring. Bearing in my her age (91), the potential length of her remaining life would inevitably be far shorter than the three decades or so that the 64 year old respondent might remain alive.

Paragraph 53

Alternatively, his Honour may simply have been intending to state, in general terms, the uncontroversial proposition that common experiences indicate that illness, or simply the ageing process, would probably eventually result in the appellant having to leave the property.

Paragraph 54.

As to the weight of deceased’s Will by the primary judge, the Court noted that the primary judge was ‘fully cognisant of the term’s of the deceased’s will’… ‘it’s contents became of limited significance when the repsondent’s circumstances changed so dramatically and tragically when he had heart attacks after hte deceased’s death” (para 56).

In conclusion, the Court of Appeal rejected the appeal with costs noting that the appeal had not established an error of principle or facts or any failure to take into account material considerations and, in so doing, said:

“I do not consider the primary judge’s decision to be of this character. His Honour carefully weighed the completing claims of the appellant and respondent. He properly recognised the appellant’s strong claims on the testator’ bounty arising out of her long marriage and occupation of the former matrimonial home, to which the appellant had significant emotional attachment. on the other hand, his Honour also recognised the very significant needs of the respondent, which came into existence after the testator’s death. As his counsel described it, the respondent has a ‘severe and permanent disability, including cognitive impairment”. His Honour’s resolution of these competing considerations has not been shown to be unreasonable and therefore outside the range of outcomes at which his Honour could properly arrived.

Paragraph 59

You can read the full appeal judgement here.

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