Smoje v Forrester

[2017] NSWCA 308

NSW Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Family provision and maintenance
3. › Eligible persons
4. › Close personal relationship
5. › Whether parties 'living together'
6. › Repeated visits for care without common occupation of residence
7. › Succession Act 2006 (NSW), ss 3(3), 57(1)(f), 59
1. Evidence
2. › Expert evidence
3. › Findings as to mental disability
4. › Whether trial judge entitled to make findings as to mental condition without expert evidence
5. › Whether such findings could be used to assess credibility
1. Appeal
2. › Appellate review of findings of fact
3. › Whether finding reasonably open on the evidence
4. › Uncontested evidence and accepted evidence of respondent

Quick Take

'Living together' within the meaning of s 3(3) of the Succession Act 2006 (NSW) ordinarily requires elements of interaction and sharing whilst engaging in activities associated with occupying the same place; repeated visits for a singular purpose such as providing care, without more, are insufficient. A trial judge may not make findings as to a party's mental health condition, or use such findings to assess credibility, in the absence of expert medical evidence.