Costs and Family Provision Act Cases – Significance of Practice Note SC Eq 7

Date: Nov 30, 2009
Document Type: Article

In May 2009, the Supreme Court issued a Practice Note as to the conduct of Family Provision Act cases - SC Eq 7 – Family Provision – (“the Practice Note”) which applies to claims both under the Family Provision Act 1982 and its replacement, Chapter 3 Succession Act 2006 (NSW). 

The recent decision of Judge Palmer in the Supreme Court case of Carey and Robinson emphasised the importance the Court attaches to compliance with the Practice Note in the running of Family Provision Act proceedings to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings. 

Judge Palmer observed that paragraph 4 of the Practice Note requires an applicant’s affidavit to comply with the form specified in Annexure 1 to the Practice Note which sets out the essential information to be provided in support of an application in a Family Provision Act case. Of special significance is paragraph 8 of the pro forma Affidavit that requires evidence as to “moral obligation” to be brief and relevant. 

The judgment also makes clear that the evidence of a defendant in Family Provision Act cases should display similar focus and economy. If, what use to be called “conduct disentitling” is to be raised against an applicant, the evidence should be direct, admissible and free from gratuitous insult. 

Of particular importance is paragraph 23 of the Practice Note, which provides:


If any affidavits include irrelevant material, the court may order that the party responsible for that affidavit pay: 
His/her own costs of preparing the affidavit and any time spent dealing with the affidavit in court

The indemnity costs of other parties to the proceedings in responding to the affidavit.”

Affidavits which do not comply with the Practice Note or which otherwise contain irrelevant material may attract immediate costs orders against the party responsible. 

In the Carey case, His Honour was concerned that the case for the plaintiffs should have been presented in a more straightforward and economical fashion. The first plaintiff’s first Affidavit was 62 pages in length and the annexures comprised a further 237 pages. His Honour observed that:

  • a great deal of money was spent on expert reports that were unnecessary;
  • a valuation of the land in question was ultimately agreed to between the parties as it should have been from the beginning;
  • a detailed building report describing renovations the plaintiff hoped to make was unnecessary, irrelevant and was disallowed.

The other plaintiff’s first Affidavit including annexures was 388 paragraphs and 45 pages in length. There were a further five Affidavits in Reply. 

His Honour also observed that much of the Affidavit evidence of both plaintiffs recounted events in the family’s history that were of no real significance and threw no light on the resolution of the issues.

Strict compliance with the Practice Note in the conduct of or response to an FPA claim will become an increasingly important feature of FPA claims. Failure to appreciate the intent of the Practice Note is likely to disadvantage your case.

For assistance with Family Provision Act claims, contact us, on 02 8286 4000 or by email
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