Supreme Court of New South WalesSUCCESSION - Claim by daughter of the deceased for a family provision order under Succession Act 2006 - Defendant a son of the deceased and the executor named in Will of the deceased, to whom Probate was granted, who opposes Plaintiff's claim - Whether provision made for Plaintiff is adequate - Competing claim by Defendant - Only notional estate of small value

Pletersky v Pletersky [2012] NSWSC 277 (27 March 2012)

Last Updated: 28 March 2012

Supreme Court New South Wales

Case Title:	Pletersky v Pletersky
Medium Neutral Citation:	[2012] NSWSC 277
Hearing Date(s):	19 March 2012
Decision Date:	27 March 2012
Jurisdiction:	Equity Division
Before:	Hallen AsJ
Decision:	(a) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that she is to receive a lump sum of $90,000. (b) Orders to be made designating property as notional estate but at the request of the parties an opportunity is given to them to reach agreement on both the form of the orders and the burden of costs. (b) The parties are to bring in short minutes that reflect these reasons. If agreement is not reached on the terms of the orders, there may be further short argument. (c) The matter will be adjourned to a date suitable to the parties and the Court no later than 14 days from the date hereof.
Catchwords:	SUCCESSION - Claim by daughter of the deceased for a family provision order under Succession Act 2006 - Defendant a son of the deceased and the executor named in Will of the deceased, to whom Probate was granted, who opposes Plaintiff's claim - Whether provision made for Plaintiff is adequate - Competing claim by Defendant - Only notional estate of small value
Legislation Cited:	Family Provision Act 1982 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Practice Note SC Eq 7
Cases Cited:	Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959 In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218 Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218 Buckland deceased, Re [1966] VR 404 Clayton (dec'd), Re [1966] 1 WLR 969 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Dugac v Dugac [2012] NSWSC 192 Edgar v Public Trustee for the Northern Territory[2011] NTSC 5 Foley v Ellis [2008] NSWCA 288 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Kay v Archbold [2008] NSWSC 254 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) (1981) 2 NSWLR 532 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 Mayfield v Lloyd-Williams [2004] NSWSC 419 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, Young J, 17 May 1996, unreported)
Texts Cited:
Category:	Principal judgment
Parties:	Wilma Bernadette Pletersky (Plaintiff) Milan Darko Pletersky (Defendant)
Representation
- Counsel:	Counsel: Mr R Quickenden (Plaintiff) Mr B Skinner (Defendant)
- Solicitors:	Solicitors: Fitzpatrick Solicitors Pty Ltd (Plaintiff) Alison Butler & Associates (Defendant)
File number(s):	2011/52891
Publication Restriction:

JUDGMENT

1. HIS HONOUR: Wilma Bernadette Pletersky ("the Plaintiff"), who is a daughter of Ljubica Pletersky ("the deceased"), applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

2. The Plaintiff commenced the proceedings, by originating Summons, filed on 17 February 2011, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). The Defendant named in the Summons is the son of the deceased and the Plaintiff's brother, Milan Darko Pletersky. He opposes the Plaintiff's claim.

3. There is no actual estate, in the present case, so the Plaintiff seeks provision out of the notional estate of the deceased. I shall return to the basis of the claim to designate property as notional estate later in these reasons.

Formal Matters

4. The following facts are uncontroversial.

5. The deceased died on 7 August 2010. She was then aged 90 years, having been born in March 1920.

6. The deceased was married, but her husband, who is the father of the Plaintiff and the Defendant, left them many years ago. There was another child of the marriage, Maria Milena Hudson ("Mrs Hudson"), who has not commenced any proceedings, but who has sworn an affidavit read in the Plaintiff's case. She was present throughout the hearing of the proceedings.

7. The evidence reveals that the Plaintiff last saw her father when she was 11 years of age and spoke to him, by telephone, when she was about 33 years old. It may be that Mrs Hudson has heard from him more recently, but neither she nor the parties appear to know his present whereabouts. The Defendant believes that he went overseas some years ago.

8. The deceased's husband does not appear to have had any contact with the deceased after they separated. Nor is it suggested that he made any contribution to the property of the deceased held by her at the date of death.

9. The Defendant was born in July 1960 and is aged 51 years. Mrs Hudson was born in June 1956 and is aged 55 years.

10. The deceased left a Will that she made on 24 August 2006, in which she appointed the Defendant as executor and trustee. On 23 November 2010, this court granted Probate of the deceased's Will to the Defendant.

11. The deceased's Will, relevantly, provided:

"3.I GIVE DEVISE AND BEQUEATH all of my property both real and personal of whatsoever nature and wheresoever situate to my Son MILAN DARKO PLETERSKY absolutely but should he predecease me then I GIVE DEVISE AND BEQUEATH my said Estate unto my grandchildren KANE JESSE JAMES SAPKOVSKI, MATHEW PLETERSKY and MELANIE PLETERSKY in equal shares, share and share alike, as tenants in common.

4.I DECLARE that the reason I have not provided for my Daughters VILMA PLETERSKY (sic) and MARIA HUDSON as they have left home about thirty years ago and they have rarely communicated with me since they left and shown no interest in me or my welfare either financially physically or emotionally."

12. The substitute beneficiaries named in Clause 3 of the deceased's Will are the son of the Defendant and the two children of the Plaintiff. In the events that have happened, none of them has any interest in the deceased's estate as the whole estate passes to the Defendant absolutely. It is not suggested that any of the deceased's grandchildren is an eligible person.

13. Although the Defendant attended upon the solicitor who prepared that Will, he was not present when the deceased gave instructions to the solicitor. The Defendant was called into the room after the Will had been made and asked whether he was prepared to be the executor and trustee. It was then that he found out the contents of the Will.

14. In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, gross value of $500,000. No liabilities were disclosed. The actual estate, at the date of death, was said to consist of real property at Petersham, registered in the sole name of the deceased ($500,000), and household furniture and contents (no commercial value). (I have omitted any reference to the cents and shall continue to do so.)

15. In an affidavit sworn on 22 June 2011, the Defendant disclosed that there was no actual estate remaining as he had distributed the Petersham property to himself as beneficiary. However, the Defendant did disclose funeral expenses of the estate totalling $17,238. These expenses, however, had been paid. Of the amount paid, $13,838 is now repayable to Mr Hudson, the brother-in-law of the parties and the husband of Mrs Hudson. (The balance was paid by the Defendant who received the amount of $3,400, from Centrelink, as a "bereavement payment". It is not repayable out of the estate or otherwise.)

16. It was not until after the long adjournment on the day of the hearing that the parties were able to agree upon the current value of the Petersham property and whether it could be designated as notional estate in whole or in part. Prior to that time, the value of the Petersham property advanced by one side or the other ranged between $570,000 and $640,000. Commendably, the parties agreed that I should treat the current gross value of the Petersham property to be $605,000 at the date of hearing.

17. The parties also agreed that the Petersham property must be sold, if for no other reason than to repay the part of the funeral expenses repayable to Mr Hudson and to pay the Defendant's costs of the proceedings. The agreed costs and expenses of sale are estimated to be about $20,000 and are made up of agent's commission and costs of advertising ($17,500) and legal costs of sale ($2,500).

18. Using the above estimates, at the hearing, the parties then agreed that the estimated value of what may be designated as the current net distributable notional estate, after repayment of part of the funeral expenses ($13,848) and costs and disbursements of sale ($20,000) (but subject to the payment of the costs of the proceedings) is about $571,152.

19. In calculating the value of the estate, finally available for distribution out of notional estate, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate, or notional estate, of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs be paid out of the same estate or notional estate.

20. The Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, have been estimated to be in the order of $71,000 (inclusive of GST and upon the basis of a two day hearing). Counsel for the Plaintiff (from the bar table) asserted, without objection, that the costs and disbursements of the Plaintiff, including counsel's fees, calculated on the ordinary basis, and upon the basis that the hearing concluded in one day (which it did), are no more than about $50,0000.

21. The Defendant's costs and disbursements of the present proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a one day hearing), have been estimated by the Defendant's solicitor, to be about $41,000.

22. For the purposes of the hearing, the parties agreed that I should determine the case upon the basis that the estimated value of what may be designated as the notional net distributable estate, after the payment of costs, if costs are ordered by the court to be paid out of the notional estate, and if the estimates prove accurate, will be about $480,162. Of course, depending upon the result, the costs and disbursements, if payable out of the notional estate, will be able to be formally assessed, unless otherwise agreed.

23. Although the subject of discussion, both parties rejected the alternative of ordering any provision for the Plaintiff as a percentage of the net proceeds of sale of the Petersham property.

Notional Estate

24. By Transmission Application dated 19 January 2011 and lodged with the Registrar General, the Defendant caused the Petersham property to be registered in his name "as beneficiary of the will ... of the deceased registered proprietor".

25. The lodgement of the Transmission Application followed the receipt, by the Defendant, of a letter dated 14 January 2011, sent to him, at the Petersham address, in which letter he was informed of the Plaintiff's intention to make an application for a family provision order. There is no suggestion that he was unaware of the Plaintiff's intention to make a claim for a family provision order, at the time he lodged the Transmission Application.

26. No doubt, for this reason, the Defendant's counsel accepted that it was appropriate, in the circumstances of this case, to make an order designating property as notional estate in order to satisfy any family provision order to be made in favour of the Plaintiff and for the purposes of an order that the whole, or part, of the costs of proceedings be paid from the notional estate of the deceased: s 78 of the Act.

27. However, during submissions, each party's legal representatives requested me to simply determine the quantum of the provision to be made for the Plaintiff by way of family provision order and to allow them an opportunity to reach agreement on both the form of the orders and the burden of costs, or, if no agreement was reached, to allow them the opportunity to make further submissions. In view of the joint request, I shall do so.

28. In these circumstances, it is unnecessary to refer to the provisions of the Act relating to notional estate.

29. The parties and their legal representatives are to be commended upon the manner in which the case was conducted, particularly in making appropriate concessions and not spending undue time on matters of little, or no, importance, to the determination of the case, or which were not the subject of real dispute between them.

Eligible Persons

30. The persons described as eligible persons, within the meaning of the Act, are the Plaintiff, the Defendant and Mrs Hudson. No prescribed notice was served upon each of the grandchildren of the deceased as persons beneficially entitled to the net distributable estate of the deceased: Practice Note SC Eq 7, paragraph 7. However, as said, there is no suggestion that each, or any, of them, is an eligible person under the Act.

31. Of course, the husband of the deceased is also an eligible person. I am asked to disregard his interests as an eligible person upon the basis that "service of any notice is unnecessary, unreasonable, or impracticable, in the circumstances of the case": s 61(2)(b) of the Act.

32. I am prepared to do so since there is nothing to suggest that he has had anything to do with the deceased for over 40 years. In any event, there is no evidence that either party is currently aware of his whereabouts. In the circumstances, I determine that service of the notice upon him is unnecessary and impracticable. The parties should include the name of the deceased's husband in any short minutes that include this determination.

33. Only the Plaintiff has commenced proceedings. However, the Defendant has given evidence of his financial and material circumstances and his competing claim upon the bounty of the deceased. Mrs Hudson, another eligible person, appeared only as a witness in the case. She was not cross-examined. It is clear that she is well aware of the proceedings and has chosen not to make any claim.

The Statutory Scheme - The Act

34. I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they be able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in their application.

35. It is important to remember that even though the estate is quite small, all the relevant circumstances have to be considered before the court's decision is made. As has been said, "the smallness of the estate neither excludes jurisdiction nor full consideration": Re Clayton (dec'd) [1966] 1 WLR 969 at 971-2, per Ungoed-Thomas J.

36. The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

37. The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a child of the deceased" (s 57(1)(c) of the Act). Clearly, that language is expressive of the applicant's status, as well as his, or her, relationship to the deceased. There is no age limit placed on the child making an application.

38. The Court, if satisfied of the applicant's eligibility, must then determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process.

39. Other than by reference to the provision made in the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.

40. It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment".

41. Importantly, there no longer appears to be any sanction to consider, in s 59(1)(c) of the Act, the provision made by the deceased during his, or her, lifetime for the applicant (see, s 9(2) of the former Act).

42. Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application. Under s 59(2), the Court has regard to the facts known to the court at the time the order is made.

43. The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [1994] HCA 40;(1994) 181 CLR 201, per (Mason CJ and Deane and McHugh JJ) at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant.

44. Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190at [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).

45. Tobias JA said:

"42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.

...

47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred."

46. In Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127at [81]-[84], Buss JA said, in respect of the first stage of the process:

"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.

'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11.

The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.

Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."

47. In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the Plaintiff is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.

48. The second stage of the process arises under s 59(2) and s 60(1)(b). Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

49. Section 60 of the Act, at least in part, is new. It provides:

"(1)The court may have regard to the matters set out in subsection (2) for the purpose of determining:

(a)whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person, and

(b)whether to make a family provision order and the nature of any such order.

(2)The following matters may be considered by the court:

(a)any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b)the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,

(c)the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d)the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,

(e)if the applicant is cohabiting with another person-the financial circumstances of the other person,

(f)any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g)the age of the applicant when the application is being considered,

(h)any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i)any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,

(j)any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k)whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l)whether any other person is liable to support the applicant,

(m)the character and conduct of the applicant before and after the date of the death of the deceased person,

(n)the conduct of any other person before and after the date of the death of the deceased person,

(o)any relevant Aboriginal or Torres Strait Islander customary law,

(p)any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."

50. It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender.

51. The section does not prioritise the catalogue of matters that may be taken into account. The weight of such of the matters specified in the section, which are taken into account, will depend upon the facts of the particular case.

52. Nor does considering each of the relevant matters prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under sub-s (1)(a), many of the matters in sub-s (2) will be largely, if not wholly, irrelevant.

53. There is no definition in the Act of "financial resources" (which term is referred to in sub-s (2)(d). However, there is a definition of that term in theProperty (Relationships) Act 1984, which I consider helpful:

""financial resources" ... includes:

(a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided,

(b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties...,

(c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and

(d) any other valuable benefit."

54. Of course, sub-s (2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income.

55. Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries named in the deceased's will, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

56. Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage.

57. Section 63(3) of the Act provides that a family provision order may not be made in relation to property of the estate that has been distributed by the legal representative of the estate in compliance with the requirements of s 93, except as provided by subsection (5). That subsection, relevantly, provides that a family provision order may be made in relation to property that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3.

58. Section 65(1) of the Act requires the family provision order to specify:

(a)the person or persons for whom provision is to be made, and

(b)the amount and nature of the provision, and

(c)the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and

(d)any conditions, restrictions or limitations imposed by the court.

59. The order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).

60. The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, her estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act).

61. Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act).

62. Section 66 of the Act sets out the consequential and ancillary orders that may be made.

63. The court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act).

64. Section 99 of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit.

65. Pursuant to paragraph 24 of Practice Note SC Eq 7, orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000.

Applicable Legal Principles

66. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were given in the context of the previous legislation, they are equally apt in a claim such as this one.

67. Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act the correction of the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education and advancement in life of an applicant.

68. In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the deceased's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19;(1962) 107 CLR 9, at 19, per Dixon CJ.

69. In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-454, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added:

"There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."

70. Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales, per Dixon CJ at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, per Gleeson CJ at [11] and [25];Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

71. In all cases under the Act, what is adequate and proper provision is necessarily fact specific.

72. The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959, per Chapman J at 966.

73. In a small estate, as this one is, it is important to remember what Salmond J said in In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218, at 221:

"Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims."

74. Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, for the deceased's intention in the Will to be displaced:Kembrey v Cuskelly [2008] NSWSC 262, per White J at [45].

75. If an applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that might be a matter to be taken into account. One might say that all of the family circumstances in which an applicant finds herself, or himself, is relevant in assessing whether she, or he, has a need for provision. But the Act does not permit orders to be made to provide for the support of third persons who the applicant, however reasonably, simply wishes to support: Re Buckland deceased [1966] VR 404, per Adam J at 412; Kleinig v Neal (No 2) (1981) 2 NSWLR 532, per Holland J in equity at 537; Dugac v Dugac [2012] NSWSC 192.

76. Finally, what was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, per Kelly J at [46] should be remembered:

"There is no onus on the ... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his will." (Omitting citations)

77. In relation to a claim by an adult child, the following principles, in my view, are useful to remember:

(a)The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b)It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.

(c)Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia.

(d)If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant. (Re Buckland Deceased, per Adam J at 411; Hughes v National Trustees, Executors and Agency Co. of Australasia Pty Ltd [1979] HCA 2; (1979) 143 CLR 134, per Gibbs J at 148; Goodman v Windeyer at 498, per Murphy J at 505). But the Act does not permit orders to be made to provide for the support of third persons whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons. (Re Buckland Deceased, per Adam J at 412; Kleinig v Neal (No2), per Holland J in equity at 537; Mayfield v Lloyd-Williams [2004] NSWSC 419).

(e)There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566; Kleinig v Neal (No 2); Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J at 45.

(f)The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, per Gibbs J at 149.

(g)Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case: Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, per Fullagar and Menzies JJ (at 135).

78. I make clear that I do not intend what I have described as "Applicable legal principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined or the discretion at the second stage to be constrained by statements of principle found in dicta in decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

Issues of Fact

79. The material that was read at the hearing consisted of affidavits in chief and two answering affidavits, from the parties, and one affidavit from Mrs Hudson. Only the parties were cross-examined.

80. Overall, there was not much in dispute between them.

81. Having observed each in the witness box, I am satisfied that she and he endeavoured to assist the court by giving evidence that was truthful to the best of her and his ability. (I have borne in mind the criticisms of the Defendant by counsel for the Plaintiff, but I do not accept the criticisms impact, in any material way, on my conclusions.)

82. The principal matter of dispute referred to Clause 4 of the deceased's Will which stated her reasons for making the Will that she made and whether the conduct of the Plaintiff was accurately reflected in that Clause or whether the deceased's stated reasons were misguided.

83. It should be remembered, that, although the statement by the deceased in her Will is admissible pursuant to s 100(2) of the Act, the court is not required to accept, unquestioningly, the truth, or accuracy, of that statement, particularly if it is denied by the Plaintiff, or where there is other evidence that casts doubt upon its accuracy. The deceased may make untrue, or inaccurate, statements, either deliberately, or unintentionally. Unfortunately, the truth or accuracy of the statements made cannot be tested by cross-examination. The deceased's statement must, like any other evidence, be subject to a degree of consideration and scrutiny.

84. That this is so is clear and s 100(9), subject to s 100(11), of the Act, which is not applicable in this case, specifically permits, where evidence of a statement of a deceased person is admitted under this section, evidence to be given for the purpose of destroying or supporting the credibility of the deceased.

85. Also, s 100(10) permits evidence to be given for the purpose of showing that the deceased's statement that has been admitted is inconsistent with another statement made at any time by the deceased person.

86. Counsel for the Defendant submitted that the reasons provided by Clause 4 of the Will should not be read literally. He accepted, for example, that it was not true that the Plaintiff had left home more than 30 years before the Will was executed in 2006. The Plaintiff's evidence, in this regard, which was not challenged in cross-examination, but which was denied in the Defendant's affidavit, was that she lived in the Petersham home with the deceased until 1992.

87. Mrs Hudson's evidence, however, was that she lived at the Petersham property until she married at the age of 18 years and 10 months, which appears to have been, in about March 1975. To that extent, part of the reason provided in Clause 4 may be accurate, so far as it relates to Mrs Hudson.

88. The deceased's statement also appears to be inaccurate if I accept the evidence of the Plaintiff and of Mrs Hudson, since each gives evidence that she remained in close communication with the deceased even after she left home and until about 2003, when the Defendant became the deceased's carer.

89. For the same reason, it is submitted that the statement is inaccurate in relation to each of the Plaintiff and Mrs Hudson showing no interest in the deceased or in her financial, physical or emotional welfare. Each says that she made an effort to see the deceased, regularly, at least until 2003, and then, any reluctance to see her, occurred as a result of the conduct of the Defendant.

90. Importantly, Mrs Hudson, who swore an affidavit that was read in the proceedings, gave evidence that the deceased had told her "over the years" that the Plaintiff had been visiting, or was coming to visit, and to "give her a bath".

91. The Defendant also gave evidence that Mrs Hudson "came once a week and dropped off some shopping", albeit that he also said "she was bringing the wrong food, my Mum was a diabetic so I took over all that. I told her numerous times not to buy certain things and she continued".

92. I also note that, in one of his affidavits, the Defendant identified, by name, a friend and two neighbours, who could verify that the Plaintiff had not visited the deceased at the Petersham property. However, none of these potential witnesses was called to give evidence, the Defendant saying that he had given the name of each person to his solicitor and assumed that she and he would be spoken to.

93. The unexplained failure to call any evidence gives rise to an inference that her and his evidence would not have assisted the Defendant's case. However, the unexplained failure cannot be used to reason that the evidence of the witness would not have been favourable to the Defendant.

94. I am prepared to accept that the statement made in Clause 4 of the deceased's Will, in part, may be, at least in part, inaccurate. However, this does not mean that I accept that the Plaintiff was as close to the deceased as she asserts. For example, the Defendant gave evidence, which I accept, that the Plaintiff did not, in the last 10 to 12 years of the deceased's life, come to visit on the deceased's birthday, Mother's day, or on any religious festivals, such as Christmas or Easter. He says, that, at least during a slightly shorter period (10 years), she visited no more than 20 times. He was not directly challenged on either aspect, although it was submitted that telephone contact occurred regularly. The Defendant accepted that the Plaintiff may have come on other occasions, at least until he asked her to return a key to the Petersham property.

95. The photographs the Plaintiff tendered support my conclusion about the relationship of the Plaintiff and the deceased. Most of them are black and white photographs and depict the three children of the deceased as children. There were no photographs, cards, or letters, which appeared to relate to say, the last 10 years of the deceased's life.

96. Of course, the Plaintiff says that her visits to the deceased were less regular after 2003, principally because of the conduct of the deceased. Even if she was justified in her view about his conduct, that does not explain the apparent failure to send any cards, or other forms of good wishes, on such occasions.

97. It was not submitted, however, by the Defendant, that the Plaintiff was completely estranged from the deceased. I accept that she was not. To the contrary, the Defendant accepted, at the outset of the cross-examination that the deceased "loved all her three children up to the date she died".

98. The Plaintiff relied upon a hospital record, tendered without objection, in which the Defendant told a social worker at the hospital to which the deceased had been admitted, in July 2010, that the deceased's Will left all her estate to him; that he intended to sell the Petersham home and buy a small flat, and divide the surplus between his sisters "not that they deserve it".

99. I accept that he made the statement before the death of the deceased. However, I cannot see how that assists the Plaintiff. He has made appropriate concessions in relation to some provision being made for the Plaintiff. His statement "not that they deserve it" is consistent with his sworn evidence.

Relevant Facts

100. I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60 of the Act.

(a)any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship

101. The Plaintiff is the daughter of the deceased. She lived at home, she says, until 1992. I do not know whether she means that she lived there on a full time basis, but it is quite possible that she did so, since she was asked questions regarding whether she had ever lived with the father of her two children, and she said she never had.

102. As stated previously, there is no suggestion that the Plaintiff was completely estranged from the deceased at any time. As stated, I am satisfied that she was not and that the deceased loved all of her children.

(b)the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

103. Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal, or financial, obligation to the Plaintiff imposed upon her by statute or common law. It is clear that the Plaintiff had been financially independent of the deceased for many years prior to her death.

104. However, an obligation, or responsibility, to make adequate provision for the proper maintenance, education and advancement in life is recognised in the case of a child of the deceased.

(c)the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

105. I have dealt with this earlier in this judgment. On any view, the value of the property that may be designated as notional estate is small.

(d)the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

106. The Plaintiff receives a disability pension. The total amount she receives is in the order of $648 per fortnight, although rent ($300), electricity charges ($20) and water rates ($20) are deducted each fortnight before receipt. She actually receives about $300 per fortnight after those charges are deducted.

107. The Plaintiff's income is supplemented by board of $150 per fortnight received from her son, and $50 per fortnight, which she receives from her daughter. However, at least part of the amount she receives from each is used to pay for his, and her, expenses.

108. She has very little by way of assets, no savings and no superannuation. I find that she has a limited earning capacity. She purchases her clothing and shoes from St Vincent de Paul. Sometimes, she receives clothing from a Church at which she attends.

109. However, she is secure in her accommodation (a townhouse) with the Department of Housing, New South Wales, from which she has rented that accommodation since December 1993.

110. She makes some complaints about the state of repair of the accommodation. She has been offered alternative accommodation on at least one other occasion, but she did not accept it because she decided the unit offered was not suitable to her children's needs. Because her children reside with her, she sleeps on a couch in the lounge room.

111. During submissions, the Plaintiff submitted that the provision she seeks is to enable her to buy some furniture and whitegoods (about $30,000), a sum for contingencies ($100,000) and a sum to provide income ($50,000). No basis for selecting those amounts for contingencies or in order to provide an income was elucidated other than by reference to the competing need of the Defendant to purchase alternative accommodation from the balance. The amount claimed to replace furniture and whitegoods was much greater than the amount identified in the Plaintiff's affidavit for that purpose (about $17,000).

112. The Plaintiff had given evidence of the "need" for a car (at a cost of about $50,000). However, in cross-examination, it was revealed that she does not have a current driver's licence and has not had one for about 18 years. She also said that a reasonable second hand car could be purchased for about $15,000. She said that she needed a car "[T]o go to doctors. I have got problems with me, go to specialists, get my CT's done, my MRI's done".

113. The Plaintiff admitted that after she first saw her solicitor, in January, she "went out and compiled a shopping list".

114. The Defendant submitted that the Plaintiff should receive an amount of $20,000 to enable her to purchase furniture and whitegoods and about $25,000 for exigencies.

115. The Defendant is a qualified spray painter but does not work. He, too, receives a disability support pension ($680 per fortnight). He has virtually no savings, no property and no superannuation. He owes debts, including a deferred fee to the court, totalling $4,308. His expenses equal his income. He has a 16 year old son with whom he has some contact.

116. The Defendant says that he finds it impossible to obtain employment because of his age, his criminal history and his poor health. I find that he has a limited earning capacity.

117. If the Petersham property is sold, as it must be, he has a need for alternative accommodation. There is some evidence that the cost of such alternative accommodation, if purchased, together with associated costs, would be in the order of $384,000. There is other evidence that such accommodation could be purchased for a lesser amount. The Defendant also asserts a competing need for a capital sum to pay off his debts and to provide for exigencies of life.

118. The Defendant admits that he has not looked at alternative accommodation that he might purchase. However, this is not surprising because he does not know the nature of the provision that is to be made for the Plaintiff and how much he will have available after satisfying any order, or whether it will be sufficient to enable him to purchase alternative accommodation of the type that he requires.

119. The Plaintiff submits that he could purchase "secure and habitable accommodation for a sum in the vicinity of $250,000".

120. The Defendant's evidence is that if he was required to rent accommodation, the rent for a one-bedroom home unit, in the Petersham area, will be between $250 and $300 per week.

121. It is clear that the financial position of each party could genuinely be described as very poor.

(e)if the applicant is cohabiting with another person - the financial circumstances of the other person

122. The Plaintiff lives with her two children. I do not know the financial circumstances of her son (who is 19 years of age), although the evidence reveals that he is an apprentice chef. Her daughter (who is 16 years of age) is in Year 11 of high school, studying at TAFE, and is in receipt of a Youth Allowance of $212 per fortnight.

123. The Plaintiff spends part of the money she receives from each of her children on his, and her, needs. For example, she purchases their food and also pays for weekly travel pass for her daughter.

124. In the Plaintiff's written submissions, it is accepted that her children are generally healthy and will probably be independent from her in the future. However, at the date of the hearing, each is, at least partly, financially dependent upon the Plaintiff.

(f)any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

125. The Plaintiff does not give very much evidence about these matters. She states, however, that she has a history of drug use and currently spends about $70 per for fortnight on methadone (currently 90 mg per day). She states that she is "otherwise generally in good health".

126. However, a report dated May 2011, of her treating doctor, reveals that she has a significant history of depression, drug addiction, suppressed by Methadone therapy, and also a history of Panic Disorder. As I have said, she receives a disability pension.

127. The Defendant suffers from Advanced Hepatitis C, anxiety and depression, and a heart condition. He has pain in his hands from hand fractures. He, too, receives a disability pension.

(g)the age of the applicant when the application is being considered

128. The Plaintiff is currently 53 years of age having been born in October 1958.

(h)any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

129. The Plaintiff says that she contributed by providing labour for the repair and maintenance of the Petersham property. Although this is disputed, her contribution is described in her submissions as "at a minor level". I agree that this is an apt description.

130. The Defendant was, at least between 2003 and the deceased's death, her sole carer. No doubt, he provided her with care during these years.

(i)any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

131. I have referred to the lack of provision made for the Plaintiff from the deceased's estate. However, as she lived in the Petersham property until about 1992, the deceased provided accommodation to her until that time.

(j)any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

132. The Plaintiff gives evidence of having a number of conversations with the deceased in which she was informed that the deceased's estate would be divided equally between the three children. These conversations are corroborated by a will, made by the deceased in April 1998, in which the whole of the estate is left to "such of my children who survive me by more than thirty (30) days in equal shares as tenants-in-common absolutely".

(k)whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

133. There is no suggestion that the Plaintiff was being maintained, either wholly or partly, by the deceased, before the deceased's death. As stated, the Plaintiff appears to have been financially independent of the deceased for many years before the deceased's death.

(l)whether any other person is liable to support the applicant

134. There is no person with any liability to support the Plaintiff.

(m)the character and conduct of the applicant before and after the date of the death of the deceased person

135. The Act does not limit the consideration of "conduct" to conduct towards the deceased.

136. A matter upon which there was a substantial dispute between the parties related to the relationship of the Plaintiff and the deceased between 2003 and the date of death, to which I have referred earlier.

137. I also remember that there is no evidence that there was any conduct by the Plaintiff towards the deceased, of the type that used to be called "conduct disentitling". To his credit, the Defendant did not suggest such conduct.

(n)the conduct of any other person before, and after, the date of the death of the deceased person

138. I am satisfied that the conduct of the Defendant demonstrated, overall, a close and loving relationship with the deceased. (There may have been some disagreements between the Defendant and the deceased, but any are irrelevant to the determination of the Plaintiff's claim.)

139. I do not forget that he was the deceased's sole carer between 2003 and her death. His care involved ensuring that she took her medications, attended at doctor's appointments, cleaning and cooking for her, arranging maintenance of her oxygen machine, checking her blood sugar levels four times a day and also attending to change her as she was incontinent and mostly bed-ridden for the last three years of her life. It was due to his efforts that the deceased was not required to be placed in a nursing home.

140. I have also not forgotten that the Defendant has been incarcerated for a number of years, at different times for different offences. However, the deceased visited him in jail and wrote to him. She does not appear to have been upset or embarrassed by his conduct.

(o)any relevant Aboriginal or Torres Strait Islander customary law

141. This is not relevant in the present case.

(p)any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered

142. The only other matter that I consider relevant is that the Defendant and the deceased conducted a joint bank account. This account was opened in January 2004, by the transfer of about $9,400 from the deceased's account. The Defendant does not disclose the amount in this account at the date of death.

143. There was no suggestion that the Defendant made any significant contributions to the joint account.

Determination

Eligibility

144. There is no dispute that the Plaintiff is an eligible person within the meaning of that term in s 57 (1) (c) of the Act.

The Jurisdiction Stage

145. As the Plaintiff's proceedings were commenced within the time prescribed by the Act, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education, or advancement in life of the person in whose favour the order is to be made, has not been made, by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both.

146. There was no provision in the deceased's Will made for the Plaintiff. This does not, automatically, mean that she will have satisfied the jurisdictional threshold. Judged by quantum and looked at through the prism of her financial and material circumstances, it might be said that adequate provision for her proper maintenance or advancement in life was not made by the Will of the deceased, or by the operation of the intestacy rules, in relation to the estate of the deceased, or both.

147. Whilst an additional lump sum, by way of advancement in life, in other circumstances, would be appropriate, that is not all that I am required to consider at the first stage. The totality of the relationship of the Plaintiff and the deceased, the age and capacities of the other beneficiaries, and the claim of each on the bounty of the deceased, the size of the estate and the Plaintiff's "needs", are very relevant factors in determining the answer at the first stage.

148. During submissions, the Defendant's counsel accepted that the Plaintiff had satisfied the jurisdictional threshold. This concession was properly made.

Exercise of Discretion

149. Then, I turn to the second stage of the two stage process, and consider whether an order should be made, and if so, the nature of the order to be made.

150. Claims for a family provision order present particular difficulties where the estate is relatively small. Any provision made by the Court in favour of the applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims.

151. As a matter of discretion, I am satisfied that an order for provision by way of a capital sum should be made for the Plaintiff. (There was really no dispute that I should exercise my discretion to make an order for provision.) However, I find myself quite unable to accept the submissions made on the quantum of the provision to be ordered. In other words, I am not satisfied that she should receive as much as sought by her in submissions, or as little as was submitted by the Defendant, she should receive.

152. I do not accept that the Plaintiff requires an amount to enable her to purchase alternative accommodation. Apart from the fact that the size of the deceased's estate will not enable provision to be made for that purpose (it being accepted that she has no borrowing capacity and that the Defendant has a greater competing claim upon the bounty of the deceased), I am satisfied that she is secure in the accommodation in which she presently lives.

153. Taking into account her "needs", in my opinion, the capital sum the Plaintiff should receive is $90,000. Allowing, say, $20,000 for the purchase of furniture and whitegoods, she will retain $70,000 by way of capital sum to provide capital and, until spent, some income. Invested at say 5% per annum, that will provide about $3,500 per annum or about $67 per week.

154. The provision of that lump sum for the Plaintiff, will leave approximately $390,000 for the Defendant. That will enable him to purchase accommodation (perhaps, for about $300,000 including associated costs), as well as providing him with a capital sum (coincidentally equating to the capital sum provided for the Plaintiff) for exigencies of life and to provide, until spent, an income. Alternatively, if the whole amount is invested by him, at say, 5% per annum, the income ($19,500) should be sufficient to enable him to rent accommodation (between $13,000 and $16,000 per annum), whilst retaining the capital.

Costs of the Proceedings

155. I have been requested to allow the parties to agree upon costs.

The Nature of the Orders

156. In view of the request of the legal representatives of the parties, I shall stand the proceedings over to enable the preparation of short minutes which should include:

(a)my finding that the Plaintiff is an eligible person;

(b)my determination that service of the notice upon the deceased's husband is unnecessary and impracticable;

(c)that the provision made for the Plaintiff in the Will of the deceased is inadequate for her proper maintenance and advancement in life and that she should receive, a capital sum of $90,000.

(d)that a provision for interest on that capital sum, unless it is paid within 14 days after completion of the sale of the Petersham property, or such other time as the parties agree;

(e)the burden of the costs of the parties should be agreed upon;

(f)that the deceased's estate is insufficient for the making of the family provision order in the case of the Plaintiff, and for any order as to costs, that the Court is of the opinion should be made, the court will make a designating order designating property as notional estate for the purposes of the family provision orders to be made and, if necessary, for the purposes of an order for the Plaintiffs' costs of proceedings (as agreed or as determined);

(g)that the Petersham property be sold and the methodology of sale so as to avoid undue delay in the sale;

(h)that the Court Book, the exhibits and subpoenaed material be returned forthwith; any exhibits returned to be retained intact by the party, or person who produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

157. The parties are to bring in short minutes that reflect these reasons and at least the matters stated above. If agreement is not reached on the terms of the orders, I shall hear further submissions. The matter will be adjourned to a date suitable to the parties and the Court no later than 14 days from the date hereof.

**********

SUPREME COURT OF THE UNITED STATES Before passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), United States immigration law provided deportation hearings for excludable aliens who had already entered the United States and exclusion hearings for excludable aliens seeking entry into the United States. Lawful permanent residents were not regarded as making an “entry,” upon their return from “innocent, casual, and brief excursion[s] . . . outside this country’s borders.” Rosenberg v. Fleuti, 374 U. S. 449, 462. In IIRIRA, Congress abolished the distinction between exclusion and deportation procedures, creating a uniform “removal” proceeding. See 8 U. S. C. §§1229, 1229a. Congress made “admission” the key word, and defined “admission” to mean “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” §1101(a)(13)(A). This alteration, the Board of Immigration Appeals (BIA) determined, superseded Fleuti. Thus, lawful permanent residents returning from a trip abroad are now regarded as seeking admission if they have “committed an offense identified in section 1182(a)(2),” §1101(a)(13)(C)(v), including, as relevant here, “a crime involving moral turpitude . . . or conspiracy to commit such a crime,” §1182(a)(2)(A)(i). Petitioner Vartelas, a lawful permanent resident of the United States since 1989, pleaded guilty to a felony (conspiring to make a counterfeit security) in 1994, and served a 4-month prison sentence. In the years after his conviction, and even after IIRIRA’s passage, Vartelas regularly traveled to Greece to visit his aging parents. In 2003, when Vartelas returned from a week-long trip to Greece, an immigration officer classified him as an alien seeking “admission” based on his 1994 conviction. At Vartelas’ removal proceedings, his 2 VARTELAS v. HOLDER Syllabus attorneys conceded removability and requested discretionary relief under former §212(c) of the Immigration and Nationality Act. The Immigration Judge denied the request for relief, and ordered Vartelas removed to Greece. The BIA affirmed. In 2008, Vartelas filed with the BIA a timely motion to reopen the removal proceedings, alleging that his previous attorneys were ineffective for, among other lapses, conceding his removability. He sought to withdraw the concession of removability on the ground that IIRIRA’s new “admission” provision did not reach back to deprive him of lawful resident status based on his pre-IIRIRA conviction. The BIA denied the motion. The Second Circuit affirmed. Rejecting Vartelas’ argument that IIRIRA operated prospectively and therefore did not govern his case, the Second Circuit reasoned that he had not relied on the prior legal regime at the time he committed the disqualifying crime. Held: The impact of Vartelas’ brief travel abroad on his permanent resident status is determined not by IIRIRA, but by the legal regime in force at the time of his conviction. Pp. 7–17. (a) Under the principle against retroactive legislation invoked by Vartelas, courts read laws as prospective in application unless Congress has unambiguously instructed retroactivity. See Landgraf v. USI Film Products, 511 U. S. 244, 263. The presumption against retroactive legislation “embodies a legal doctrine centuries older than our Republic.” Id., at 265. Numerous decisions of this Court have invoked Justice Story’s formulation for determining when a law’s retrospective application would collide with the doctrine, namely, as relevant here, when such application would “attac[h] a new disability, in respect to transactions or considerations already past,” Society for Propagation of Gospel v. Wheeler, 22 F. Cas. 756, 767. See, e.g., INS v. St. Cyr, 533 U. S. 289, 321; Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 947; Landgraf, 511 U. S., at 283. Vartelas urges that applying IIRIRA to him would attach a “new disability,” effectively a ban on travel outside the United States, “in respect to” past events, specifically, his offense, guilty plea, conviction, and punishment, all occurring prior to IIRIRA’s passage. Congress did not expressly prescribe §1101(a)(13)’s temporal reach. The Court, therefore, proceeds to the dispositive question whether application of IIRIRA’s travel restraint to Vartelas “would have retroactive effect” Congress did not authorize. See id., at 280. Vartelas presents a firm case for application of the antiretroactivity principle. Beyond genuine doubt §1101(a)(13)(C)(v)’s restraint on lawful permanent residents like Vartelas ranks as a “new disability.” Once able to journey abroad to, e.g., fulfill religious obligations or respond to family emergencies, they now face potential banishment, a severe sanction. See, e.g., Padilla v. Kentucky, 559 U. S. ___, ___. The Gov- Cite as: 566 U. S. ____ (2012) 3 Syllabus ernment suggests that Vartelas could have avoided any adverse consequences if he simply stayed at home in the United States. But losing the ability to travel abroad is itself a harsh penalty, made all the more devastating if it means enduring separation from close family members. This Court has rejected arguments for retroactivity in similar cases, see Chew Heong v. United States, 112 U. S. 536, 559; St. Cyr, 533 U. S., at 321–323, and in cases in which the loss at stake was less momentous, see Landgraf, 511 U. S., at 280–286; Hughes Aircraft, 520 U. S., at 946–950. Pp. 7–11. (b) The Court finds disingenuous the Government’s argument that no retroactive effect is involved in this case because the relevant event is the alien’s post-IIRIRA return to the United States. Vartelas’ return occasioned his treatment as a new entrant, but the reason for his “new disability” was his pre-IIRIRA conviction. That past misconduct is the wrongful activity targeted by §1101(a)(13)(C)(v). Pp. 11–13. (c) In determining that the change IIRIRA wrought had no retroactive effect, the Second Circuit homed in on the words “committed an offense” in §1101(a)(13)(C)(v). It reasoned that reliance on the prior law is essential to application of the antiretroactivity principle, and that Vartelas did not commit his crime in reliance on immigration laws. This reasoning is doubly flawed. A party is not required to show reliance on the prior law in structuring his conduct. See, e.g., Landgraf, 511 U. S., at 282, n. 35. In any event, Vartelas likely relied on then-existing immigration law, and this likelihood strengthens the case for reading a newly enacted law prospectively. St. Cyr is illustrative. There, a lawful permanent resident pleaded guilty to a criminal charge that made him deportable. Under the immigration law in effect when he was convicted, he would have been eligible to apply for a waiver of deportation. But his removal proceeding was commenced after IIRIRA withdrew that dispensation. Disallowance of discretionary waivers attached a new disability to past conduct, 533 U. S., at 321. Aliens like St. Cyr “almost certainly relied upon th[e] likelihood [of receiving discretionary relief] in deciding [to plead guilty, thereby] forgo[ing] their right to a trial,” id., at 325. Because applying the IIRIRA withdrawal to St. Cyr would have an “obvious and severe retroactive effect,” ibid., and Congress made no such intention plain, ibid., n. 55, the prior law governed St. Cyr’s case. Vartelas’ case is at least as clear as St. Cyr’s for declining to apply a new law retroactively. St. Cyr could seek only the Attorney General’s discretionary dispensation, while Vartelas, under Fleuti, was free, without seeking an official’s permission, to make short trips to see and assist his parents in Greece. The Second Circuit compounded its initial 4 VARTELAS v. HOLDER Syllabus misperception of the antiretroactivity principle by holding otherwise. Fleuti continues to govern Vartelas’ short-term travel. Pp. 14–17. 620 F. 3d 108, reversed and remanded. GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined.

 
 
 
(Slip Opinion)  OCTOBER TERM, 2011  1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
VARTELAS v. HOLDER, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 10–1211. Argued January 18, 2012—Decided March 28, 2012
Before passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), United States immigration law
provided deportation hearings for excludable aliens who had already
entered the United States and exclusion hearings for excludable aliens seeking entry into the United States.  Lawful permanent residents were not regarded as making an “entry,” upon their return
from “innocent, casual, and brief excursion[s] . . . outside this country’s borders.”  Rosenberg v. Fleuti, 374 U. S. 449, 462.  In IIRIRA,
Congress abolished the distinction between exclusion and deportation
procedures, creating a uniform “removal” proceeding.  See 8 U. S. C.
§§1229, 1229a.  Congress made “admission” the key word, and defined “admission” to mean “the lawful entry of the alien into the
United States after inspection and authorization by an immigration
officer.”  §1101(a)(13)(A).  This alteration, the Board of Immigration
Appeals (BIA) determined, superseded Fleuti.  Thus, lawful permanent residents returning from a trip abroad are now regarded as
seeking admission if they have “committed an offense identified in
section 1182(a)(2),” §1101(a)(13)(C)(v), including, as relevant here, “a
crime involving moral turpitude . . . or conspiracy to commit such a
crime,”  §1182(a)(2)(A)(i).
  Petitioner Vartelas, a lawful  permanent resident of the United
States since 1989, pleaded guilty to a felony (conspiring to make a
counterfeit security) in 1994, and served a 4-month prison sentence.
In the years after his conviction,  and even after IIRIRA’s passage,
Vartelas regularly traveled to Greece to visit his aging parents. In
2003, when Vartelas returned from a week-long trip to Greece, an
immigration officer classified him as an alien seeking “admission”
based on his 1994 conviction.  At Vartelas’ removal proceedings, his  
 
 
2  VARTELAS v. HOLDER
Syllabus
attorneys conceded removability and requested discretionary relief
under former §212(c) of the Immigration and Nationality Act.  The
Immigration Judge denied the request for relief, and ordered Vartelas removed to Greece. The BIA affirmed.  In 2008, Vartelas filed
with the BIA a timely motion to reopen the removal proceedings, alleging that his previous attorneys were ineffective for, among other
lapses, conceding his removability.  He sought to withdraw the concession of removability on the ground that IIRIRA’s new “admission”
provision did not reach back to deprive him of lawful resident status
based on his pre-IIRIRA conviction.  The BIA denied the motion.  The
Second Circuit affirmed.  Rejecting Vartelas’ argument that IIRIRA
operated prospectively and therefore did not govern his case, the Second Circuit reasoned that he had not relied on the prior legal regime
at the time he committed the disqualifying crime.
Held: The impact of Vartelas’ brief travel abroad on his permanent resident status is determined not by IIRIRA, but by the legal regime in
force at the time of his conviction.  Pp. 7–17.
(a) Under the principle against retroactive legislation invoked by
Vartelas, courts read laws as prospective in application unless Congress has unambiguously instructed retroactivity.  See  Landgraf v.
USI Film Products, 511 U. S. 244, 263.  The presumption against retroactive legislation “embodies a legal doctrine centuries older than
our Republic.”  Id., at 265.  Numerous decisions of this Court have
invoked Justice Story’s formulation for determining when a law’s retrospective application would collide with the doctrine, namely, as relevant here, when such application would “attac[h] a new disability, in
respect to transactions or considerations already past,”  Society for
Propagation of Gospel v. Wheeler, 22 F. Cas. 756, 767.  See, e.g., INS
v. St. Cyr, 533 U. S. 289, 321; Hughes Aircraft Co. v. United States ex
rel. Schumer, 520 U. S. 939, 947; Landgraf, 511 U. S., at 283.  Vartelas urges that applying IIRIRA to him would attach a “new disability,” effectively a ban on travel outside the United States, “in respect
to” past events, specifically, his offense, guilty plea, conviction, and
punishment, all occurring prior to IIRIRA’s passage.
Congress did not expressly prescribe §1101(a)(13)’s temporal reach.
The Court, therefore, proceeds to the dispositive question whether
application of IIRIRA’s travel restraint to Vartelas “would have retroactive effect” Congress did not authorize.  See id., at 280.  Vartelas
presents a firm case for application of the antiretroactivity principle.
Beyond genuine doubt §1101(a)(13)(C)(v)’s restraint on lawful permanent residents like Vartelas ranks as a “new disability.”  Once
able to journey abroad to, e.g., fulfill religious obligations or respond
to family emergencies, they now face potential banishment, a severe
sanction. See, e.g., Padilla v. Kentucky, 559 U. S. ___, ___.  The Gov-
 
Cite as: 566 U. S. ____ (2012)  3
Syllabus
ernment suggests that Vartelas could have avoided any adverse consequences if he simply stayed at home in the United States.  But losing the ability to travel abroad is itself a harsh penalty, made all the
more devastating if it means enduring separation from close family
members.
This Court has rejected arguments for retroactivity in similar
cases, see Chew Heong v. United States, 112 U. S. 536, 559; St. Cyr,
533 U. S., at 321–323, and in cases in which the loss at stake was less
momentous, see  Landgraf, 511 U. S., at 280–286;  Hughes Aircraft,
520 U. S., at 946–950.  Pp. 7–11.
(b) The Court finds disingenuous the Government’s argument that
no retroactive effect is involved  in this case because the relevant
event is the alien’s post-IIRIRA return to the United States.  Vartelas’ return occasioned his treatment as a new entrant, but the reason for his “new disability” was his pre-IIRIRA conviction.  That past
misconduct is the wrongful activity targeted by §1101(a)(13)(C)(v).
Pp. 11–13.
(c) In determining that the change IIRIRA wrought had no retroactive effect, the Second Circuit homed in on the words “committed an
offense” in §1101(a)(13)(C)(v).  It reasoned that reliance on the prior
law is essential to application of the antiretroactivity principle, and
that Vartelas did not commit his crime in reliance on immigration
laws. This reasoning is doubly flawed.  A party is not required to
show reliance on the prior law in structuring his conduct.  See, e.g.,
Landgraf, 511 U. S., at 282, n. 35.   In any event, Vartelas likely relied on then-existing immigration law, and this likelihood strengthens the case for reading a newly enacted law prospectively.  St. Cyr is
illustrative.  There, a lawful permanent resident pleaded guilty to a
criminal charge that made him deportable.  Under the immigration
law in effect when he was convicted, he would have been eligible to
apply for a waiver of deportation.  But his removal proceeding was
commenced after IIRIRA withdrew that dispensation.  Disallowance
of discretionary waivers attached  a new disability to past conduct,
533 U. S., at 321.  Aliens like St. Cyr “almost certainly relied upon
th[e] likelihood [of receiving discretionary relief] in deciding [to plead
guilty, thereby] forgo[ing] their right to a trial,” id., at 325.  Because
applying the IIRIRA withdrawal to St. Cyr would have an “obvious
and severe retroactive effect,” ibid., and Congress made no such intention plain, ibid., n. 55, the prior law governed St. Cyr’s case.  Vartelas’ case is at least as clear as St. Cyr’s for declining to apply a new
law retroactively.  St. Cyr could seek only the Attorney General’s discretionary dispensation, while Vartelas, under Fleuti, was free, without seeking an official’s permission, to make short trips to see and assist his parents in Greece.  The Second Circuit compounded its initial  
4  VARTELAS v. HOLDER
Syllabus
misperception of the antiretroactivity principle by holding otherwise.
Fleuti continues to govern Vartelas’ short-term travel.  Pp. 14–17.
620 F. 3d 108, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J.,  and KENNEDY, BREYER, SOTOMAYOR,  and KAGAN,  JJ., joined.
SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ.,
joined.  
 
_________________
_________________
 
Cite as: 566 U. S. ____ (2012)  1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 10–1211
PANAGIS VARTELAS, PETITIONER v. ERIC H.
HOLDER, JR., ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

[March 28, 2012]
 JUSTICE GINSBURG delivered the opinion of the Court.
Panagis Vartelas, a native of Greece, became a lawful
permanent resident of the United States in 1989. He
pleaded guilty to a felony (conspiring to make a counterfeit
security) in 1994, and served a prison sentence of four
months for that offense.  Vartelas traveled to Greece in
2003 to visit his parents. On his return to the United
States a week later, he was treated as an inadmissible
alien and placed in removal proceedings.  Under the law
governing at the time of Vartelas’ plea, an alien in his
situation could travel abroad for brief periods without
jeopardizing his resident alien status.  See 8 U. S. C.
§1101(a)(13) (1988 ed.), as construed in  Rosenberg v.
Fleuti, 374 U. S. 449 (1963).
In 1996, Congress enacted the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA), 110
Stat. 3009–546.  That Act effectively precluded foreign
travel by lawful permanent residents who had a conviction
like Vartelas’. Under IIRIRA, such aliens, on return from
a sojourn abroad, however brief, may be permanently
removed from the United States. See 8 U. S. C.  
2  VARTELAS v. HOLDER
Opinion of the Court
§1101(a)(13)(C)(v); §1182(a)(2).
This case presents a question of retroactivity not addressed by Congress: As to a lawful permanent resident
convicted of a crime before the effective date of IIRIRA,
which regime governs, the one in force at the time of
the conviction, or IIRIRA?  If the former, Vartelas’ brief
trip abroad would not disturb his lawful permanent resident status. If the latter, he may be denied reentry.  We
conclude that the relevant provision of IIRIRA,
§1101(a)(13)(C)(v), attached a new disability (denial of
reentry) in respect to past events (Vartelas’ pre-IIRIRA
offense, plea, and conviction).  Guided by the deeply rooted
presumption against retroactive legislation, we hold that
§1101(a)(13)(C)(v) does not apply to Vartelas’ conviction.
The impact of Vartelas’ brief travel abroad on his permanent resident status is therefore determined not by
IIRIRA, but by the legal regime in force at the time of his
conviction.
I
A
Before IIRIRA’s passage, United States immigration law
established “two types of proceedings in which aliens can
be denied the hospitality of the United States: deportation
hearings and exclusion hearings.”  Landon  v.  Plasencia,
459 U. S. 21, 25 (1982).  Exclusion hearings were held for
certain aliens seeking entry to the United States, and
deportation hearings were held for certain aliens who had
already entered this country. See ibid.
Under this regime, “entry” into the United States was
defined as “any coming of an alien into the United States,
from a foreign port or place.” 8 U. S. C. §1101(a)(13) (1988
ed.). The statute, however, provided an exception for
lawful permanent residents; aliens lawfully residing here
were not regarded as making an “entry” if their “departure
to a foreign port or place . . . was not intended or reasona-
Cite as: 566 U. S. ____ (2012)  3
Opinion of the Court
bly to be expected by [them] or [their] presence in a foreign
port or place . . . was not voluntary.”   Ibid.  Interpreting
this cryptic provision, we held in Fleuti, 374 U. S., at 461–
462, that Congress did not intend to exclude aliens long
resident in the United States upon their return from
“innocent, casual, and brief excursion[s] . . . outside this
country’s borders.”  Instead, the Court determined, Congress meant to rank a once-permanent resident as a new
entrant only when the foreign excursion “meaningfully
interrupt[ed] . . . the alien’s [U. S.] residence.”  Id., at 462.
Absent such “disrupti[on]” of the alien’s residency, the
alien would not be “subject . . . to the consequences of an
‘entry’ into the country on his return.”  Ibid.1
In IIRIRA, Congress abolished the distinction between
exclusion and deportation procedures and created a uniform proceeding known as “removal.”  See 8 U. S. C.
§§1229, 1229a;  Judulang  v.  Holder, 565 U. S. ___, ___
(2011) (slip op., at 1–2).  Congress made “admission” the
key word, and defined admission to mean “the lawful
entry of the alien into the United States after inspec-
tion and authorization by an immigration officer.”
§1101(a)(13)(A). This alteration, the Board of Immigration
Appeals (BIA) determined, superseded  Fleuti. See  In re
Collado-Munoz, 21 I. & N. Dec. 1061, 1065–1066 (1998)
(en banc).2
 Thus, lawful permanent residents returning
——————
1
The dissent appears driven, in no small measure, by its dim view of
the Court’s opinion in Fleuti. See post, at 6 (“same instinct” operative
in Fleuti and this case).
2
The BIA determined that the  Fleuti doctrine no longer held sway
because it was rooted in the “no longer existent definition of ‘entry’ in
[the INA].”  21 I. & N. Dec., at 1065.  The Board also noted that “Congress . . . amended the law to expressly preserve some, but not all, of
the Fleuti doctrine” when it provided that a lawful permanent resident
absent from the United States for less than 180 days would not be
regarded as seeking an admission except in certain enumerated circumstances, among them, prior commission of a crime of moral turpitude. See ibid. (citing 8 U. S. C. §1101(a)(13)(C)(ii)).  
4  VARTELAS v. HOLDER
Opinion of the Court
post-IIRIRA, like Vartelas, may be required to “‘see[k] an
admission’ into the United States, without regard to
whether the alien’s departure from the United States
might previously have been ranked as ‘brief, casual, and
innocent’ under the Fleuti doctrine.”  Id., at 1066.
An alien seeking “admission” to the United States is
subject to various requirements, see,  e.g., §1181(a), and
cannot gain entry if she is deemed “inadmissible” on any of
the numerous grounds set out in the immigration statutes, see §1182.  Under IIRIRA, lawful permanent residents
are regarded as seeking admission into the United States
if they fall into any of six enumerated categories.
§1101(a)(13)(C). Relevant here, the fifth of these categories covers aliens who “ha[ve] committed an offense identified in section 1182(a)(2) of this title.”  §1101(a)(13)(C)(v).
Offenses in this category include “a crime involving moral
turpitude (other than a purely political offense) or an
attempt or conspiracy to commit such a crime.”
§1182(a)(2)(A)(i).
In sum, before IIRIRA, lawful permanent residents who
had committed a crime of moral turpitude could, under
the  Fleuti doctrine, return from brief trips abroad without applying for admission to the United States.  Under
IIRIRA, such residents are subject to admission procedures, and, potentially, to removal from the United States
on grounds of inadmissibility.3
——————
Vartelas does not challenge the ruling in Collado-Munoz. We therefore assume, but do not decide, that IIRIRA’s amendments to
§1101(a)(13)(A) abrogated Fleuti.
3
Although IIRIRA created a uniform removal procedure for both
excludable and deportable aliens, the list of criminal offenses that
subject aliens to exclusion remains separate from the list of offenses
that render an alien deportable.  These lists are “sometimes overlapping and sometimes divergent.”  Judulang v. Holder, 565 U. S. ___, ___
(2011) (slip op., at 2).  Pertinent here, although a single crime involving
moral turpitude may render an alien inadmissible, it would not render
her deportable.  See 8 U. S. C. §1182(a)(2) (listing excludable crimes);  
Cite as: 566 U. S. ____ (2012)  5
Opinion of the Court
B
Panagis Vartelas, born and raised in Greece, has resided
in the United States for over 30 years.  Originally admitted on a student visa issued in 1979, Vartelas became a
lawful permanent resident in 1989. He currently lives in
the New York area and works as a sales manager for a
roofing company.
In 1992, Vartelas opened an auto body shop in Queens,
New York.  One of his business partners used the shop’s
photocopier to make counterfeit travelers’ checks.  Vartelas helped his partner perforate the sheets into individual checks, but Vartelas did not sell the checks or receive
any money from the venture.  In 1994, he pleaded guilty to
conspiracy to make or possess counterfeit securities, in
violation of 18 U. S. C. §371.  He was sentenced to four
months’ incarceration, followed  by two years’ supervised
release.
Vartelas regularly traveled to Greece to visit his aging
parents in the years after his 1994 conviction; even after
the passage of IIRIRA in 1996, his return to the United
States from these visits remained uneventful.  In January
2003, however, when Vartelas returned from a week-long
trip to Greece, an immigration officer classified him as an
alien seeking “admission.” The officer based this classification on Vartelas’ 1994 conviction.  See  United States
ex rel. Volpe v. Smith, 289 U. S. 422, 423 (1933) (counterfeiting ranks as a crime of moral turpitude).
At Vartelas’ removal proceedings, his initial attorney
conceded removability, and requested discretionary relief
from removal under the former §212(c) of the Immigration
and Nationality Act (INA). See 8 U. S. C. §1182(c) (1994
ed.) (repealed 1996). This attorney twice failed to appear
for hearings and once failed to submit a requested brief.
Vartelas engaged a new attorney, who continued to con-
——————
§1227(a)(2) (listing deportable crimes).  
6  VARTELAS v. HOLDER
Opinion of the Court
cede removability and to request discretionary relief.  The
Immigration Judge denied the request for relief, and
ordered Vartelas removed to  Greece.  The BIA affirmed
the Immigration Judge’s decision.
In July 2008, Vartelas filed with the BIA a timely motion to reopen the removal proceedings, alleging that his
previous attorneys were ineffective for, among other
lapses, conceding his removability.  He sought to withdraw
the concession of removability on the ground that IIRIRA’s
new “admission” provision, codified at §1101(a)(13), did
not reach back to deprive him of lawful resident status
based on his pre-IIRIRA conviction.  The BIA denied the
motion, declaring that Vartelas had not been prejudiced by
his lawyers’ performance, for no legal authority prevented
the application of IIRIRA to Vartelas’ pre-IIRIRA conduct.
The U. S. Court of Appeals for the Second Circuit affirmed the BIA’s decision, agreeing that Vartelas had
failed to show he was prejudiced by his attorneys’ allegedly ineffective performance.  Rejecting Vartelas’ argument
that IIRIRA operated prospectively and therefore did not
govern his case, the Second Circuit reasoned that he had
not relied on the prior legal regime at the time he committed the disqualifying crime. See 620 F. 3d 108, 118–120
(2010).
In so ruling, the Second Circuit created a split with two
other Circuits. The Fourth and Ninth Circuits have held
that the new §1101(a)(13) may not be applied to lawful
permanent residents who committed crimes listed in
§1182 (among them, crimes of moral turpitude) prior to
IIRIRA’s enactment.  See Olatunji v.  Ashcroft, 387 F. 3d
383 (CA4 2004); Camins v. Gonzales, 500 F. 3d 872 (CA9
2007). We granted certiorari, 564 U. S. ___ (2011), to
resolve the conflict among the Circuits.
II
As earlier explained, see  supra, at 2–4, pre-IIRIRA, a  
Cite as: 566 U. S. ____ (2012)  7
Opinion of the Court
resident alien who once committed a crime of moral turpitude could travel abroad for short durations without jeopardizing his status as a lawful permanent resident.  Under
IIRIRA, on return from foreign travel, such an alien is
treated as a new arrival to our shores, and may be removed from the United States.  Vartelas does not question
Congress’ authority to restrict reentry in this manner.
Nor does he contend that Congress could not do so retroactively. Instead, he invokes the principle against retro-
active legislation, under which courts read laws as prospective in application unless Congress has unambiguously
instructed retroactivity.  See Landgraf v. USI Film Products, 511 U. S. 244, 263 (1994).
The presumption against retroactive legislation, the
Court recalled in  Landgraf, “embodies a legal doctrine
centuries older than our Republic.”  Id., at 265.  Several
provisions of the Constitution, the Court noted, embrace
the doctrine, among them, the  Ex Post Facto Clause, the
Contract Clause, and the Fifth Amendment’s Due Process
Clause.  Id., at 266. Numerous decisions of this Court
repeat the classic formulation Justice Story penned for
determining when retrospective application of a law would
collide with the doctrine.  It would do so, Story stated,
when such application would “tak[e] away or impai[r]
vested rights acquired under existing laws, or creat[e] a
new obligation, impos[e] a new duty, or attac[h] a new
disability, in respect to transactions or considerations
already past.”   Society for Propagation of Gospel v.
Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CC NH 1814).
See, e.g., INS v. St. Cyr, 533 U. S. 289, 321 (2001) (invoking Story’s formulation);  Hughes Aircraft Co. v.  United
States ex rel. Schumer, 520 U. S. 939, 947 (1997);  Landgraf, 511 U. S., at 283.4
——————
4
The dissent asserts that Justice Story’s opinion “bear[s] no relation
to the presumption against retroactivity.”  Post, at 6. That is a bold  
 
8  VARTELAS v. HOLDER
Opinion of the Court
Vartelas urges that applying IIRIRA to him, rather than
the law that existed at the time of his conviction, would
attach a “new disability,” effectively a ban on travel outside the United States, “in respect to [events] . . . already
past,” i.e., his offense, guilty plea, conviction, and punishment, all occurring prior to the passage of IIRIRA.  In
evaluating Vartelas’ argument, we note first a matter not
disputed by the Government: Congress did not expressly
prescribe the temporal reach of the IIRIRA provision in
question, 8 U. S. C. §1101(a)(13).  See Landgraf, 511 U. S.,
at 280 (Court asks first “whether Congress has expressly
prescribed [new §1101(a)(13)’s] proper reach”); Brief for
Respondent 11 (Court’s holding in  INS v.  St. Cyr, 533
U. S., at 317–320, “compels the conclusion that Congress
has not ‘expressly prescribed the statute’s proper reach’ ”
(quoting  Landgraf, 511 U. S., at 280)).5
  Several other
provisions of IIRIRA, in contrast to §1101(a)(13), expressly
direct retroactive application,  e.g., 8 U. S. C. §1101(a)(43)
(IIRIRA’s amendment of the “aggravated felony” definition
applies expressly to “conviction[s] . . . entered before, on,
or after” the statute’s enactment date (internal quotation
marks omitted)).  See St. Cyr, 533 U. S., at 319–320, and
n. 43 (setting out further examples).  Accordingly, we
proceed to the dispositive question whether, as Vartelas
maintains, application of IIRIRA’s travel restraint to him
“would have retroactive effect” Congress did not authorize.
See Landgraf, 511 U. S., at 280.
Vartelas presents a firm case for application of the
antiretroactivity principle.  Neither his sentence, nor the
——————
statement in view of this Court’s  many references to Justice Story’s
formulation in cases involving the  presumption that statutes operate
only prospectively in the absence of a clear congressional statement to
the contrary.
5
In  St. Cyr, 533 U. S., at 317–320, we rejected the Government’s
contention that Congress directed retroactive application of IIRIRA in
its entirety.  
Cite as: 566 U. S. ____ (2012)  9
Opinion of the Court
immigration law in effect when he was convicted and
sentenced, blocked him from occasional visits to his parents in Greece.  Current §1101(a)(13)(C)(v), if applied to
him, would thus attach “a new disability” to conduct over
and done well before the provision’s enactment.
Beyond genuine doubt,  we note, the restraint
§1101(a)(13)(C)(v) places on lawful permanent residents
like Vartelas ranks as a “new disability.” Once able to
journey abroad to fulfill religious obligations, attend funerals and weddings of family members, tend to vital
financial interests, or respond to family emergencies,
permanent residents situated as Vartelas is now face
potential banishment.  We have several times recognized
the severity of that sanction. See,  e.g., Padilla v.  Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 8–9, 16).
It is no answer to say, as the Government suggests, that
Vartelas could have avoided any  adverse consequences if
he simply stayed at home in the United States, his residence for 24 years prior to his 2003 visit to his parents in
Greece. See Brief in Opposition 13 (Vartelas “could have
avoided the application of the statute . . . [by] refrain[ing]
from departing from the United States (or from returning
to the United States).”); post, at 3. Loss of the ability to
travel abroad is itself a harsh penalty,6
 made all the more
devastating if it means enduring separation from close
family members living abroad. See Brief for Asian American Justice Center et al. as Amici Curiae 16–23 (describing illustrative cases). We have rejected arguments for
retroactivity in similar cases, and in cases in which the
——————
6
See Kent v. Dulles, 357 U. S. 116, 126 (1958) (“Freedom of movement
across frontiers . . . may be as close to the heart of the individual as the
choice of what he eats, or wears, or reads.”);  Aptheker v. Secretary of
State, 378 U. S. 500, 519–520 (1964) (Douglas, J., concurring) (right to
travel, “at home and abroad, is important for . . . business[,] . . . cul-
tural, political, and social activities—for all the commingling which gregarious man enjoys”).  
10 VARTELAS v. HOLDER
Opinion of the Court
loss at stake was less momentous.
 In Chew Heong v. United States, 112 U. S. 536 (1884), a
pathmarking decision, the Court confronted the “Chinese
Restriction Act,” which barred Chinese laborers from
reentering the United States without a certificate issued
on their departure.  The Court held the reentry bar inapplicable to aliens who had left the country prior to the
Act’s passage and tried to return afterward without a
certificate. The Act’s text, the Court observed, was not “so
clear and positive as to leave no room to doubt [retroactive
application] was the intention of the legislature.”   Id., at
559.
In Landgraf, the question was whether an amendment
to Title VII’s ban on employment discrimination authorizing compensatory and punitive damages applied to preenactment conduct.  The Court held it did not.  No doubt
the complaint against the employer charged discrimination that violated the Act at the time it occurred.  But
compensatory and punitive damages were not then available remedies. The later provision for such damages, the
Court determined, operated  prospectively only, and did
not apply to employers whose discriminatory conduct occurred prior to the amendment.  See 511 U. S., at 280–
286.  And in Hughes Aircraft, the Court held that a provision removing an affirmative defense to qui tam suits did
not apply to pre-enactment fraud. As in  Landgraf, the
provision attached “a new disability” to past wrongful
conduct and therefore could not apply retrospectively
unless Congress clearly manifested such an intention.
Hughes Aircraft, 520 U. S., at 946–950.
Most recently, in St. Cyr, the Court took up the case of
an alien who had entered a plea to a deportable offense.
At the time of the plea, the alien was eligible for discretionary relief from deportation.  IIRIRA, enacted after
entry of the plea, removed that eligibility.  The Court held
that the IIRIRA provision in point could not be applied to  
Cite as: 566 U. S. ____ (2012)  11
Opinion of the Court
the alien, for it attached a “new disability” to the guilty
plea and Congress had not instructed such a result. 533
U. S., at 321–323.
III
The Government, echoed in part by the dissent, argues
that no retroactive effect is involved in this case, for the
Legislature has not attached any disability to past conduct.  Rather, it has made the relevant event the alien’s
post-IIRIRA act of returning to the United States.  See
Brief for Respondent 19–20; post, at 3. We find this argument disingenuous. Vartelas’ return to the United States
occasioned his treatment as a new entrant, but the reason
for the “new disability” imposed on him was not his lawful
foreign travel.  It was, indeed, his conviction, pre-IIRIRA,
of an offense qualifying as one of moral turpitude. That
past misconduct, in other words, not present travel, is the
wrongful activity Congress targeted in §1101(a)(13)(C)(v).
The Government observes that lower courts have upheld Racketeer Influenced and Corrupt Organizations Act
prosecutions that encompassed pre-enactment conduct.
See Brief for Respondent 18 (citing  United States v.
Brown, 555 F. 2d 407, 416–417 (CA5 1977), and  United
States v. Campanale, 518 F. 2d 352, 364–365 (CA9 1975)
(per curiam)). But those prosecutions depended on criminal activity, i.e., an act of racketeering occuring after the
provision’s effective date. Section 1101(a)(13)(C)(v), in
contrast, does not require any showing of criminal conduct
postdating IIRIRA’s enactment.
Fernandez-Vargas v.  Gonzales, 548 U. S. 30 (2006),
featured by the Government and the dissent, Brief for
Respondent 17, 36–37;  post,  at 3, is similarly inapposite.
That case involved 8 U. S. C. §1231(a)(5), an IIRIRA addition, which provides that an alien who reenters the United
States after having been removed can be removed again
under the same removal order. We held that the provision  
12 VARTELAS v. HOLDER
Opinion of the Court
could be applied to an alien who reentered illegally before
IIRIRA’s enactment. Explaining the Court’s decision, we
said: “[T]he conduct of remaining in the country . . . is the
predicate action; the statute applies to stop an indefinitely
continuing violation . . . .  It is therefore the alien’s choice
to continue his illegal presence . . . after the effective date
of the new la[w] that subjects him to the new . . . legal
regime, not a past act that he is helpless to undo.”  548
U. S., at 44 (emphasis added).  Vartelas, we have several
times stressed, engaged in  no criminal activity after
IIRIRA’s passage. He simply took a brief trip to Greece,
anticipating a return without incident as in past visits to
his parents. No “indefinitely continuing” crime occurred;
instead, Vartelas was apprehended because of a preIIRIRA crime he was “helpless to undo.”  Ibid.
The Government further refers to lower court decisions
in cases involving 18 U. S. C. §922(g), which prohibits the
possession of firearms by convicted felons.  Brief for Respondent 18–19 (citing United States v. Pfeifer, 371 F. 3d
430, 436 (CA8 2004), and United States v. Hemmings, 258
F. 3d 587, 594 (CA7 2001)). “[L]ongstanding prohibitions
on the possession of firearms by felons,” District of Columbia v. Heller, 554 U. S. 570, 626 (2008), however, target a
present danger, i.e., the danger posed by felons who bear
arms. See, e.g., Pfeifer, 371 F. 3d, at 436 (hazardous conduct that statute targets “occurred after enactment of the
statute”); Omnibus Crime Control and Safe Streets Act of
1968, §1201, 82 Stat. 236 (noting hazards involved when
felons possess firearms).7
——————
7
The dissent, see  post, at 6, notes two statutes of the same genre:
laws prohibiting persons convicted of a sex crime against a victim
under 16 years of age from working in jobs involving frequent contact
with minors, and laws prohibiting a person “who has been adjudicated
as a mental defective or who has been committed to a mental insti-
tution” from possessing guns, 18 U. S. C. §922(g)(4).  The dissent is
correct that these statutes do not operate retroactively.  Rather, they Cite as: 566 U. S. ____ (2012)  13
Opinion of the Court
Nor do recidivism sentencing enhancements support the
Government’s position. Enhanced punishment imposed
for the later offense “‘is not to be viewed as . . . [an] additional penalty for the earlier crimes,’ but instead, as a
‘stiffened penalty for the latest crime, which is considered
to be an aggravated offense because [it is] a repetitive
one.’”  Witte v.  United States, 515 U. S. 389, 400 (1995)
(quoting Gryger v.  Burke, 334 U. S. 728, 732 (1948)).  In
Vartelas’ case, however, there is no “aggravated . . . repetitive” offense. There is, in contrast, no post-IIRIRA criminal offense at all.  Vartelas’ travel abroad and return are
“innocent” acts, see  Fleuti, 374 U. S., at 462, burdened
only because of his pre-IIRIRA offense.
In sum, Vartelas’ brief trip abroad post-IIRIRA involved
no criminal infraction. IIRIRA disabled him from leaving
the United States and returning as a lawful permanent
resident. That new disability rested not on any continuing
criminal activity, but on a single crime committed years
before IIRIRA’s enactment.  The antiretroactivity principle
instructs against application of the new proscription
to render Vartelas a first-time arrival at the country’s
gateway.
——————
address dangers that arise postenactment: sex offenders with a history
of child molestation working in close proximity to children, and men-
tally unstable persons purchasing guns.  The act of flying to Greece, in
contrast, does not render a lawful permanent resident like Vartelas
hazardous. Nor is it plausible that Congress’ solution to the problem of
dangerous lawful permanent residents would be to pass a law that
would deter such persons from ever leaving the United States.
As for student loans, it is unlikely that the provision noted by the
dissent, 20 U. S. C. §1091(r), would raise retroactivity questions in the
first place.  The statute has a prospective thrust.  It concerns
“[s]uspension of eligibility” when  a student receiving a college loan
commits a drug crime.  The suspension runs “from the date of th[e]
conviction” for specified periods,  e.g., two years for a second offense of
possession.  Moreover, eligibility may  be restored before the period of
ineligibility ends if the student establishes, under prescribed criteria,
his rehabilitation.  
 
 
14 VARTELAS v. HOLDER
Opinion of the Court
IV
The Second Circuit homed in on the words “committed
an offense” in §1101(a)(13)(C)(v) in determining that the
change IIRIRA wrought had no retroactive effect.  620
F. 3d, at 119–121. It matters not that Vartelas may have
relied on the prospect of continuing visits to Greece in
deciding to plead guilty, the court reasoned.  “[I]t would
border on the absurd,” the court observed, “to suggest that
Vartelas committed his counterfeiting crime in reliance on
the immigration laws.”  Id., at 120.  This reasoning is
doubly flawed.
As the Government acknowledges, “th[is] Court has not
required a party challenging the application of a statute to
show [he relied on prior law] in structuring his conduct.”
Brief for Respondent 25–26. In  Landgraf, for example,
the issue was the retroactivity of compensatory and punitive damages as remedies for employment discrimination.
“[C]oncerns of . . . upsetting expectations are attenuated in
the case of intentional employment discrimination,” the
Court noted, for such discrimination “has been unlawful
for more than a generation.”  511 U. S., at 282, n. 35. But
“[e]ven when the conduct in question is morally reprehensible or illegal,” the Court added, “a degree of unfairness is
inherent whenever the law imposes additional burdens
based on conduct that occurred in the past.”  Id., at 283,
n. 35. And in Hughes Aircraft, the Court found that Congress’ 1986 removal of a defense to a  qui tam action did
not apply to pre-1986 conduct in light of the presumption
against retroactivity. 520 U. S., at 941–942.8
  As in Land-
——————
8
The deleted defense permitted qui tam defendants to escape liability
if the information on which a private plaintiff (relator) relied was
already in the Government’s possession.  Detrimental reliance was
hardly apparent, for the Government, both before and after the statu-
tory change, could bring suit with that information, and “the monetary
liability faced by [a False Claims Act] defendant is the same whether
the action is brought by the Government or by a qui tam relator.” 520 Cite as: 566 U. S. ____ (2012)  15
Opinion of the Court
graf, the relevant conduct (submitting a false claim) had
been unlawful for decades.  See 520 U. S., at 947.
The operative presumption, after all, is that Congress
intends its laws to govern prospectively only. See  supra,
at 7. “It is a strange ‘presumption,’ ” the Third Circuit
commented, “that arises only on . . . a showing [of] actual
reliance.”  Ponnapula v.  Ashcroft, 373 F. 3d 480, 491
(2004). The essential inquiry, as stated in Landgraf, 511
U. S., at 269–270, is “whether the new provision attaches
new legal consequences to events completed before its
enactment.”  That is just what occurred here.
In any event, Vartelas likely relied on then-existing
immigration law. While the presumption against retroactive application of statutes does not require a showing of
detrimental reliance, see Olatunji, 387 F. 3d, at 389–395,
reasonable reliance has been noted among the “familiar
considerations” animating the presumption, see Landgraf,
511 U. S., at 270 (presumption reflects “familiar consid-
erations of fair notice, reasonable reliance, and settled
expectations”). Although not a necessary predicate for invoking the antiretroactivity  principle, the likelihood of
reliance on prior law strengthens the case for reading a
newly enacted law prospectively. See Olatunji, 387 F. 3d,
at 393 (discussing St. Cyr).
St. Cyr is illustrative. That case involved a lawful permanent resident who pleaded guilty to a criminal charge
that made him deportable. Under the immigration law in
effect when he was convicted, he would have been eligible
to apply for a waiver of deportation.  But his removal
proceeding was commenced after Congress, in IIRIRA,
withdrew that dispensation.  Disallowance of discretionary
waivers, the Court recognized, “attache[d] a new disability, in respect to transactions or considerations already
past.” 533 U. S., at 321 (internal quotation marks omit-
——————
U. S., at 948.  
 
 
16 VARTELAS v. HOLDER
Opinion of the Court
ted). Aliens like St. Cyr, the Court observed, “almost
certainly relied upon th[e] likelihood [of receiving discretionary relief] in deciding [to plead guilty, thereby] forgo[ing] their right to a trial.”  Id., at 325.9
  Hence, applying
the IIRIRA withdrawal to St. Cyr would have an “obvious
and severe retroactive effect.”   Ibid. Because Congress
made no such intention plain, ibid., n. 55, we held that the
prior law, permitting relief from deportation, governed St.
Cyr’s case.
As to retroactivity, one might think Vartelas’ case even
easier than St. Cyr’s.  St. Cyr could seek the Attorney
General’s  discretionary dispensation.  Vartelas, under
Fleuti, was free, without seeking an official’s permission,
to make trips of short duration to see and assist his parents in  Greece.10
  The Second Circuit thought otherwise,
compounding its initial misperception (treating reliance as
essential to application of the antiretroactivity principle).
The deportation provision involved in  St. Cyr, 8 U. S. C.
§1229b(a)(3), referred to the alien’s “convict[ion]” of a
crime, while the statutory words  sub judice in Vartelas’
case were “committed an offense.”  §1101(a)(13)(C)(v); see
supra, at 12–13.11
  The practical difference, so far as retro-
——————
9
“There can be little doubt,” the Court noted in  St. Cyr, “that, as
a general matter, alien defendants considering whether to enter into a
plea agreement are acutely aware of the immigration consequences of
their convictions.”  533 U. S., at 322.  Indeed, “[p]reserving [their] right
to remain in the United States may be more important to [them] than
any potential jail sentence.”  Ibid. (internal quotation marks omitted).
See  Padilla v.  Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 9–11)
(holding that counsel has a duty under the Sixth Amendment to inform
a noncitizen defendant that his plea would make him eligible for
deportation).
10
Armed with knowledge that a guilty plea would preclude travel
abroad, aliens like Vartelas might endeavor to negotiate a plea to a
nonexcludable offense—in Vartelas’ case, e.g., possession of counterfeit
securities—or exercise a right to trial.
11
After the words “committed an offense,” §1101(a)(13)(C)(v)’s next
words are “identified in section 1182(a)(2).”  That section refers to “any  
Cite as: 566 U. S. ____ (2012)  17
Opinion of the Court
activity is concerned, escapes from our grasp. Ordinarily,
to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the
immigration officer at the border would check the alien’s
records for a conviction.  He would not call into session a
piepowder court12
 to entertain a plea or conduct a trial.
Satisfied that Vartelas’ case is at least as clear as St.
Cyr’s for declining to apply a new law retroactively, we
hold that Fleuti continues to govern Vartelas’ short-term
travel.
* * *
For the reasons stated, the judgment of the Court of
Appeals for the Second Circuit is reversed, and the case is
remanded for further proceedings consistent with this
opinion.
It is so ordered.
——————
alien convicted of, or who admits having committed,” inter alia, “a crime
involving moral turpitude.”  §1182(a)(2)(A)(i)(I) (emphasis added).  The
entire §1101(a)(13)(C)(v) phrase “committed an offense identified in
section 1182(a)(2),” on straightforward reading, appears to advert to a
lawful permanent resident who has been convicted of an offense under
§1182(a)(2) (or admits to one).
12
Piepowder (“dusty feet”) courts were temporary mercantile courts
held at trade fairs in Medieval  Europe; local merchants and guild
members would assemble to hear commercial disputes.  These courts
provided fast and informal resolution of trade conflicts, settling cases
“while the merchants’ feet were still dusty.”  Callahan, Medieval
Church Norms and Fiduciary Duties in Partnership, 26 Cardozo L. Rev.
215, 235, and n. 99 (2004) (internal quotation marks omitted) (quoting
H. Berman, Law and Revolution: The Formation of the Western Legal
Tradition 347 (1983)). _________________
_________________
Cite as: 566 U. S. ____ (2012)  1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 10–1211
PANAGIS VARTELAS, PETITIONER v. ERIC H.
HOLDER, JR., ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

[March 28, 2012]
 JUSTICE  SCALIA, with whom JUSTICE  THOMAS and
JUSTICE ALITO join, dissenting.
As part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress required that lawful permanent residents who have committed certain crimes seek formal “admission” when they
return to the United States from abroad. 8 U. S. C.
§1101(a)(13)(C)(v). This case presents a straightforward
question of statutory interpretation: Does that statute
apply to lawful permanent residents who, like Vartelas,
committed one of the specified offenses before 1996, but
traveled abroad after 1996?  Under the proper approach to
determining a statute’s temporal application, the answer
is yes.
I
The text of §1101(a)(13)(C)(v) does not contain a clear
statement answering the question presented here. So
the Court is correct that this case is governed by our
longstanding interpretive principle that, in the absence of
a contrary indication, a statute will not be construed to
have retroactive application.  See,  e.g., Landgraf v.  USI
Film Products, 511 U. S. 244, 280 (1994).  The operative
provision of this text—the provision that specifies the act
that it prohibits or prescribes—says that lawful perma-  
 
2  VARTELAS v. HOLDER
SCALIA, J., dissenting
nent residents convicted of offenses similar to Vartelas’s
must seek formal “admission” before they return to the
United States from abroad.  Since Vartelas returned to the
United States after the statute’s effective date, the application of that text to his reentry does not give the statute a
retroactive effect.
In determining whether a statute applies retroactively,
we should concern ourselves  with the statute’s actual
operation on regulated parties, not with retroactivity as an
abstract concept or as a substitute for fairness concerns.
It is impossible to decide whether a statute’s application
is retrospective or prospective without first identifying a
reference point—a moment in time to which the statute’s
effective date is either subsequent or antecedent.  (Otherwise, the obvious question—retroactive in reference to
what?—remains unanswered.)  In my view, the identity of
that reference point turns on the activity a statute is
intended to regulate. For any given regulated party, the
reference point (or “retroactivity event”) is the moment at
which the party does what the statute forbids or fails to do
what it requires.  See Martin v. Hadix, 527 U. S. 343, 362–
363 (1999) (SCALIA, J., concurring in part and concurring
in judgment); Landgraf, supra, at 291 (SCALIA, J., concurring in judgments). With an identified reference point, the
retroactivity analysis is simple. If a person has engaged in
the primary regulated activity before the statute’s effective
date, then the statute’s application would be retroactive.
But if a person engages in the primary regulated activity
after the statute’s effective date, then the statute’s application is prospective only.  In the latter case, the interpretive presumption against retroactivity does not bar the
statute’s application.
Under that commonsense approach, this is a relatively
easy case. Although the  class of aliens affected by
§1101(a)(13)(C)(v) is defined with respect to past crimes,
the regulated activity is reentry into the United States. By  
Cite as: 566 U. S. ____ (2012)  3
SCALIA, J., dissenting
its terms, the statute is all about controlling admission at
the border. It specifies six criteria to identify lawful permanent residents who are subject to formal “admission”
procedures, most of which relate to the circumstances of
departure, the trip itself, or reentry.  The titles of the
statutory sections containing §1101(a)(13)(C)(v) confirm
its focus on admission, rather than crime: The provision is
located within Title III of IIRIRA (“Inspection, Apprehension, Detention, Adjudication, and Removal of Inadmissible and Deportable Aliens”), under Subtitle A (“Revision of
Procedures for Removal of Aliens”), and §301 (“Treating
Persons Present in the United States Without Authorization as Not Admitted”).  110 Stat. 3009–575. And the
specific subsection of IIRIRA at issue (§301(a), entitled
“‘Admission’ Defined”) is an amendment to the definition
of “entry” in the general “Definitions” section of the Immigration and Nationality Act (INA). See ante, at 2–3. The
original provision told border officials how to regulate
admission—not how to punish crime—and the amendment
does as well.
Section 1101(a)(13)(C)(v) thus has no retroactive effect
on Vartelas because the reference point here—Vartelas’s
readmission to the United States after a trip abroad—
occurred years after the statute’s effective date.  Although
Vartelas cannot change the fact of his prior conviction,
he could have avoided  entirely the consequences of
§1101(a)(13)(C)(v) by simply remaining in the United
States or, having left, remaining in Greece.  That
§1101(a)(13)(C)(v) had no effect on Vartelas until he performed a post-enactment activity is a clear indication
that the statute’s application  is purely prospective.  See
Fernandez-Vargas v.  Gonzales, 548 U. S. 30, 45, n. 11,
46 (2006) (no retroactive effect where the statute in
question did “not operate on a completed preenactment
act” and instead turned on “a failure to take timely action
that would have avoided application of the new law  
 
4  VARTELAS v. HOLDER
SCALIA, J., dissenting
altogether”).
II
The Court avoids this conclusion by insisting that
“[p]ast misconduct, . . . not present travel, is the wrongful
activity Congress targeted” in §1101(a)(13)(C)(v).  Ante,
at 11. That assertion does not, however, have any basis
in the statute’s text or structure, and the Court does not
pretend otherwise. Instead, the Court simply asserts that
Vartelas’s “lawful foreign travel” surely could not be the
“reason for the ‘new disability’ imposed on him.”   Ibid.
(emphasis added).  But the  reason  for a prohibition has
nothing to do with whether the prohibition is being applied to a past rather than a future act.  It may be relevant
to other legal inquiries—for example, to whether a legislative act violates one of the Ex Post Facto Clauses in Article
I, see, e.g., Smith v. Doe, 538 U. S. 84, 92 (2003), or one of
the Due Process Clauses in the Fifth and Fourteenth
Amendments, see, e.g., Williamson v. Lee Optical of Okla.,
Inc., 348 U. S. 483, 487 (1955), or the Takings Clause in
the Fifth Amendment, see,  e.g., Kelo v. New London, 545
U. S. 469, 477–483 (2005), or the Obligation of Contracts
Clause in Article I, see,  e.g., United States Trust Co. of
N. Y. v. New Jersey, 431 U. S. 1, 29 (1977). But it has no
direct bearing upon whether the statute is retroactive.*
The Court’s failure to differentiate between the statutoryinterpretation question (whether giving certain effect to a
provision would make it retroactive and hence presump-
——————
* I say no  direct bearing because if the prospective application of a
statute would raise constitutional doubts because of its effect on preenactment conduct,  that  would be a reason to presume a legislative
intent not to apply it unless the conduct in question is postenactment—that is, to consider it  retroactive when the conduct in
question is pre-enactment.  See Clark v. Martinez, 543 U. S. 371, 380–
381 (2005). That is not an issue  here.  If the statute had expressly
made the new “admission” rule applicable to those aliens with prior
convictions, its constitutionality would not be in doubt. Cite as: 566 U. S. ____ (2012)  5
SCALIA, J., dissenting
tively unintended) and the validity question (whether
giving certain effect to a provision is unlawful) is on full
display in its attempts to distinguish §1101(a)(13)(C)(v)
from similar statutes.  Take, for example, the Court’s discussion of the Racketeer Influenced and Corrupt Organizations Act (RICO). That Act, which targets “patterns
of racketeering,”  expressly defines those “patterns” to
include some pre-enactment conduct.  See 18 U. S. C.
§1961(5). Courts interpreting RICO therefore need not
consider the presumption against retroactivity; instead,
the cases cited by the majority consider whether RICO
violates the  Ex Post Facto  Clause. See  United States  v.
Brown, 555 F. 2d 407, 416–417 (CA5 1977); United States
v.  Campanale, 518 F. 2d 352, 364–365 (CA9 1975)
(per curiam). The Government recognized this distinction
and cited RICO to make a point about the Ex Post Facto
Clause rather than the presumption against retroactivity,
Brief for Respondent 17–18; the Court evidently does not.
The Court’s confident assertion that Congress surely
would not have meant this statute to apply to Vartelas,
whose foreign travel and subsequent return to the United
States were innocent events, ante, at 11, 14, simply begs
the question presented in this case. Ignorance, of course,
is no excuse  (ignorantia legis neminem excusat); and his
return was entirely lawful only if the statute before us did
not render it unlawful.  Since IIRIRA’s effective date in
1996, lawful permanent residents who have committed
crimes of moral turpitude are forbidden to leave the
United States and return without formally seeking “admission.” See §1101(a)(13)(C)(v).  As a result, Vartelas’s
numerous trips abroad and “uneventful” reentries into the
United States after the passage of IIRIRA, see ante, at 5,
were lawful only  if §1101(a)(13)(C)(v) does not apply to
him—which is, of course, precisely the matter in dispute
here.
The Court’s circular reasoning betrays its underlying  
 
6  VARTELAS v. HOLDER
SCALIA, J., dissenting
concern: Because the Court believes that reentry after a
brief trip abroad should be lawful, it will decline to apply a
statute that clearly provides otherwise for certain criminal
aliens. (The same instinct likely produced the Court’s
questionable statutory interpretation in  Rosenberg v.
Fleuti, 374 U. S. 449 (1963).)  The Court’s test for retroactivity—asking whether the statute creates a “new disability” in “respect to past events”—invites this focus on fairness. Understandably so, since it is derived from a Justice
Story opinion interpreting a provision of the New Hampshire Constitution that forbade retroactive laws—a provision comparable to the Federal Constitution’s ex post facto
prohibition and bearing no relation to the presumption
against retroactivity. What is unfair or irrational (and
hence should be forbidden) has nothing to do with whether
applying a statute to a particular act is prospective (and
thus presumptively intended) or retroactive (and thus
presumptively unintended).  On the latter question, the
“new disability in respect to past events” test provides no
meaningful guidance.
I can imagine countless laws that, like §1101(a)(13)
(C)(v), impose “new disabilities” related to “past events”
and yet do not operate retroactively.  For example, a statute making persons convicted of drug crimes ineligible for
student loans.  See, e.g., 20 U. S. C. §1091(r)(1).  Or laws
prohibiting those convicted of sex crimes from working in
certain jobs that involve repeated contact with minors.
See,  e.g., Cal. Penal Code Ann. §290.95(c) (West Supp.
2012). Or laws prohibiting those previously committed
for mental instability from purchasing guns. See, e.g., 18
U. S. C. §922(g)(4).  The Court concedes that it would not
consider the last two laws inapplicable to pre-enactment
convictions or commitments.  Ante, at 12, n. 7.  The Court
does not deny that these statutes impose a “new disability
in respect to past events,” but it distinguishes them based
on the reason for their enactment: These statutes “address Cite as: 566 U. S. ____ (2012)  7
SCALIA, J., dissenting
dangers that arise postenactment.”  Ante, at 13, n. 7. So
much for the new-disability-in-respect-to-past-events test;
it has now become a new-disability-not-designed-to-guardagainst-future-danger test. But why is guarding against
future danger the only reason Congress may wish to regulate future action in light of past events?  It obviously is
not. So the Court must invent yet another doctrine to
address my first example, the law making persons
convicted of drug crimes ineligible for student loans.
According to the Court, that statute differs from
§1101(a)(13)(C)(v) because it “has a prospective thrust.”
Ante, at 13, n. 7.  I cannot imagine what that means, other
than that the statute regulates post-enactment con-
duct.  But, of course, so does §1101(a)(13)(C)(v).  Rather
than reconciling any of these distinctions with Justice
Story’s formulation of retroactivity, the Court leaves to
lower courts the unenviable task of identifying newdisabilities- not- designed- to- guard-against-future-dangerand-also-lacking-a-prospective-thrust.
And anyway, is there any doubt that §1101(a)(13)(C)(v)
is intended to guard against the “dangers that arise
postenactment” from having aliens in our midst who have
shown themselves to have proclivity for crime?  Must that
be rejected as its purpose simply because Congress has not
sought to achieve it by all possible means—by ferreting
out such dangerous aliens and going through the expensive and lengthy process of deporting them?  At least some
of the post-enactment danger can readily be eliminated by
forcing lawful permanent residents who have committed
certain crimes to undergo formal “admission” procedures
at our borders. Indeed, by limiting criminal aliens’ opportunities to travel and then return to the United States,
§1101(a)(13)(C)(v) may encourage self-deportation.  But all
this is irrelevant. The positing of legislative “purpose” is
always a slippery enterprise compared to the simple
determination of whether a statute regulates a future  
 
 
8  VARTELAS v. HOLDER
SCALIA, J., dissenting
event—and it is that, rather than the Court’s pronouncement of some forward-looking  reason, which governs
whether a statute has retroactive effect.
Finally, I cannot avoid observing that even if the Court’s
concern about the fairness or rationality of applying
§1101(a)(13)(C)(v) to Vartelas were relevant to the statutory interpretation question, that concern is greatly exaggerated. In disregard of a federal statute, convicted criminal Vartelas repeatedly traveled to and from Greece
without ever seeking formal admission at this country’s
borders. When he was finally unlucky enough to be apprehended, and sought discretionary relief from removal
under former §212(c) of the INA, 8 U. S. C. §1182(c) (1994
ed.), the Immigration Judge denying his application found
that Vartelas had made frequent trips to Greece and had
remained there for long periods of time, that he was “a
serious tax evader,” that he had offered testimony that
was “close to incredible,” and that he had not shown hardship to himself or his estranged wife and children should
he be removed. See 620 F. 3d 108, 111 (CA2 2010); Brief
for Respondent 5 (internal quotation marks omitted).  In
decrying the “harsh penalty” imposed by this statute on
Vartelas, the Court ignores those inconvenient facts.
Ante, at 9. But never mind.  Under any sensible approach
to the presumption against retroactivity, these factual
subtleties should be irrelevant to the temporal application
of §1101(a)(13)(C)(v).
* * *
This case raises a plain-vanilla question of statutory
interpretation, not broader  questions about frustrated
expectations or fairness. Our approach to answering that
question should be similarly straightforward: We should
determine what relevant activity the statute regulates
(here, reentry); absent a clear statement otherwise, only
such relevant activity which occurs after the statute’s Cite as: 566 U. S. ____ (2012)  9
SCALIA, J., dissenting
effective date should be  covered (here, post-1996 reentries). If, as so construed, the statute is unfair or irrational enough to violate the Constitution, that is another
matter entirely, and one not  presented here.  Our interpretive presumption against retroactivity, however, is just
that—a tool to ascertain what the statute means, not a
license to rewrite the statute in a way the Court considers
more desirable.
I respectfully dissent.