Supreme Court New South Wales Medium Neutral Citation: Estate Gooley, Deceased [2022] NSWSC 734 Hearing dates: 16 and 18 February 2022 Decision date: 07 June 2022 Jurisdiction: Equity Before: Lindsay J Decision: Subject to allowing the parties an opportunity to be heard about the form of orders to be made, the plaintiff is to receive a legacy of $250,000 from the estate of the deceased as family provision relief granted under Chapter 3 of the Succession Act 2006 NSW; the proceeds of the legacy are to be managed by the NSW Trustee as a protected estate, governed by the provisions of the NSW Trustee and Guardian Act 2009 NSW; and, unless the Court otherwise orders, $130,000 of the legacy is to be managed by the NSW Trustee as a fund dedicated to the plaintiff's rehabilitation from a drug addiction. Catchwords: SUCCESSION — Family provision — Claim by adult grandson CIVIL PROCEDURE — Protective jurisdiction — Administration of estates — Incapacity for self-management – Protected Management order – Part only of Estate – Management committed to NSW Trustee MENTAL HEALTH — Management of estate — Financial management order Legislation Cited: Civil Procedure Act 2005 NSW NSW Trustee and Guardian Act 2009 NSW Probate and Administration Act 1898 NSW Succession Act 2006 NSW Uniform Civil Procedure Rules 2005 NSW Cases Cited: Andrew v Andrew (2012) 81 NSWLR 6 Bassett v Bassett [2021] NSWCA 320 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Churton v Christian (1988) 13 NSWLR 241 CJ v AKJ [2015] NSWSC 498 Dare v Furness (1997) 44 NSWLR 493 Durham v Durham (2011) 80 NSWLR 335 Goodman v Windeyer (1980) 144 CLR 490 In re Allen [1922] NZLR 218 Jones v Dunkel (1959) 101 CLR 298 McKenzie v Baddeley [1991] NSWCA 197 Petrohilos v Hunter (1991) 25 NSWLR 347 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Re Estate Bohar; Bockos v Bohar [2021] NSWSC 1177 Re Fulop Deceased (1987) 8 NSWLR 679 Skinner v Frappell [2008] NSWCA 296 Warren v McKnight (1996) 40 NSWLR 390 Category: Principal judgment Parties: Plaintiff: Sean Damon Campbell Gooley Defendant: Brett Raymond Gooley Representation: Counsel: Plaintiff: Self represented Defendant: J P Knackstredt and T Jonker Solicitors: Plaintiff: Self represented Defendant: Macpherson Kelley Solicitors File Number(s): 2019/00329347 Judgment INTRODUCTION 1. Melville William Gooley ("the deceased") died on 23 December 2017 aged 92 years, leaving a will dated 1 February 2010 probate of which was granted to the defendant, his son and the father of the plaintiff, on 13 May 2021 after a contest reported in judgments of Sackar J published on 12 February 2021 ([2021] NSWSC 56), 15 March 2021 ([2021] NSWSC 228) and 16 March 2021 ([2021] NSWSC 268). 2. The precise value of the deceased's estate cannot be determined in these proceedings because the defendant remains engaged in disputation with his sisters (who, for many years before the deceased's death, managed his financial affairs) following their bitter contest in the probate proceedings before Sackar J. 3. For the purpose of these proceedings, the defendant reports to the Court that: (a) the deceased's assets were largely comprised of shareholdings and trust the underlying interests in a complex web of private companies and trusts; (b) the underlying assets of this complex web were mostly property holdings; (c) the estate has an estimated value of about $28 million; and (d) allowing for specific gifts in the deceased's will, his residuary estate has a value of approximately $16.98 million. 4. No distributions have been made from the estate of the deceased to date. 5. The deceased was married once only, to Joyce Gooley, who died in February 2000. 6. There were five children of the marriage, two of whom have died. The defendant and three sisters (Melinda, Aleta and Janine) survived the deceased, but Janine died in February 2018. The deceased's second son, Damon, died in August 1981. The defendant was born in October 1950, the eldest of the deceased's children. 7. The deceased was survived by 11 grandchildren. Four of those (including the plaintiff) are children of the defendant. Three are children of Melinda. One is a child of Aleta. Three are children of Janine. There is before the Court no evidence of their personal circumstances or their personal relationships with the deceased. 8. The scheme of the deceased's will was simply to divide his estate between his four surviving children per stirpes, naming each child as a beneficiary of one or more specific gifts and all four surviving children as beneficiaries in equal shares of his residuary estate. There were no specific gifts for grandchildren. The defendant contends, and I accept, that the deceased's intention was to make provision for his children, leaving them in turn to make provision for their own children in due course. 9. The plaintiff is an adult grandson of the deceased and the only child of the defendant by his first marriage. As a litigant in person (with some access to legal assistance in the early stages of these proceedings), he applies for family provision relief under Chapter 3 of the Succession Act 2006 NSW. He bears the onus of proof on his application. 10. He claims to be a person eligible to apply for a family provision order by reason of section 57(1)(e) of the Succession Act 2006, which defines an "eligible person", so far as is material and with emphasis added, as "a person: 1. who was, at any particular time, wholly or partly dependent on the deceased person, and 2. who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member." 1. The plaintiff's status as an eligible person (and hence, by virtue of section 59(1)(a) of the Succession Act, his standing to apply for family provision relief) is hotly contested, as is his contention (by reference to section 59(1)(b) of the Act) that, having regard to all the circumstances of the case, whether past or present, there are "factors which warrant the making" of his application. On his own admission, he has relapsed into heroin use about three times since his commencement of methadone treatment 15-20 years ago, albeit (he says) not recently. His long term use of methadone is consistent with addiction as distinct from therapeutic use designed to kick a heroin habit. 2. Allowance must also be made for the facts that: (a) the plaintiff commenced these proceedings by a summons filed more than the limitation period of 12 months after the date of death of the deceased and, so, cannot maintain his application for a family provision order unless the Court (under section 58(2) of the Succession Act) "otherwise orders on sufficient cause being shown"; (b) the plaintiff has not expressly sought an extension of time under section 58(2) in his originating process; (c) and the defendant opposes any grant of an extension of time. 3. Upon an assumption that the plaintiff overcomes these hurdles, a question arises (under section 59(1)(c) of the Succession Act) about whether he can satisfy the jurisdictional requirement that the Court be satisfied that he was left by the deceased without adequate provision for his proper maintenance, education or advancement in life in the will of the deceased. Upon an assumption that (to use a common, but not wholly adequate, shorthand expression) the deceased owed a "moral duty" to make testamentary provision for the plaintiff, the fact that his will made no provision for the plaintiff requires notice; but it simply drives attention back to the controversial question whether an assumption of "moral duty" can be sustained. 4. Upon an assumption that the plaintiff overcomes each of the jurisdictional barriers to his application for a family provision order (set out in sections 58(2) and 59(1)(a)-(c) of the Succession Act), section 59(2) of the Act requires the Court, upon an exercise of discretion, to consider whether any provision for the plaintiff "ought" to be made out of the estate of the deceased for the plaintiff's maintenance, education or advancement in life, having regard to the facts known to the Court at the time any such order is made. 5. Many of the plaintiff's forensic problems in pursuit of his application for a family provision order flow from the fact that he has a history of drug addiction from which his father, the defendant (a general medical practitioner of many years standing) is confident, despite protests, he has yet to overcome. 6. The plaintiff lives in straightened circumstances. Living in a drug culture, he is barely employable, dependent upon social security (a disability pension), living in public housing and without substantial prospects. His only substantive asset is a small car which he purchased in 2018 with assistance from his mother. His bleak life has its roots not only in drug addiction (a manifestation of his wayward teens) but, in part, in the breakdown of the marriage between his mother (a lawyer by profession) and his father which, in his perception (but not that of the defendant), rendered him dependent upon the deceased for emotional, if not also financial, support. 7. During the course of the hearing, the defendant made a series of unsolicited, open offers (which I assume were made on a without admission basis, although not expressly so), the culmination of which was an offer (conditional upon the plaintiff submitting to admission to a rehabilitation programme, for up to six months, as an inpatient in a medical establishment to be nominated by the defendant) that: 1. the deceased's estate will pay the cost of the programme up to $130,000; and 2. if the plaintiff completes the programme, the estate will pay him the sum of: 1. the balance of $130,000 after payment of the cost of the programme; and 2. a further $20,000. 1. This offer is consistent with an offer made by the defendant, through his solicitors, to the plaintiff (through the solicitors then acting for him) in mid-2021. That offer was confirmed in a letter dated 24 June 2021 to the following effect: "In order to assist your client [the plaintiff] attaining sobriety, our client [the defendant] is prepared to meet your client's costs for rapid opioid detoxification treatment and insertion of a naltrexone pellet, upon production of accounts and receipts. In this regard, our client has made an appointment for Sean Gooley [the plaintiff] to attend at the Sydney Clinic for an appointment with Dr … on 9 July 2021 at 09:00AM. We enclose a copy of the letter of confirmation from the Sydney Clinic in this regard. Could you please let us have your client's response to this offer by close of business on Friday, 2 July 2021. We look forward to hearing from you shortly." 1. The plaintiff did not take up that offer. In cross-examination, and in presentation of his case generally, he expressed concern that his father's offers of rehabilitation assistance have been impractical because they have not been accompanied by financial support, or somewhere to live, coming out of a rehabilitation programme. 2. Whether the plaintiff would conscientiously participate in a rehabilitation programme with a solid post-programme assistance package is an open question. For present purposes, it is sufficient to record that I am not satisfied that the plaintiff's rejection of particular rehabilitation offers made by the defendant is indicative of a determination to eschew rehabilitation. 3. The defendant's final open offer was made in the wake of a submission on behalf of the defendant that, if the Court were minded to make an order for provision in favour of the plaintiff, it should make an order for no more than about $50,000 by way of a legacy. That submission preceded the open offer. 4. The defendant's offers have been predicated upon his deep, genuine concern that, if any financial provision were to be made for the plaintiff without his rehabilitation from drugs, it would be highly detrimental to him because it would create an opportunity for him to buy drugs, with the risk of overdose or death. 5. In the course of discussion about the defendant's offers, I expressed the view, which I hold, that the plaintiff is incapable of managing any substantial amount of money, with the consequence that any grant of more than nominal family provision relief to him may require the appointment of a suitable person to manage his estate under the NSW Trustee and Guardian Act 2009 NSW. 6. In my opinion, viewed in the context of an award of more than a nominal amount of provision under Chapter 3 of the Succession Act, the plaintiff is a person incapable of managing his affairs within the meaning of section 41 of the NSW Trustee and Guardian Act 2009: CJ v AKJ [2015] NSWSC 498 at [27]-[42]. He has for many years subsisted in public housing; on a disability pension; without gainful employment; unable to hold down any job, however humble; addicted to heroin and unable or unwilling to wean himself from methadone treatment used as a heroin substitute; unaccustomed to dealing with large sums of money; likely, if funded, to buy drugs and, as the defendant fears, expose himself to the risk of an overdose; and liable to be exploited. 7. The plaintiff indicated that he would submit to an order for the appointment of the NSW Trustee as a protected estate manager. The defendant declined to enter that territory. 8. As a practical matter, a grant of family provision of the order of $20,000 (or $50,000) or thereabouts would not be sufficient to warrant the expense of the appointment of a protected estate manager, given the costs inherent in protected estate management. The plaintiff would require a legacy of no less than about $100,000 to bear the ongoing management fees chargeable, in the ordinary course, by the NSW Trustee. 9. Leaving to one side the prospect of protected estate management of his affairs, the plaintiff rejected the defendant's offer because, as I understood him, he would prefer the stability of his life in public housing, with the freedom to continue his regular use of methadone (as a substitute for heroin), to the trauma of a rehabilitation programme and the uncertainty of life after completion of such a programme without substantial financial assistance of an order well in excess of $20,000. 10. My understanding is that the defendant's offer remains open notwithstanding that, during the course of the hearing, the plaintiff declined to accept it. I have not been advised otherwise. Nevertheless, I do not rely upon the offer as an admission by the defendant against interest in my determination of the plaintiff's application. It is, rather, an aid to understanding the context in which the proceedings fall to be determined. FACTUAL CONTEXT 1. The plaintiff was born in April 1981 and is now aged 41 years. He is the only child of the marriage between the defendant and M (a pseudonym). His parents married in January 1979 and separated in January 1985 when M left the family home at Cronulla, taking the plaintiff with her. In the years following the separation, M lived in various places (including Lane Cove, Darlinghurst and Darwin) and the plaintiff generally followed her. 2. In so far as it may be material, the evidence includes cameo appearances by M as a source for the plaintiff of love, comfort and practical assistance. She helped him to buy a car in 2017, for example; she helped him to draft his summons commencing these proceedings; and she helped him draft his affidavit evidence. What she stopped short of doing, however, was making herself available as a witness in the plaintiff's cause – he says, because she has sought to avoid conflict with the defendant. The defendant has made no submission, by reference to Jones v Dunkel (1959) 101 CLR 298, that the plaintiff should have adduced evidence from her. 3. Although the defendant and M appear since to have co-operated from time to time in discharge of their parental obligations towards the plaintiff, the break down in their marriage appears to have been toxic. This is not, in itself, a fact significant to the determination of these proceedings, but it lends support to the plaintiff's case that the breakdown in his parents' marriage was a factor that led him to look to the deceased for parental support. 4. The fact that, in the context of the breakdown of her marriage, M engaged the deceased in litigation (as well as the defendant) provides no reasonable foundation for rejecting the plaintiff's evidence that he remained close to the deceased. 5. Between the date of his birth and the date of his parents' separation, all three lived in the family home at Cronulla, next door to the home of the deceased and his wife, Joyce. 6. The Family Court of Australia made custody orders affecting the plaintiff in February 1988, after which the plaintiff lived primarily with his mother, but periodically (six days per fortnight) with the defendant at the defendant's new residence at Caringbah. 7. Between February 1988 and May 1991 or thereabouts the plaintiff's primary residence was with his mother. During that period he generally spent time with the defendant on alternate weekends plus one week day per fortnight and during school holidays other than summer holidays. 8. In May 1991 the defendant remarried and (in or about October 1991) moved to Drummoyne. 9. Between 1991 and 1997 or thereabouts, the plaintiff continued to spend time with the defendant on alternate weekends and during school holidays. In or about 1997 (when aged about 16 years) he decided to cease living with the defendant. He says he felt unwelcome. The defendant says that he craved attention lost when the first child of his second marriage was born. Both may be correct. On the other hand, a 16-year old teenager might just be at the age when the constraints of routine access weekends are likely to be rejected. 10. From about 1995, when the plaintiff was living with his mother, they lived in Darlinghurst. 11. After attendance at Burraneer Bay Public School and Lane Cove Public School, the plaintiff attended The Scots College at Bellevue Hill, which he left in or about year 11 of his studies (he says because he felt his mother could not afford the College fees). He thereafter attended Woolooware High School for a period. On the defendant's case, attempts by the defendant to assist him to finish his education with enrolments at Bradfield College and St Joseph's College were unsuccessful as he failed to attend those schools. 12. Having fallen in with a "wrong crowd" of friends (as he now describes them), the plaintiff began experimenting with drugs when he was about 15-17 years old, ultimately developing a heroin addiction; a problem which the defendant believes (on reasonable grounds) persists to this day. Various attempts by his mother and the defendant to assist him to attain sobriety by facilitating counselling and rehabilitation programmes have been unsuccessful. The defendant's evidence, which I accept, is that the plaintiff continues to take drugs, despite being on a methadone programme for an overly long time, itself indicative of addiction. His drug addiction has been a factor in his acquisition of a criminal record involving multiple offences, commencing in 1999. 13. The plaintiff has lived in public housing since about 2007. He says that, when he got his own place, the deceased installed bars on the windows to protect him from intruders. This much is remembered by the defendant as an incident that occurred when the plaintiff felt threatened by drug addicts in his neighbourhood. 14. The defendant did attempt from time to time to provide him with accommodation: first (he says, and the plaintiff denies) with a room in the defendant's family home at Drummoyne in 1997, later, in about 2001 (as is common ground), with a room at the Mariners' Court Hotel (owned by the defendant), in Woolloomooloo, where the defendant conducted a surgery as part of his practice as a general medical practitioner. 15. From his perspective, the defendant's attempts to provide accommodation for the plaintiff foundered for reasons he tributes to the plaintiff's drug addiction. 16. The plaintiff says (and I accept) that he lived with the deceased for about three to four weeks, at the deceased's family home in Cronulla, in the third quarter of 1996 as a member of the deceased's household. 17. The deceased, for a time in or about 1999, allowed the plaintiff to reside in a home unit he owned at Cronulla, which the plaintiff chose to leave after a short time. The plaintiff estimates that he lived in the unit for approximately three months, while he was attempting to become sober. He says that he left the unit to return to live with his mother because he was unable to sustain an employment opportunity that the deceased had arranged for him. 18. Attempts by members of the plaintiff's family (including attempts by his parents and the deceased) to help him have generally ended badly because of his addiction, his misbehaviour under the influence of drugs and his unsavoury connections with a drug culture. 19. The defendant's evidence (which I accept as plausible but not determinative) is that, after the bad experience of allowing the plaintiff to reside in his Cronulla unit, the deceased resolved to have nothing further to do with him because of anxiety about his drug culture. 20. This I take to be a rejection not of the plaintiff as a person but of his drug culture and his refusal, or inability, to wean himself off drugs. I take it also to be an expression of a passing, even if recurrent, frustration with the plaintiff, not an emphatic disclaimer of him for all time. 21. A qualification to acceptance of the defendant's evidence is that, on his own evidence, the deceased began to decline mentally from about 2007 and he increasingly became estranged from the deceased. In his probate judgment, Sackar J determined that the deceased lacked testamentary capacity after the time he made his 2010 will. In separate, current proceedings against his sisters he contends that the deceased suffered cognitive impairment and dementia from about 2012. What he describes as a close relationship with the deceased appears to have deteriorated rapidly in or about 2006 or 2007. 22. Add to this the fact that the defendant says that he had only limited contact with the plaintiff "from 2001 until approximately 2011" and it becomes apparent that his opportunities to observe the relationship between the plaintiff and the deceased were constrained. For that reason, his evidence provides at best an uncertain basis for rejecting the plaintiff's evidence that he maintained a close relationship with the deceased until the time of the deceased's death, all the stronger for having but a poor relationship with the defendant. 23. The defendant was the deceased's doctor from 1979 to 2006 or thereabouts. Towards the end of 2006 they argued about money, an argument that marked the beginning of an estrangement (that continued until the deceased's death) and, the defendant believes, the deceased's descent into dementia. 24. The strained relationships within the extended Gooley family are illustrated by the fact that the defendant's sisters marginalised him in arrangements they made for the deceased's funeral in January 2018, but they allowed the plaintiff to speak at the funeral. I do not attribute great significance to this, in itself, but it is consistent with an impression within the family that there was a special connection between the plaintiff and the deceased. The plaintiff was the only one of the deceased's grandchildren who spoke at the funeral. 25. Despite persistent and sometimes aggressive provocation from the plaintiff, and what the plaintiff characterises as their unfair rejection of him, the plaintiff's parents have demonstrated patience and fortitude in helping him when presented with opportunities to do so. 26. A measure of the plaintiff's isolation from his family is that he has a daughter (born in July 2010) with only limited rights of access. She is cared for by her maternal aunt. 27. Understandably, the plaintiff professes a desire to play a larger role in the life of his daughter. Whether that is realistic or not is not a question that can be assessed in these proceedings. Suffice to say that much may depend on whether he chooses, and adheres to, a path of drug rehabilitation. QUESTIONS OF CREDIT 1. The plaintiff's connection with drugs, his criminal record associated with that connection, and his numerous toxic and threatening emails to the defendant provide a firm foundation for criticism of his credit as a witness and the reliability of his evidence, particularly evidence reaching far back into early memory. All that needs to be taken into account in any assessment of his evidence. 2. Nevertheless, he presented himself at the hearing of these proceedings (without, at that time, legal representation) in the guise of an honest and intelligent man. His evidence on particular questions needs to be approached with caution, but the overall picture presented by him (in the context of objective facts about his family life) does not depend upon acceptance of his evidence in all respects. 3. No criticism could reasonably be made of the plaintiff's corroborating witness (Brett Munro) beyond a question as to the reliability of evidence given many years after the event about early childhood activities. Mr Munro presented as an objective, honest, independent witness who provided support for the plaintiff's case about interaction between the plaintiff and the plaintiff's paternal grandparents. He confirmed the plaintiff's evidence about having his own room in the deceased's home (which he visited on "sleep overs" with the defendant there); Friday night dinners at a Chinese restaurant with the deceased; and playing in the deceased's yard. Although he could not now recall with what frequency he and the plaintiff joined forces in these events, importance attaches to his evidence because it corroborates evidence of the plaintiff and casts doubt on the defendant's blanket denial of it. 4. The defendant presented as an honest man, a strong personality, a man confident of his opinions and a man determined to pursue his own objectives in a disciplined way. He was, perhaps, too sensitive to the plaintiff's criticism of his performance of parental duties; but that is not altogether surprising in circumstances in which he has spent years of frustration in dealing with the plaintiff's drug habit, toxic emails and disturbing threats (including threats to his second family). I accept that, at least during the plaintiff's minority, he endeavoured to care for the plaintiff with live-in staff and a succession of overseas holidays. He was (and is), in his own way, a caring father. 5. The defendant's analysis of the plaintiff's drug culture was objective, analytical and professional, based upon a long career as a general medical practitioner experienced in dealing with patients afflicted by a drug habit. 6. There are in the evidence two notable illustrations of the parties' attempts to reconstruct events of long ago. The first is the fact that, in an affidavit responsive to an affidavit of the plaintiff, the defendant conceded that the plaintiff was correct in recording that the defendant had made maintenance payments to M by means of cheques drawn payable to the plaintiff and delivered to M through the plaintiff. The second is the defendant's use of medical reports prepared, on his instructions, in relation to custody proceedings involving a very young plaintiff as a means of discounting the plaintiff's memories of an unhappy relationship with his father. Not unnaturally, neither party could claim a complete and accurate recall of events that occurred long ago. SHOULD THE PLAINTIFF BE GRANTED AN EXTENSION OF TIME?: SUCCESSION ACT, SECTION 58(2) 1. These proceedings were commenced by a summons filed on 21 October 2019, which summons was amended on 19 April 2021 and then again on 28 June 2021. 2. The first version of the summons named as defendants (to represent the estate of the deceased) the deceased's daughters, Aleta and Melinda. The second version of the summons added the present defendant as a third defendant. The third and final version of the summons omitted the names of Aleta and Melinda, leaving the defendant as the only defendant. 3. All three versions of the summons were filed more than one year after the death of the deceased on 23 December 2017. Critically, the first version of the summons was filed about one year and 11 months after the date of death. It was, however, filed about one year and six months before the deceased's estate was made the subject of a grant of probate on 13 May 2021. 4. No version of the summons included an application for an order under section 58(2) of the Succession Act that the time within which the plaintiff could make an application for a family provision order be extended. In my assessment, that is not a significant problem. Each version of the summons included a conventional claim of relief for "such further or other orders the Court may deem fit". Section 90 of the Civil Procedure Act 2005 NSW, and rule 36.1 of the Uniform Civil Procedure Rules 2005 NSW each empower the Court, in any event, to make such orders as the nature of a case might require. UCPR rule 36.1 specifically empowers the Court to make such orders "whether or not a claim for relief extending to that … order is included in any originating process or notice of motion. 5. In calculating the plaintiff's delay in the commencement of proceedings, notice should be taken of the fact that the first version of the summons (signed by the plaintiff personally) bears the date 20 December 2018 (by a few days, just within the limitation period prescribed by section 58(2) of the Succession Act), indicative of knowledge on his part of the availability of family provision relief about 11 months before the summons was filed. At about that time, he attempted to file his summons in the then pending probate proceedings, but it was rejected by the Court's registry and, in the absence of a supporting affidavit, his application for a waiver of court fees on the summons was declined by a registrar. 6. Upon any assessment of the plaintiff's delay, notice must also be taken of objective uncertainty about the identity of the deceased's executor and the likely recipient of a grant of probate following adjudication of disputes about the validity of the deceased's several wills. The plaintiff's third (and final) version of the summons was filed within less than two months after the defendant was granted probate, and the second version of the summons (which joined the defendant in the proceedings) was filed about one month before he received a grant of probate. 7. As has been earlier noted, at the time of hearing of the plaintiff's claim for a family provision order, no part of the deceased's estate had been distributed. 8. The amplitude of the deceased's estate (although yet to be finally quantified) is far in excess of anything which the plaintiff could reasonably expect of a successful application for a family provision order. 9. All these circumstances support a finding that there is a sufficient explanation for the plaintiff's delay in commencement of these proceedings, and there is no material prejudice to any person if an order is made extending the time for the making of an application for a family provision order. 10. The plaintiff bears the onus of showing "sufficient cause" for any grant of an extension of time: Durham v Durham (2011) 80 NSWLR 335 at [39]. What may constitute "sufficient cause" must depend on all the circumstances of the particular case, unconstrained by any rigid formulae. 11. Conventionally, by reference to earlier cases including Warren v McKnight (1996) 40 NSWLR 390 at 394E and Dare v Furness (1997) 44 NSWLR 493 at 500C, factors which the Court may take into account in determining whether "sufficient cause" has been shown include: (a) the sufficiency of the plaintiff's explanation for delay in making a claim for family provision relief; (b) any prejudice to beneficiaries occasioned by the delay, other than disappointment that might be experienced upon adjustment of entitlements consequent upon the making of an order for provision; (c) the existence of any unconscionable conduct by either side bearing upon the application for family provision relief; and (d) the strength of the plaintiff's case for the making of a family provision order. 12. In the circumstances of the present case, uncertainty in administration of the deceased's estate, the size of the estate and the fact that there has been no distribution of the estate weigh heavily in favour of a grant of an extension of time. No party to the proceedings has engaged in any form of unconscionable conduct, so that consideration can be put aside. As appears from what follows in this judgment, there is sufficient strength in the plaintiff's case for the making, at least, of a family provision order along the lines of the defendant's final open offer. 13. Accordingly, I propose to make an order that the time within which the plaintiff was entitled to make an application for a family provision order be extended up to and including the date upon which the third version of his summons (that which was the subject of the final hearing) was filed. THE PLAINTIFF'S CHARACTER AND CONDUCT: SUCCESSION ACT, SECTION 60(2)(m) 1. The defendant's criticism of the plaintiff goes beyond submissions about his credit, and reliability, as a witness. 2. By reference to section 60(2)(m) of the Succession Act, the defendant contends that the character and conduct of the plaintiff, before and after the death of the deceased, weigh heavily against him upon a consideration of whether he is an eligible person, whether to make a family provision order in his favour and the nature of any such order that might be made: Succession Act, section 60(1). 3. There is much force in this submission. The plaintiff's drug use, his criminal record and his toxic and threatening emails do reflect badly upon him. 4. They tell against him, not so much upon a determination of whether he is an "eligible person" (Succession Act, sections 57(1)(e), 59(1)(a) and 60) as upon the questions that follow upon a finding of eligibility: "factors warranting" (section 59(1)(b)), "adequacy of provision" (sections 59(1)(c) and 60) and "proper order" (sections 59(2) and 60). 5. In a large sense, the plaintiff's "character and conduct" lie at the heart of the proceedings. They do not operate as an absolute bar to success on his application for a family provision order, but they do inform an assessment of his relationship with the deceased, any form of "duty" the deceased might be thought to have had to make provision for him and the appropriateness of any family provision order that might call for consideration. In my assessment, they tell most forcefully against any large award of provision but in favour of an award of provision calculated to provide the plaintiff with an opportunity to engage constructively with the challenge of drug rehabilitation as a means redeeming himself. THE PLAINTIFF'S ELIGIBILITY TO MAKE AN APPLICATION FOR A FAMILY PROVISION ORDER: SUCCESSION ACT, SECTIONS 57(1)(b), 59(1)(a) AND 60 1. The standing of a grandchild to apply for a family provision order is governed by section 57(1)(e) of the Succession Act, read with section 59(1)(a), taking into account the matters prescribed by section 60(2) for the Court's consideration. 2. Section 57(1)(e) provides a definition of the concept of an "eligible person" by reference to the status of a person as a grandchild of the deceased. Section 59(1)(a) requires that the Court, on an application for a family provision order, be satisfied that the plaintiff is an eligible person. Section 60(2) lists a broad range of factors bearing upon, inter alia, personal relationships, financial circumstances, any evidence of a deceased person's testamentary intentions, the character and conduct of the plaintiff and other factors deemed relevant. Section 60(2) provides a non-exhaustive checklist of topics which (as recognised in section 60(1)) may bear upon whether a plaintiff is an eligible person, whether to make a family provision order, and the nature of any such order that might be made. 3. There is no age limit placed upon a grandchild making an application for a family provision order. 4. The standing of a grandchild depends critically upon proof by the grandchild that he or she was, at a particular time, "wholly or partly dependent on the deceased person". The fact of "dependency" might be informed by whether or not the grandchild was, at some time, "a member of the household" of the deceased, but proof of membership of the deceased's household is not enough. What is required is proof of a relationship of dependency. 5. In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to a class of persons actually in receipt of financial assistance from the deceased. Section 57(1)(e) is wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his or her maintenance and support: Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [52]; Re Estate Bohar; Bockos v Bohar [2021] NSWSC 1177. 6. A common form of dependence is financial, but the concept of "dependency" in section 57(1)(e) is not confined to financial dependency: Petrohilos v Hunter (1991) 25 NSWLR 343 at 346B. On the other hand, emotional dependency is generally not, of itself, sufficient to establish a relationship of dependency: Skinner v Frappell [2008] NSWCA 296 that [85]. 7. The expression "partly dependent" in section 57(1)(e) is elastic in meaning; in its context, it does not necessarily mean "substantially"; rather, it suggests the meaning of "more than minimally" or, perhaps "significantly": McKenzie v Baddeley [1991] NSWCA 197 at page 4 (lines 7-12). Trivial activities should be disregarded even if they literally come within a statement of principles about what constitutes dependency: McKenzie v Baddeley at page 6, lines 15-20. A person may be dependent on another for support if the former, in fact depends on the latter for support even though he or she does not need to do so and could have provided some or all of his or her necessities from another source. It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters: McKenzie v Baddeley at pages 5-6. 8. Throughout at least the first half of his life, the plaintiff was, in my opinion, emotionally dependent upon the deceased as an available, senior male figure in his life. That, as an infant, he may have been cared for by his paternal grandmother more often than by the deceased personally is not to the point. In his early years, he lived next door to his grandparents; his father, the defendant, was more than fully engaged in his medical practice; his mother was absorbed in the study of law; and his parents' marriage was experiencing terminal difficulties. When he descended into drugs as a teenager, the deceased initiated his involvement in a rehabilitation programme in Adelaide. When he needed accommodation, the deceased allowed him to occupy a home unit owned by him. When he lived in fear of intruders in his first home (as he described it), the deceased installed bars on the windows to protect him from intruders. 9. Neither the fact that the plaintiff has always fallen short of drug rehabilitation nor the fact that the deceased more or less disowned him at one time or another, on account of his drug addiction alters the fact of the plaintiff's emotional dependency upon the deceased or the support given to the plaintiff. 10. The plaintiff's dependency on the deceased was largely, but not entirely, emotional. In evidence corroborated by his early childhood friend, Brett Munro, the plaintiff spoke of having his own room set aside in his grandparent's house and of his regular weekend visits there, sometimes with Brett Munro. He also spoke of financial assistance provided to him by the deceased in their trip to Adelaide, and the deceased's provision to him of accommodation, albeit of limited duration and subject at one time to payment of rent. The plaintiff says (and I accept) that the deceased told him that he would refund the rent to him at a later time, treating it as a means of forced saving. As events transpired, I infer, the plaintiff did not stay long enough for this scheme to have any practical operation. 11. Much of the plaintiff's evidence about his relationship of dependency with the deceased has been controverted by the defendant, who points to his own consistent, strong support for the plaintiff (and the support of the plaintiff's mother) throughout the plaintiff's early life, and beyond. He says, for example, that, although the deceased paid for the plaintiff's trip to Adelaide, he reimbursed the deceased. The plaintiff believes his father reimbursed the deceased as an expression of guilt for not himself taking his son to Adelaide. The defendant emphatically denies any sense of guilt and maintains that he was the moving force for the Adelaide trip (which, as he recalls it, was made by the plaintiff only without the company of the deceased). The plaintiff is adamant that the deceased flew with him to Adelaide, returned alone to Sydney, and met him at the airport when he returned to Sydney a month or so later after a diversionary trip to see his mother in Darwin. 12. Much of the defendant's evidence about the plaintiff's relationship with the deceased is directed to a rejection of the plaintiff's oft-stated belief that the defendant was not only an absent father but also a mean spirited one, especially after his remarriage and the birth of children by his second wife. I do not share the plaintiff's overly critical view of his father. I do accept that the defendant made arrangements from time to time for the plaintiff's care as an infant or young person, but the fact remains that the defendant habitually worked long hours that rendered him remote from his son. 13. I do not, for my part, regard these proceedings as a suitable vehicle to adjudicate on the nature and quality of the relationship between the plaintiff and the defendant save in so far as their strained relationship (whatever its origins) provides insight into the relationship between the plaintiff and the deceased. 14. The defendant doubts the plaintiff's evidence of an ongoing relationship with the deceased because, he says, he enjoyed a close relationship with the deceased (before 2007) and, had the deceased had contact with the plaintiff, the deceased would have informed him of the fact, which he did not. 15. There is an element of speculation about this. From his perception of his relationship with the deceased, the defendant invites the Court to draw an inference about what did, or did not, happen as between the plaintiff and the deceased. In light of tensions within the Gooley family, I am not persuaded to prefer this indirect evidence about the deceased's conduct over the plaintiff's direct evidence of the conduct of the deceased. The deceased may well have had contact with the plaintiff which, in prudence, he did not report to the defendant. 16. In my opinion, evidence of the relationship between the plaintiff and the deceased is sufficient to establish a relationship of dependency, with something more than merely an ordinary relationship between a grandparent and a grandchild. The plaintiff looked to the deceased as a surrogate father and, in my assessment, whatever misgivings the deceased would undoubtedly have had about the plaintiff's drug addition, he did not ever entirely dismiss the plaintiff as unworthy or undeserving. I accept the plaintiff's evidence that, even as an adult, he remained in contact with the deceased. 17. However, I do not intend, by these findings, to embrace the plaintiff's jaundiced view of his father, informed as it is by a perception blurred by the experience of a broken family, by a drug habit, by a strong sense of rejection by his father and by envy of his father's second family. 18. Although the defendant contends that there is no evidence that the deceased treated the plaintiff as other than one of 11 grandchildren, there is no evidence of the deceased's relationships with the deceased's other grandchildren, beyond the defendant's evidence that the deceased did not support his children other than the plaintiff, directly or indirectly. What we know, from the evidence, is that, because of the course of the plaintiff's life and his early proximity to the deceased's household, he was afforded special treatment "FACTORS WARRANTING": SUCCESSION ACT, SECTION 59(1)(b) 1. In addition to proof that he had a relationship of dependency vis-à-vis the deceased, the plaintiff must establish a separate but perhaps overlapping requirement, under section 59(1)(b) of the Succession Act, that "having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of [his] application for a family provision order". 2. Commonly, "factors warranting" are taken to be factors which, when added to facts which render the plaintiff an eligible person, give him or her the status of s person who would be generally regarded as a natural object of testamentary recognition by the deceased: Re Fulop Deceased (1987) 8 NSWLR 679 at 681; Churton v Christian (1988) 13 NSWLR 241. 3. In the course of presentation of his case, the plaintiff imagined that he should receive from the estate of the deceased a legacy sufficient to acquire a residence of his own, with financial support beyond that. 4. That was utterly unrealistic and, in my assessment, a reflection of the plaintiff's drug-fuelled envy of the material success of the defendant's second family. 5. What marks out this case as possessed of "factors which warrant the making" of the plaintiff's application for a family provision order is his relationship with the deceased, coupled with his poverty and the need for assistance in escaping the drug culture which has blighted his life since his teens. Otherwise than those times when he exhausted the deceased's patience, the deceased recognised him as a grandchild in need of special assistance. That need continues despite the death of the deceased. 6. I am satisfied, for the purpose of section 59(1)(b) of the Succession Act, that there are factors which warrant the making of the plaintiff's application. (IN)ADEQUACY OF PROVISION: SUCCESSION ACT, SECTIONS 59(1)(c) AND 60 1. To succeed on his application for a family provision order, the plaintiff must satisfy the Court that, at the time when the Court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made by the will of the deceased: section 59(1)(c). 2. The concepts of "adequate" and "proper" embedded in section 59(1)(c) must be understood as relative to the facts of the particular case: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19. As generally understood, "adequate" is a word concerned with quantum whereas "proper" is a word directed to a standard of maintenance, education and advancement in life. Both words focus attention on the circumstances of the particular case, viewed from the perspective of the deceased and contemporary community standards. 3. Upon a consideration of section 59(1)(c), and upon an exercise of the power for which section 59(2) of the Succession Act provides, the Court must generally endeavour to place itself in the position of the deceased, and to consider what he or she ought to have done in all the circumstances of the case, in light of facts now known, treating him or her as wise and just rather than fond and foolish (In re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 479; Scales Case (1962) 107 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and generally consulting the specific statutory criteria referred to in section 60(2) of the Succession Act so far as they may be material: Bassett v Bassett [2021] NSWCA 320 at [171]. 4. The deceased's will made no provision for the plaintiff despite his special relationship with the plaintiff and the plaintiff's continuing, special need for assistance. It was, as the defendant contends, predicated upon an assumption that each of the deceased's children would provide for their own children. 5. In my opinion, the fact that the deceased made no testamentary provision for the plaintiff is, in light of all the circumstances of the case, sufficient to establish, for the purpose of section 59(1)(c), that the plaintiff has been left without adequate provision for his proper maintenance, education or advancement in life by the will of the deceased. 6. The deceased's assumption that the defendant would look after the plaintiff has been displaced (through no fault on the part of the defendant) because of the corrosive effect of the plaintiff's drug addiction on the relationship between father and son, limiting opportunities for practical assistance to be given by the father to the son. The deceased left the plaintiff without protection from that eventuality. PROPER ORDER - "OUGHT" PROVISION FOR THE PLAINTIFF BE ORDERED OUT OF THE ESTATE OF THE DECEASED?: SUCCESSION ACT, SECTIONS 59(2) AND 60 1. If the Court is satisfied that the plaintiff is an "eligible person" (sections 57(1)(e), 59(1)(a) and 60), that there are "factors warranting" the making of his application (section 59(1)(b)) and that he has been left "without adequate provision" (sections 59(1)(c) and 60), section 59(2) mandates the next step for consideration. It provides that the Court may make "such order for provision out of the estate … of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life" of the plaintiff, having regard to the facts known to the Court at the time the order is made. 2. This step in reasoning towards the making of a family provision order is, perhaps, the most troublesome after recognition that the plaintiff had a relationship of dependency sufficient to attract the operation of section 57(1)(e) of the Succession Act. 3. Tackling it requires the Court to stand in the shoes of the deceased, mustering a sense of wisdom, justice and community standards, having regard to all the circumstances of the case bearing upon the decision to be made. 4. At this point, the Court is bound to confront the dilemma confronted by each of the plaintiff's parents and the deceased in dealing with the plaintiff as a family member who is caught in a drug culture from which he has not (yet) mustered a personal resolve to escape but who, lacking insight, constantly appeals for assistance beyond his capacity to manage. 5. In my opinion, the defendant's response to this dilemma is on the right track but not appropriately structured or measured to persuade the plaintiff to aim for sobriety. Hard and uncaring as it might seem to the plaintiff in the haze of drugs that envelopes his judgement, he should be encouraged to commit himself to a course of drug rehabilitation and given sufficient means to do so without the temptation of an entitlement to resources beyond that necessary to achieve sobriety. 6. In my assessment, the defendant's offers of a funded rehabilitation programme for the plaintiff suffer from two impediments. First and foremost, the plaintiff himself has yet to form a fixed resolve to rehabilitate himself. Secondly, he is unlikely to submit to an effective rehabilitation programme which he perceives to have been imposed upon him by the defendant and to be unaccompanied by material support following completion of the programme. Whether these impediments can be overcome remains a challenge. 7. In a perfect world, the defendant would probably be the best person to supervise the plaintiff's participation in any process of drug rehabilitation. He is a medical practitioner with long experience in the field. 8. However, for reasons which reflect no discredit upon him, he is not well suited for this task. Whatever the merits of past disputation, tensions between father and son have diminished the defendant's capacity to communicate the message of "tough love" which is foundational to his offers of a funded rehabilitation programme. For this reason, I have considered, but put aside, the possibility that family provision relief granted to the plaintiff might take the form, directly, of orders expressly conditioned upon submission by the plaintiff to participation in a rehabilitation programme nominated by the defendant. 9. The fact that (as I find) the plaintiff, by reason of his disability as a drug addict, is incapable of managing any large amount of provision made for him offers an opportunity for his affairs to be managed upon an exercise of protective jurisdiction. In the course of a protective management regime directions can be given for funds to be set aside for the plaintiff's participation in a process of rehabilitation, independent of the defendant, with other funds available to provide material support generally. This is something the plaintiff insists he wants. He has, for his part, consented to orders for his affairs to be managed by the NSW Trustee. I propose, in these circumstances, to make orders under the NSW Trustee and Guardian Act 2009 NSW affecting the plaintiff. 10. A management order made under section 41 of that Act is generally made in respect of an incapable person's whole estate. However, as section 40 of the Act confirms, the Court can, in an appropriate case, limit the operation of a management order to part only of an estate. In the circumstances of this case, I propose to make a management order affecting only so much of the plaintiff's estate as comprises provision made for him in these proceedings under Chapter 3 of the Succession Act. That will permit him to manage his own affairs generally, focusing attention of the NSW Trustee on the particular managed estate. 11. Acting upon the defendant's proposal that the plaintiff submit to a rehabilitation programme that might cost as much as $130,000, and cognisant of a need for the plaintiff to have material support consequent upon participation in such a programme, I propose to make orders for a grant of family provision in favour of the plaintiff in the sum of $250,000 on terms that require that amount to be managed by the NSW Trustee, to which directions can be given for the setting aside, and management, of a fund dedicated to the plaintiff's rehabilitation. I have in mind that that fund will comprise an amount of $130,000, leaving $120,000 for the plaintiff's general maintenance, education or advancement in life, charged with payment of the NSW Trustee's fees. 12. If he establishes his sobriety, he can, as he may be advised, apply (under s 86 of the NSW Trustee and Guardian Act 2009 NSW or the inherent jurisdiction of the Court) for a declaration that he is capable of managing his own affairs and an order that the management orders affecting him be discharged. CONCLUSION 1. Accordingly, subject to allowing the parties an opportunity to make submissions about the form of the orders to be made, I propose to make orders to the following effect: 1. ORDER, pursuant to section 58(2) of the Succession Act 2006 NSW, that the time for the plaintiff to make an application for a family provision order in respect of the estate of the late Melville William Gooley ("the deceased") be extended up to and including 28 June 2021. 2. ORDER, pursuant to section 59(2) of the Succession Act 2006, that provision be made for the plaintiff out of the estate of the deceased in the form of a legacy in the sum of $250,000. 3. ORDER that interest accrue on the legacy (at the rate for which section 84A of the Probate and Administration Act 1898 NSW provides) from the date 28 days after the making of these orders, if not earlier paid. 4. ORDER that the legacy be paid to the NSW Trustee as the plaintiff's financial manager under the NSW Trustee and Guardian Act 2009 NSW. 5. ORDER that the burden of the legacy payable to the plaintiff, and the costs of these proceedings, be borne by the residuary estate of the deceased, rateably as between the residuary beneficiaries. 6. ORDER that the plaintiff's costs of the proceedings (if any) be paid out of the estate of the deceased on the ordinary basis. 7. ORDER that the defendant's costs of the proceedings be paid out of the estate of the deceased on the indemnity basis. 8. ORDER that any requirement for the plaintiff to be represented in these proceedings by a tutor be dispensed with. 9. DECLARE, pursuant to section 41(1)(a) of the NSW Trustee and Guardian Act 2009, that the defendant is incapable of managing his affairs. 10. ORDER, pursuant to sections 40 and 41(1)(a) of the NSW Trustee and Guardian Act, that the estate of the defendant be subject to management under the Act, limited to management of the monies paid to the plaintiff from the estate of the deceased, pursuant to these orders. 11. ORDER that management of that part of the estate of the plaintiff subject to management under the NSW Trustee and Guardian Act be committed to the NSW Trustee. 12. ORDER (pursuant to section 61 of the NSW Trustee and Guardian Act), subject to further order, that, in management of that part of the estate of the plaintiff under management under the Act, the NSW Trustee: 1. set aside a fund ("the rehabilitation fund") of $130,000, including any interest accrued thereon, for the purpose of payment of the costs of any drug rehabilitation programme in which, with the approval of the NSW Trustee, the plaintiff may be admitted and any ancillary costs. 2. not use the rehabilitation fund for any other purpose without the leave of the Court. 3. use its best endeavours to consult with each of the parents of the plaintiff, as well as the plaintiff, in granting to the plaintiff approval to participate in a drug rehabilitation programme. 1. RESERVE to all interested persons (including the plaintiff, his parents and the NSW Trustee) liberty to apply for directions regarding management of the rehabilitation fund. 2. RESERVE liberty to apply generally in the working out of these orders. 1. I invite the plaintiff, before these or other orders are made in disposition of his summons, to obtain independent legal advice or, at least, to consult with his mother in case there are submissions which ought to be made about the form or effect of my proposed orders. 2. I do not intend, by the proposed orders, to impose on the NSW Trustee a pro-active obligation to enrol the plaintiff in a drug rehabilitation programme. The initiative for his entry into such a programme must come from him or others (including, in particular, his parents) who have his best interests at heart. 3. Nor do I intend, by the proposed orders, to impose upon the plaintiff a legal obligation to participate in a drug rehabilitation programme. That remains a matter of choice for him. He needs to make a personal commitment to his rehabilitation if it is to work. The intent of the orders is to provide for him, as he has more than once maintained is necessary, a fund to facilitate his participation in a drug rehabilitation programme with financial support beyond any cost of the programme. 4. In my assessment, an order for family provision of that nature, and that measure, is both justified and appropriate: viewing the case from the perspective of the deceased, attributing to him wisdom, a sense of justice and an appreciation of current community standards of what would be an appropriate outcome for disposition of the plaintiff's claim in the context of an estate well able to bear the burden of a family provision order. 5. In formulating the proposed orders, I have not taken into account the implications (if any) of the proposed family provision orders for the plaintiff's public housing arrangements and his disability pension. He should take his own advice about that. 6. I expect that, in the ordinary course, the NSW Trustee will prepare, in consultation with the plaintiff, a plan for management of that part of his estate under management. My intention, in limiting management of the plaintiff's estate to part only of the estate, is to allow him personally to manage his pension and property other than the provision to be made for him from the deceased's estate. ADDENDUM (21 June 2022) 1. After allowing the parties, and M, an opportunity to be heard about the orders to be made to give effect to these reasons for judgment, on 21 June 2022 I made the following orders: 1. ORDER, pursuant to section 58(2) of the Succession Act 2006 NSW, that the time for the plaintiff to make an application for a family provision order in respect of the estate of the late Melville William Gooley ("the deceased") be extended up to and including 28 June 2021. 2. ORDER, pursuant to section 59(2) of the Succession Act 2006, that provision be made for the plaintiff out of the estate of the deceased in the form of a legacy in the sum of $250,000. 3. ORDER that interest accrue on the legacy (at the rate for which section 84A of the Probate and Administration Act 1898 NSW provides) from the date 28 days after the making of these orders, if not earlier paid. 4. ORDER that the legacy be paid to the NSW Trustee as the plaintiff's financial manager under the NSW Trustee and Guardian Act 2009 NSW. 5. ORDER that the burden of the legacy payable to the plaintiff, and the costs of these proceedings, be borne by the residuary estate of the deceased, rateably as between the residuary beneficiaries. 6. ORDER that the plaintiff's costs of the proceedings (if any) be paid out of the estate of the deceased on the ordinary basis. 7. ORDER that the defendant's costs of the proceedings be paid out of the estate of the deceased on the indemnity basis. 8. ORDER that any requirement for the plaintiff to be represented in these proceedings by a tutor be dispensed with. 9. DECLARE, pursuant to section 41(1)(a) of the NSW Trustee and Guardian Act 2009, that the defendant is incapable of managing his affairs. 10. ORDER, pursuant to sections 40 and 41(1)(a) of the NSW Trustee and Guardian Act, that the estate of the defendant be subject to management under the Act, limited to management of the monies paid to the plaintiff from the estate of the deceased, pursuant to these orders. 11. ORDER that management of that part of the estate of the plaintiff subject to management under the NSW Trustee and Guardian Act be committed to the NSW Trustee. 12. ORDER (pursuant to section 61 of the NSW Trustee and Guardian Act), subject to further order, that, in management of that part of the estate of the plaintiff under management under the Act, the NSW Trustee: 1. set aside a fund ("the rehabilitation fund") of $130,000, including any interest accrued thereon, for the purpose of payment of the costs of any drug rehabilitation programme in which, with the approval of the NSW Trustee, the plaintiff may be admitted and any ancillary costs. 2. not use the rehabilitation fund for any other purpose without the leave of the Court. 3. use its best endeavours to consult with each of the parents of the plaintiff, as well as the plaintiff, in granting to the plaintiff approval to participate in a drug rehabilitation programme. 1. ORDER that, subject to further order, the NSW Trustee report to each of the parents of the plaintiff as to the balance of each of: 1. the fund of $120,000; and 2. the rehabilitation fund, 3. on a quarterly basis. 1. RESERVE to all interested persons (including the plaintiff, his parents and the NSW Trustee) liberty to apply for directions regarding management of the estate of the plaintiff under protective management, including but not limited to the rehabilitation fund. 2. RESERVE liberty to apply generally in the working out of these orders 3. ORDER that these orders be entered forthwith. 1. Order 13, as made, was made at the request of the defendant in order to enable the plaintiff's parents to monitor the balance and use of the two funds under the protective management of the NSW Trustee. I adopt here the defendant's rationale for his request. 2. If the reporting by the NSW Trustee indicates that the rehabilitation fund is not being utilised, but the amount of $120,000 (intended to support the plaintiff post-rehabilitation) appears at risk of dissipation prior to participation in rehabilitation, then the parents may exercise their liberty to apply for directions regarding the management of the fund on an informed basis. 3. Similarly, it is possible that the rehabilitation fund may not be used at all. The reporting process will allow the parents to make an application to the Court if that unfortunate eventuality transpires. 4. Order 14, as made, is an adaption of draft order 13 designed to accommodate order 13 as made. 5. The name of the plaintiff's mother has been redacted (and replaced by the pseudonym "M") at her request. The object of the redaction is to facilitate co-operation between the plaintiff and his parents in the process of encouraging the plaintiff to embrace a programme of rehabilitation without delay. 6. A copy of the Court's orders, together with these supporting reasons for judgment, will be provided to the NSW Trustee by the Court on notice to the parties and the plaintiff's mother. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2022