COOK v COOK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER and HANDLEY JJA 14 October 1997, 14 October 1997 [1997] NSWCA 79 FAMILY PROVISION — adult daughters — parents divorced — no relationship with father — orders made The appellants were the adult daughters of the deceased. He made no provision for them in his will leaving the whole of his estate worth approximately $622,000 to his only son, the respondent executor. Their mother left the matrimonial home in 1962 with the daughters and entered into an adulterous relationship. This put an end to the father's relationship with the older daughter and prevented him forming a relationship with the younger. There had been several attempts by the older daughter and her father to re-establish their relationship but these proved unsuccessful largely because of the father's conduct. The Master dismissed the daughters' claims for provision from the estate. HELD: Neither party has been totally responsible for the breakdown of the relationship between the father and the elder daughter, or for the absence of any relationship with the younger daughter. The testator should have made provision for the daughters in his will, providing more for the younger, as she was in greater need. The Master was in error in dismissing their claims. The appeals were allowed and orders made in favour of the daughters. Handley JA Ex tempore This is an appeal by two adult daughters from a decision of Master McLaughlin who dismissed their claims for provision out of their father's estate under the Family Provision Act. Their father died on 17 November 1994 aged 82. He left a will made in September 1994 in which he appointed his son, Geoffrey, sole executor and left him substantially the whole of his estate. There were some modest pecuniary and specific legacies which can be disregarded for present purposes. The appellants and the defendant are the only children of the deceased. He married once in February 1945. He and his wife separated in December 1962 when she left the matrimonial home, taking with her the appellant, Rozlyn, who was then approximately 14, and the appellant, Susan, who was then approximately 18 months old. The defendant was then 16. The nett estate for present purposes was valued at some $622,619. The evidence discloses that the deceased had some doubts, to say the least, as to whether the appellant Susan was his daughter. However, she was born while her parents were living together in marriage and she must be treated for legal purposes as a daughter of the deceased. The deceased commenced divorce proceedings in 1963 shortly after his wife left the matrimonial home. They were heard by Begg J in 1968 who found that the wife had committed adultery with the co-respondent in December 1962 and January 1963. The wife did not claim maintenance for herself and her claim for a settlement of property was dismissed because of her matrimonial misconduct. From the time of the separation in December 1962 until the father's death, there was practically no contact between the father and his daughters. As the Master recognised, the daughters might be excused for not initiating contact with 2 UNREPORTED JUDGMENTS their father while they were underage. However, there were occasions when, by chance or by deliberate action, there was some communication between Rozlyn and her father. The Master made findings as to the financial position of the daughters which have not been disputed. Rozlyn has some assets. She has been living in a stable de facto relationship since 1971. She has a permanent part time job with the Taxation Department and in those respects is reasonably situated. However, if anything were to happen to her relationship with her de facto partner, Mr Steel, her position would become marginal at best. Susan's position is not good at all. She has practically no assets. She lives in a one-bedroom rented unit. She has a permanent job with the Manly - Warringah Council and is fortunate in that respect. However, as I said, she has no capital, she does not own the flat in which she lives and has very few resources to fall back on should she experience poor health or lose her job. At the time of hearing the son, Geoffrey, was in comfortable circumstances. He had a well paid managerial position with Melocco Pty Limited, although that position was coming to an end in the near future. There is no need for me to go into the details, it is sufficient to note that his financial position imposed no obstacle to the court making any order in favour of his sisters that might conceivably be made. In proceedings of this nature evidence of events, which have occurred after trial, is readily received under s75A of the Supreme Court Act. Evidence has not been put before the Court to establish that Geoffrey did not obtain further employment after his position with Melocco Pty Ltd came to an end. The Court's duty under the Family Provision Act is to make proper provision for an eligible person where the deceased failed to do so. It is not necessary to restate the principles which the Court applies in considering claims of this kind. The Court endeavours to reflect contemporary standards in deciding what provision should have been made and ought now be made out of an estate for the benefit of persons standing in a sufficiently close relationship with the deceased. In this case the relationship is that of father and daughter. The relationship between the deceased and Rozlyn was well established when the parents separated in 1962 when Rozlyn was 14. The relationship at that time was a happy and normal one between father and daughter. The deceased continued to take an interest in Rozlyn, he followed her when she went to school and attempted to see her at school and on her school sports days. This interest was not welcome to Rozlyn and the nuns at her school attempted to shield her from it. Contact of this kind, however remote and indirect, eventually ceased. Rozlyn gave evidence of accidentally meeting her father on a bus some time during the 1960s, probably before the divorce, when he yelled at her and described her mother as a whore. Later, and again before the divorce it would seem, she saw her father on a number of occasions at Crows Nest but he did not approach her. Some time in about 1970, the deceased left a letter addressed to Rozlyn in her car. She had some difficulty in understanding it and did not reply. The letter is not in evidence. Rozlyn recalls further criticism of her mother in that letter. Contact then came to an end until the death of her mother in December 1988. Rozlyn telephoned her father and told him about her mother's death and the funeral arrangements. The father and Geoffrey attended the funeral and Rozlyn spoke to her father. The conversation did not end on a happy note because of further critical comments by the deceased about his former wife. URJ COOK v COOK (Handley JA) 3 Later that year Rozlyn and her father accidentally met at Chatswood Chase. Rozlyn went over to her father and spoke to him in a friendly way and they arranged to meet again. Rozlyn kept the appointment and that meeting seems to have ended without mishap. However, a further meeting ended disastrously for the relationship as a result of the deceased criticising his former wife and calling her a prostitute. Unsurprisingly, this upset Rozlyn who ran away from him crying. Some weeks later he rang up and asked whether she was avoiding him. She said she was. He said he would not bother her again. However, he wrote a conciliatory letter to her in March 1989. It concluded with the statement that he did not expect any response but it is evident - at least it is evident to me - that he was hoping against hope that there would be a response. There was none. There was no further contact, accidental or otherwise, spoken or written, in the father's lifetime. It appears from evidence - particularly evidence of Geoffrey but also from documents that the deceased left to record his reasons for making the will he did - that he did take a remote interest in Susan, asked questions of Geoffrey about her and was in contact with her school. He also arranged for a Catholic priest to visit the home in which his wife was living with the two girls, to give Susan instruction in the Catholic religion. However, as Susan said in her affidavit, rather eloquently, he never sent her any Christmas or birthday cards or gave her any presents on such occasions. The relationship from his side was therefore impersonal and remote. Susan met her father once when he came to the front door of the flat in Crows Nest where she was living with her mother and left a photograph and a scarf. That seems to have been the full extent of any personal contact until the mother's funeral. Susan avoided her father at the funeral and he was not able to see her face. If the attempts to establish a relationship with Rozlyn had worked out in a more satisfactory way, Susan may then have been able to initiate a relationship with him. However, that was not to be. Both girls said that they had a fear of their father. This may have been to some extent irrational but they cannot be blamed for that during their childhood and adolescent years. There seems no reason to doubt the genuineness of this fear. It was so great that Susan could not bring herself even to be in the same room as her flatmate when she was ringing to find out Geoffrey's phone number so that her father could be told about the death of the mother and the funeral arrangements. The Court therefore is confronted with a situation where the mother's decision to break up the marriage, take the two girls from the matrimonial home and start an adulterous relationship with the co-respondent - in the language of the 1960s - gravely damaged the relationship between Rozlyn and her father, and in Susan's case prevented a relationship with her father coming into existence. However the father himself was not free from blame. He behaved in an insensitive and inappropriate way whenever he met Rozlyn until after the mother's death. Initial meetings in 1989 showed some promise of a reasonable relationship developing but the last meeting ended in disaster and Rozlyn gave up. In my judgment neither woman can be treated as responsible for the absence of any real relationship with their father, in the sense of being wholly responsible for that state of affairs. Perhaps they might have done more; equally, however, the 4 UNREPORTED JUDGMENTS deceased was not free from blame and responsibility for the absence of any meaningful and normal father/daughter relationship between himself and the two appellants. When, towards the end of his life, the deceased sat down to dispose of his estate of just under $660,000, he ought to have appreciated the extent to which his daughters had suffered personally and financially as a result of the break-up of the marriage and as a result of his inappropriate and insensitive conduct towards Rozlyn. The daughters were not entirely free from blame. Perhaps they should have gone the second mile - but he was not entirely free from blame, and he should have been prepared to do more, and to do it in an appropriate and sensitive way. In that situation he should, in my judgment, have made some meaningful provision for both of his daughters. The provision which is appropriate in the case of Rozlyn was less than the provision which, in my view, he should have made for Susan, not because of anything personal to Rozlyn, but simply because she is so much better off financially than Susan. Although Susan is in a stable employment situation with the Council, she really has nothing to fall back on if any of life's vicissitudes should come her way. There is no question of giving them equal provision with Geoffrey, who stood by his father and who maintained through thick and thin a relationship with him, although his loyalty was not fully appreciated by his father as the surviving documents demonstrate. In the circumstances, I would propose the following orders in each case. Appeal allowed and the decision of Master McLaughlin set aside. In lieu thereof order that there be paid to Rozlyn a legacy of $80,000, and in the case of Susan, an order that she be paid $120,000, such legacies not to carry interest if paid within 28 days. The appellants are to have their costs of the appeal and of the proceedings in the Equity Division. The respondent is to have his costs, of the proceedings at first instance and on the appeal, on an indemnity basis out of the estate and if qualified is to have a certificate under the Suitors Fund Act in respect of the cost of the appeal. Mason P IJ agree. Meagher JA I also agree. Mason P The orders of the Court will be as proposed by Handley JA. The appeals were allowed and orders made in favour of the daughters. Counsel for the appellant: I M Wales Solicitors for the appellant: Craddock Murray & Neumann Counsel for the respondent: I D Ferguson (Sol) Solicitors for the respondent: I D Ferguson