New South Wales Supreme Court CITATION : Hyland v Burbidge [2000] NSWSC 12 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1687 of 1993 HEARING DATE(S) : 30 November 1999, 1, 2, 3, 7, and 8 December 1999 JUDGMENT DATE : 2 February 2000 Alexandra Larissa Kaitha Hyland (First Plaintiff) Christian Ludlow Hyland (Second Plaintiff) Lisa Ludlow Hyland (Third Plaintiff) Richard John Burbidge (First Defendant) Panker Nominees Pty Limited (Fourth Defendant) PARTIES : Hartigan Nominees Pty Limited (Fifth Defendant) The Armidale School Foundation Limited (Sixth Defendant) Anne Chi Quang (Seventh Defendant) Charles Lap Hyland (Eighth Defendant) Gartner Foundation (Ninth Defendant) Cura Treinstitut (Tenth Defendant) Edward Robert Hyland Kavalee (Eleventh Defendant) JUDGMENT OF : Windeyer J at 1 Mr. N. Hutley SC with him Mrs D Stewart (Plaintiffs) COUNSEL : Mr R.W. White SC with him Mr G.A. Seib (First and Seventh Defendants) Mr P.L. Brereton SC with him Mr. D. Stack (Fifth Defendant) Mr D. Officer QC with him Mr. R. Darke (Eleventh Defendant) Gadens (Plaintiffs) SOLICITORS : Hickson Wisewoulds (First and Seventh Defendants) Stacks - The Law Firm (Fifth Defendant) Connery & Partners (Eleventh Defendant) CATCHWORDS : TESTATORS FAMILY MAINTENANCE - application of illegitimate child - parentage not disputed - extent of duty to provide maintenance - no contact between parent and child - no fault of child - provision out of notional estate - very substantial assets available for designation - no competing interest - assessment of needs - Family Provision Act 1982 (NSW) - Status of Children Act 1996 (NSW) - TESTATORS FAMILY MAINTENANCE - application of widow - separate lives for 27 years and short period together - little contact and no support - widow undertook entire responsibility for two children - provision out of notional estate - very substantial assets available for designation - no competing interest - relevant matters for consideration - Family Provision Act 1982 (NSW) - TESTATORS FAMILY MAINTENANCE - application of two children - both able bodied adults with reasonable incomes - no contact with deceased and negligible support - difficult early life - provision out of notional estate - very substantial assets available for designation - no competing interest - provision made by Foundation expended largely on pursuit of claims - assessment of needs - Family Provision Act 1982 (NSW) LEGISLATION CITED : Children (Equality of Status) Act 1976 (now Status of Children Act 1996) Family Provision Act 1982 (NSW) Gorton v Parks (1989) 17 NSWLR 1 Hughes v National Trustees, Executors and Agency Co of Australasia Limited (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Permanent Trustee Company Ltd v Fraser (1995) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 CASES CITED : Re Adams [1967] VR 881 Re Cutts [1969] VR 254 Re H J Mayo, deceased [1968] 2 NSWR 709 Re Wade [1946] SASR 131 Re Wren, deceased [1970] VR 449. Walker v Walker (Young J, unreported, 17 May 1996) DECISION : 42 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J WEDNESDAY 2ND FEBRUARY 2000 1687/93 ALEXANDRA LARISSA KAITHA HYLAND & ORS v RICHARD JOHN BURBIDGE & ORS JUDGMENT 1 This judgment answers all questions which remain to be answered from those directed to be tried as issues in proceedings No. 1687 of 1993. On 24 March 1993, Powell J settled the list of questions to be determined. The answers to those questions will decide what orders should be made, not only in this present action but also in the following actions, which are all claims for provision from the estate or notional estate of Charles Keith Hyland deceased, who died on 16 April 1989: 4600 of 1989 - claim of Edward Kavalee 1442 of 1990 - claim of Lisa Ludlow Hyland (Mrs Ludlow Hyland) 4855 of 1990 - claim of Charles Christian Ludlow Hyland (Christian) 4856 of 1990 - claim of Alexandria Larissa Kaitha Hyland (Larissa) 4236 of 1993 - claim of Anne Chi Quang 2 As these actions will be determined by this judgment a copy of the judgment will be placed in each of those files. The proceedings in which this judgment is given were brought as administration proceedings in view of the many difficult questions that arose in the administration of this estate. Preliminary Facts 3 The deceased left a will, dated 27 March 1987, under which he appointed Mr Richard Burbidge as executor and trustee and under which he gave all his estate to his trustee to hold upon trust for Anne Chi Quang absolutely. Probate was granted on 29 August 1989. The actual estate was very small, amounting to about $88,000.00. Apart from some payments made to Edward Kavalee under an order for interim provision, the whole of the monies appear to have been expended on costs to date, which is not surprising in view of the difficulties in this litigation. In fact, apart from about $10.00 the executor has held no assets since 1993. 4 In proceedings before me in respect of which judgment was given on 1 September 1995, and later subject to judgment on 21 October 1997 before the Court of Appeal, some of the questions posed by Powell J were answered. The deceased in 1972 had commenced a series of transactions pursuant to which nearly all his assets became held by the Gartner Foundation by means of a stiftung set up in the Principality of Liechtenstein. The first question decided by me was whether the assets held by the Gartner Foundation were assets forming part of the actual estate of the deceased. I held that they were not. The argument put forward by those claiming that these assets were part of the actual estate was that the purported transactions were a sham and that the assets transferred remained the property of the deceased. This claim failed and I held that the assets of the Gartner Foundation were not assets of the deceased. There was no appeal from that finding. The other substantive question was whether the deceased entered into any prescribed transaction within the meaning of s22 of the Family Provision Act 1982. If so, there was a further question of what assets held by or on behalf of the Gartner Foundation were liable to be designated as notional estate for the purposes of s23 of the Family Provision Act. I held that there was no prescribed transaction. On appeal the Court of Appeal reversed this decision: (1998) 43 NSWLR 422. So far as is relevant here, the court held that the deceased did enter into a prescribed transaction by failing to exercise the power to dispose of property which was vested in the Gartner Foundation, and that the whole of the assets of the Gartner Foundation were liable to be designated as notional estate. The court noted that its decision did not preclude an argument being raised in the future that the assets of the Foundation, available to be so designated, were limited to assets in New South Wales. This argument is now irrelevant in view of the value of the assets held for the Foundation in New South Wales. The Court of Appeal also held that assets of the Foundation which had been distributed in accordance with the memorandum of wishes signed by the deceased were also liable to be designated as notional estate. Distributions have in fact been made in accordance with that memorandum to Larissa, Christian, Anne Chi Quang and The Armidale School Foundation. These distributions can be disregarded for the purposes of this decision, as it is not claimed that property should be designated as notional estate as a result of those dispositions. Once that was accepted, The Armidale School Foundation took no further part in the proceedings and to all intents and purposes neither did Ms Quang. However, the dispositions were relevant insofar as both Larissa and Christian received amounts of $150,000 from the Foundation. 5 Hartigan Nominees Pty Limited holds the assets of the Gartner Foundation which are situated in New South Wales on trust for the Foundation. Those assets are in excess of $26 million. For this reason it was accepted that question 1 of the questions raised for decision by order of Powell J did not require an answer. That question was whether the deceased was domiciled at the date of his death in Thailand or in New South Wales. With $26 million to provide for any possible claims the question became irrelevant and it will be necessary to make an order to revoke the order for determination of that question. 6 The questions remaining for determination will be answered in final orders, but can for present purposes be summarised as follows: A. Was Mrs Ludlow Hyland married to the deceased at the time of his death? B. Was the deceased the father of Edward Kavalee? C. Were either of Mrs Ludlow Hyland or Edward Kavalee eligible persons within the meaning of the Family Provision Act 1982? D. Were any of Mrs Ludlow Hyland and Edward Kavalee (if eligible persons), Larissa, and Christian left without adequate provision for their proper maintenance, education and advancement out of the estate of the deceased and if so, what provision ought to be made for them and what property should be designated as notional estate for the purpose of that provision? 7 The assets of the Gartner Foundation in New South Wales agreed to have a value of over $26 million are as follows:- Shares in Ismeme Holdings Pty Limited $12,021,130 Shares in Ismeme Pty Limited $ 5,951,588 Loans due by those companies to the Gartner Foundation $ 7,196,187 Other assets $ 1,536,539 8 Ismene Holdings Pty Limited is the holding company of Australian Feather Mills Pty Limited. The assets of Ismene Pty Limited are, for the most part, real estate properties. Parties and Representation 9 So that there is no misunderstanding I relate that the Gartner Foundation and Cura Treinstitut, the ninth and tenth defendants have been served but have not appeared, Mr Charles Lap Hyland, the eighth defendant, has had no part in the proceedings and has not been served or at least has not been proved to have been served, Parker Nominees Pty Limited has been de-registered and removed as a defendant, Ms Anne Chi Quang is the main beneficiary under the memorandum of wishes and was the sole beneficiary under the will. For this reason she has an interest in the proceedings but it seems that she was originally joined as a defendant because she had brought her own application, which was no doubt a defensive one, and also because payments had been made to her from the assets of the Foundation after the death of the deceased. 10 At the hearing Mr Officer QC and Mr Darke appeared for Edward Kavalee, Mr Hutley SC and Mrs Stewart appeared for Mrs Ludlow Hyland Larissa and Christian; Mr White S.C. and Mr Sieb appeared for Mr Burbidge, and Mr Brereton SC and Mr Stack appeared for Hartigan Nominees Pty Limited. As there was no actual estate the interest of Mr Burbidge in this aspect of the litigation was less than that of Hartigan Nominees Pty Limited. Nevertheless Mr Burbidge had a real interest in regard to the earlier questions and some proper interest in upholding the wishes of the deceased, but to some extent I limited cross-examination by the defendants when it related to the same interest. 11 Because this judgment deals only with certain questions and follows the earlier judgment I will not repeat the facts which are set out either in my earlier judgment or in the judgments in the Court of Appeal. The terms of the memorandum of wishes signed by the deceased on 5 March 1997 are of some relevance and are set out in my earlier judgment. I will not repeat them but those passages relevant here are those which refer to Mrs Ludlow Hyland, the sums of $150,000 to be paid to each of Larissa and Christian, and the directions regarding the advisers resisting any claim against the estate or Foundation by those three persons and the provision of funds for this purpose. Mr Burbidge was, of course, an adviser. General Facts 12 The deceased was born on 15 November 1914. Mrs Ludlow Hyland was born on 12 September 1939. She met the deceased in 1966 and after a somewhat whirlwind romance married him in Bangkok on 17 March 1967 in a civil ceremony at the American Embassy. The next day they had another ceremony at the Australian Embassy in Bangkok and it appears they were then married under Australian law. At the time they met, Mrs Ludlow Hyland had been in a close friendship with a Mr Renzo de la Penne who had proposed marriage to her. The meeting with the deceased brought an end to that prospect, but she and de la Penne remained friends. After their marriage Mrs Ludlow Hyland and the deceased lived between Thailand and Vietnam for some months and during this time Mrs Hyland spent some five weeks in the United States and elsewhere collecting her belongings and fulfilling other commitments which apparently annoyed the deceased. She began work as a receptionist with the United States Military Headquarters in Saigon. She says that she was busy adapting to a new life and managing three households. She found Vietnam a very dangerous place to live. On 6 February 1968 the deceased was captured by the Viet Cong and was held in captivity. Mrs Ludlow Hyland said, and I accept, that she went to considerable efforts to secure his release and to obtain assistance from influential people to try to bring that about. She came to Australia in March 1968 as she wished to be here for the birth of a child. Larissa was born in Sydney on 12 April 1968. During this time Mrs Ludlow Hyland remained in touch with the Australian External Affairs Department and was told that her husband was still alive. When she came to Sydney she lived at first in a house her husband owned in Greenoaks Avenue, Darling Point and after a relatively short time she purchased a house in Windsor Street, Paddington and moved there with her baby daughter. 13 The Viet Cong released the deceased on 26 November 1968 and Mrs Ludlow Hyland flew to Cambodia to meet him, leaving Larissa in San Diego with her family. After the meeting the deceased and his wife flew to Bangkok and subsequently it was arranged that they would go to Sydney, but separately. Mrs Ludlow Hyland went to Saigon to collect some clothes and other things for her husband and then flew to Sydney and the deceased arrived in Sydney some time in December 1968. There is no doubt that there were difficulties in the marital relationship after the deceased was released by the Viet Cong. I will return to these later. At the present time it is sufficient to relate that they met in Rome in April 1969 for a relatively short time during which Mrs Ludlow Hyland showed the deceased some of her designs which he thought might be useful for his business. In June 1969 they moved back to Saigon, a move which Mrs Ludlow Hyland did not like, as Saigon was then subject to bombing. At this time the deceased offered his wife $150,000 plus support and education for Larissa and some money to start up a business if she would agree to divorce him within twelve months. She did not agree and says that she was trying to make the marriage work again. She appreciated that her husband was under great emotional stress due to his sufferings while in captivity. She moved back to Bangkok with Larissa and the deceased visited every few weeks. Shortly thereafter she became pregnant with Christian. The deceased reacted very badly to her pregnancy saying that he did not accept the child was his and asking his wife to get an abortion for which he would pay. The deceased insisted that she be examined by doctors he chose, all of whom confirmed that it was likely that the child was his. In December 1969 Mrs Ludlow Hyland returned to Saigon with Larissa and subsequently the deceased insisted that they should go to Bangkok. He then took her passport from her apparently for the purpose of having her registered as a permanent resident in Thailand. 14 In February 1970 the deceased began proceedings for divorce in Thailand which failed, apparently because Mrs Ludlow Hyland was not domiciled there. Before this time Mrs Ludlow Hyland had seen a solicitor and obtained advice about getting a divorce. She said that this inquiry was of a defensive nature as she needed to know what her rights were in view of the erratic behaviour of the deceased. I accept this and consider that what it goes to show is that the marriage was very unstable from the time the deceased was released from captivity. Certainly statements of Mrs Ludlow Hyland to the effect that the first time she considered divorce was just prior to her commencing proceedings in Sydney were not correct. She petitioned for divorce in New South Wales. 15 Christian was born in Sydney on 12 May 1970. In August of that year the deceased came to Sydney for the divorce proceedings. He saw Christian on this occasion for the first and only time and took Larissa with him on a visit to some friends in Melbourne. He sent a bracelet and a Bible to Christian but never saw him again. In November 1970 he offered his wife $150,000 to start her own business if she would renounce all claims against him. At about this time he commenced sending $150 per month for the support of the children until February 1974, when he increased the amount to $300 per month, that amount being paid up to about the end of 1981. In 1971 the Full Court of the Supreme Court set aside the divorce granted to Mrs Ludlow Hyland on the basis that the deceased was not domiciled in New South Wales. Thus the position was that both parties had sought divorce and both had failed through want of jurisdiction. Once the efforts for a divorce failed the deceased started the work necessary to set up the Gartner Foundation and to transfer his assets outside the reach of persons who might otherwise be able to have some claim against them in the event of his death. Mrs Ludlow Hyland moved to the United States with her children and in August 1972 obtained an order for sole custody of them. She did speak to her husband from time to time and had a meeting with him in London in early 1974 to discuss the dissolution of the marriage and the welfare of the children, but nothing resulted from this. It was during this time that the payments for the children were increased from $150 to $300 per month. In 1975 Mrs Ludlow Hyland was sent a decree of divorce from the Republic of Haiti dated 7 November 1975 purporting to dissolve her marriage on the grounds of desertion and public insults and awarding custody of Larissa to the mother and custody of Christian to the father. No party suggests that this divorce, even if properly proved, would be valid in New South Wales, or as I understand it, in any other relevant country. 16 I will go into the further life of Mrs Ludlow Hyland and her children when dealing with their separate claims. At this point it is only relevant to say that Mrs Ludlow Hyland did make some effort to encourage the deceased to have contact with his children but he refused to do so. Claim of Edward Kavalee 17 The deceased met Elizabeth Macy Anne Kavalee, the mother of Edward Kavalee, some time in 1975 and he saw her regularly on his visits to Australia for some time thereafter. They spent a lot of time at Falls Creek together engaged in the building or re-building of a ski lodge. She became pregnant in 1978. This was unexpected and was late in being realised. Upon his discovery of the pregnancy the deceased expressed some concern as to whether the child was his. Nonetheless the deceased's name appears on the birth certificate of Edward as the father. Mrs Kavalee on affidavit said that the deceased was the father. There was no cross-examination or argument on this issue although for some reason paternity was not admitted. It is clear that the answer to the question as to whether or not Edward Kavalee was a child of the deceased, must be answered in the affirmative. In some ways the attitude of the executor towards this claim is a continuation of the attitude of the deceased towards this son. 18 As I have said Edward Kavalee was born on 30 June 1979. When his mother told the deceased in Bangkok in 1978 that she was pregnant to him he said, "If you go ahead and have the child you will live the rest of your life on charity." Mrs Kavalee replied, "You can't just abandon us." The deceased then said, "I can." He did not ever see Edward. Mrs Kavalee applied for child maintenance and on 9 October 1979 was awarded $350 per week. There was no cross-examination on this but the figure seems very high. In any event the maintenance order was redeemed by agreement dated 13 May 1980 under which the deceased paid to Mrs Kavalee the sum of $23,000 in satisfaction of any further claim for maintenance on behalf of Edward. One of the recitals in the deed is that the deceased denied paternity. It is accepted that this deed is of little significance other than to show that the deceased did provide that amount towards the maintenance of Edward during his life. Mrs Kavalee in fact used the $23,000 to purchase a property in Queensland. There were various sales of properties and purchases of other properties, but eventually she sold the property she then had in Queensland to pay off the debts of a business which was unsuccessful. She had a daughter from a previous marriage and after the business failed she and her two children moved to Sydney and lived with some friends in Bellevue Hill. She and Edward were living there at the date of death of the deceased. 19 The accommodation in Bellevue Hill comprised of a room in the garden of the house belonging to some friends. It had no separate facilities and they used those in the house and had their meals with the family who owned the house. Before they moved more or less permanently into the home in Bellevue Hill the plaintiff and his mother had lived in a room in Double Bay and subsequently in a flat which Mrs Kavalee could not afford. They then moved into a house with friends in Paddington, and Edward and his mother shared a room there before finally moving back to Bellevue Hill. At some stage Edward and Mrs Kavalee moved into a two bedroom apartment in Vaucluse where they are presently living and have been living it seems for about six years. 20 Edward went to Double Bay Primary School when he came to Sydney with his mother and then to the Vaucluse High School. He got his first job at the age of ten at Flemington Markets working on Saturday mornings from 2.00 a.m. to 10.00 a.m., but that did not last for very long. Subsequently when he was twelve he worked in a shop in Paddington in the afternoons, after school and on weekends, sometimes for twenty hours a week. This lasted about two and a half years. When he was fourteen he gained a casual position at the Civic Video Shop at Rose Bay North working on Saturdays and Sundays and he has had employment with Civic Video ever since. He has had other part time gardening jobs and clerical jobs. He passed the Higher School Certificate at Vaucluse High School in 1996 with a TER of 63.55 and enrolled in a fine arts degree at the University of Sydney in 1997. However, after a few weeks he withdrew from that course and in 1998 commenced a two year tourism course at the Ultimo TAFE. He completed the first year of this course, but in 1999 commenced a degree in the Faculty of Arts at the University of Sydney. He has been interested in films and the film industry since commencing work with Civic Video and the evidence is that at the present time he wishes to pursue a career in what is described as the "post production process in film making". He considers he will be assisted in this by completion of his Arts Degree. Although there was some suggestion that the subjects which he had chosen would be of no assistance and that his intention to get involved in post production work is merely a fleeting enthusiasm, I do not think that the subjects chosen could be regarded as unhelpful, nor that they reflect upon the genuineness of his desire to pursue a career in the technical side of post production film work. Having said that there is no doubt that this a recently conceived aim, albeit that Edward Kavalee has been interested in films since he started work in the video shop. 21 There is evidence that it is unlikely that Edward would obtain entry to the Australian Film, Television and Radio School and that therefore it would be desirable for him to seek to go to one of the prestigious overseas schools, which might give him access to a career in Australia after graduation from one of those schools. It is, of course, by no means certain that entry to one of those schools could be gained because places are few and keenly sought. There is some evidence as to the cost of these courses and the cost of living overseas. There does not seem to be any direct evidence of the duration of those courses but assuming that they are for a two year period, a sum of close to $100,000 would be needed to pay for the fees and the costs of accommodation and maintenance during attendance at such a course. 22 Edward Kavalee has no assets of any value apart from some computer equipment, worth about $800. He earns between $160 and $260 per week, depending upon the number of hours he works in the video shop. For the year ended 30 June 1999 he earned a gross amount of $13,140. He has been receiving a monthly payment for some years from Ismene Pty Ltd of $433. He uses this and his earnings towards paying his living expenses while attending university, for books and the like, and makes some contribution towards the household and general living expenses. He has a liability for HECS of $4,231, which is increasing, but which will not become repayable until his income reaches a certain level. He says that since he and his mother returned to Sydney they have always lived in the Eastern Suburbs albeit in difficult circumstances, that he went to school there, that all his friends are there, that his social life for the most part is in that district and the sporting activities with which he is involved take place in that district. Thus he claims a sum sufficient to enable him to obtain accommodation in the Eastern Suburbs. He would like to have a house, so that he can provide accommodation for his mother, but if not a house then a reasonably sized apartment. Based on the evidence of Mr McGrath, the average cost of a house with three bedrooms in the Rose Bay/Vaucluse/Watsons Bay area is over $1 million and an average two to three bedroom apartment in that area, not requiring renovation, costs $650,000. However, it is clear that properties are available at substantially lower prices than this in the area. 23 The question for decision is whether the deceased failed to make adequate provision for the proper maintenance, education and advancement of his son. As it is clear that apart from the sum of $23,000 the deceased made no provision whatsoever and that this plaintiff has a need for provision, then the answer to this question must be in the affirmative, unless proper minded members of the community would have considered that no provision for this plaintiff should have been made by the deceased. To the extent to which it is relevant the plaintiff should not be regarded as an adult able bodied working son. He is twenty years of age, he has managed to maintain himself through his own efforts and with the help of his mother, and he is still undertaking a first degree at the University, albeit that he has made some attempts at other courses over the past two years, but he is not in full time employment. To some extent therefore it is not necessary to recite those passages in the judgments usually relied upon in claims by adult children, namely Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; Hughes v National Trustees, Executors and Agency Co of Australia Limited (1979) 143 CLR 134; Hunter v Hunter (1987) 8 NSWLR 573 and Gorton v Parks (1989) 17 NSWLR 1, although as those principles are relevant to the claims of Christian and Larissa, it is appropriate to point out that orders can be made in favour of adult children who establish need for provision without any requirement to establish special circumstances, but that does not mean that special circumstances may not give rise to a claim which would not exist in their absence. Furthermore what was said in those cases and others, such as Walker v Walker (Young J, unreported, 17 May 1996), as to the attitude to be taken towards claims where there has been no contact between deceased and child is relevant to the claims of all three children As Bryson J pointed out in Gorton v Parks at page 9, community attitudes change as to the attitude taken toward and weight given to such matters as illegitimacy and responsibility for creating new life, but that does not mean that proof of paternity and proof of need necessarily establish entitlement to provision. There may be other facts or matters which are relevant. I agree with respect, with the remarks of Young J on these matters in Walker. 24 So far as the relevance of illegitimacy is concerned, whatever may have been the position before the passing of the Children (Equality of Status) Act 1976 (now Status of Children Act 1996), the law now demands that their status as children be the same as that of those born in wedlock. That does not mean that all children are entitled to the same provision as of right; what it means is that whether legitimate or illegitimate, they are eligible persons as children of the deceased without distinction. Thus in so far as it was held in Re Wade [1946] SASR 131 that the court should not reverse the general policy of the law (which then did not recognise any rights of illegitimate children to share in the intestate estate of a father), the court should now, in the same way, follow the policy of the law as indicated by statutory provision. Thus it is not necessary to consider further cases such as Re Wren deceased [1970] VR 449, but that is not to say that the relationship or lack of relationship between parent and child is not a matter to be taken into account in a claim of an illegitimate child just as it is in the case of claims by children born in wedlock. 25 The relevant facts here are that the deceased was the father of the plaintiff, that the deceased never saw the plaintiff because he determined not to; that this was in no way the fault of Mr Kavalee, who was only ten when his father died; and that apart from the sum of $23,000 paid to Mrs Kavalee by way of settlement of the maintenance proceedings, nothing whatsoever by way of love, companionship, or financial assistance or any other form of assistance was ever provided by the deceased to his son, whom he determined should have no part in his life at all. The lack of relationship had nothing whatsoever to do with this plaintiff. Mrs Kavalee has little in the way of assets. Whether the deceased knew of or took no steps to become aware of the fact there can be no doubt that, at least in the time immediately after their move to Sydney the plaintiff and his mother lived in entirely inadequate accommodation. The plaintiff has, for at least the last five years, made quite substantial contributions towards the household expenses of his mother and towards his own maintenance, entertainment and holidays from his part-time earnings. In such circumstances in making no provision for a son who was a result of an unexpected, and, on both sides, an unwanted pregnancy, it is certain that the deceased failed to make adequate provision for his son's proper maintenance, education and advancement in life. On any basis he needs an advancement for a start in life. Thus is it necessary to consider what order should be made. 26 There can be no doubt that the absence of any relationship whatsoever must be a matter to be taken into account in determining what order should be made. On the other hand, the fact that the absence of any relationship was by the choice and probably the insistence of the father, (although there is little if any evidence of such insistence) rather than the fault of the son must also be taken into account. Where a father of great wealth takes no part in the life of his child, it may well be that proper minded members of the community would think that adequate provision entailed the making available of an amount not to compensate for what has not been done in the past and not to punish the father or his estate for past bad behaviour, but to recognise that one who has in essence been abandoned may have at least as great a claim for provision as one who has had the normal advantages of a happy home provided by a very wealthy parent. In saying this, I am of course aware that an order for interim maintenance was made and that when the funds available from the estate came to an end the plaintiff received the sum of $433 per month from one of the Ismene companies. 27 As any order in favour of any of the plaintiffs must be made out of property which would be designated as notional estate it is necessary to consider the matters which arise under ss27 and 28 of the Family Provision Act 1982. None of these matters looms large in these claims. No evidence has been adduced by the defendants as to the effect orders being made would have on any other persons. The burden of those orders would be borne by those persons who are beneficiaries under the memorandum of wishes. The absence of any such evidence, the vast assets in the Gartner Foundation, and the extent of any orders which I think it appropriate to make in respect of all four claims under the Act does not make it necessary to consider this matter further. One can proceed on the basis that having regard to the value of the property the subject of a prescribed transaction, the fact that no consideration was given for the prescribed transaction and the fact that no evidence has been put forward on behalf of those who would be affected by a designating order, the court can proceed to make that order which is required. This does not mean that the court should be generous. What it means is that there are no countervailing claims which must be taken into account, thereby limiting the extent of any order for provision which would otherwise be made. 28 Counsel for Mr Kavalee says that the provision which should be made for this plaintiff is a sum sufficient to enable him to pursue his desired career in the post production film business, to enable him to purchase a property in the Eastern Suburbs, and to enable him to set up a business when qualified to do so. Mr Kavalee said that if he was given sufficient money to buy a house in the Eastern Suburbs he would like to house his mother until he is married and his counsel submits this should not be taken to be an unreasonable expectation, having regard to the life which he has lived in the past. Against this, counsel for both defendants state that while there has been a gradual change in attitude towards the claims of an ex-nuptial child, such a person should not be given any special consideration. They say that Mr Kavalee is now in good health and able to work. He has obtained university admission, and has demonstrated that he is well able to work and can be expected to be able to maintain himself in the future. They point out that the $23,000 paid to Mrs Kavalee to buy out the maintenance order was lost or the benefit of it was lost as a result of the failure of a business of hers, not through the fault of the deceased. Mr White also points out that there is no certainty that the plaintiff would get into one of the overseas courses for which he has stated he wishes to apply; that he has only just inquired about them; and that his interest in this possible career is recently acquired. In addition Mr White points out that the cost of accommodation for those courses would not necessarily be the equivalent to the cost of accommodation in London. All of this is correct, but it does not overcome the fact that right minded members of the community might well think that where a child has led a difficult life because his mother has had no help from the father towards his maintenance, but where, at the time of death of the parent, and at the time of hearing, circumstances have changed so that there is an opportunity to provide some of the benefits, whether by way of education or advancement for the future which the maintaining parent was not able to provide at an earlier time, then adequate provision requires something additional to be provided for the future. Views may vary on this. The fact that the average parent does not provide the average child with a house has little to do with the matter. The fact that a son has done what he can to provide for his own maintenance and his own education does not mean that provision should not be made for his future education and perhaps for his maintenance for a period. 29 This is a difficult and unusual case. There is, for instance, no particular reason why it would be proper to think that the plaintiff had established a need for what might be described as first class accommodation in the Eastern Suburbs, nor that this was something that should have been provided for him by the deceased and that proper maintenance and advancement requires it. On the other hand, inattention may create a greater entitlement than in the case of a child properly attended to by the father. Considering the wealth of the deceased, or in this case, the wealth available for him to access as found by the Court of Appeal, and considering the inadequate accommodation and relatively hard life or basic lifestyle which the plaintiff has had in Sydney and the lack of resources available to the mother, I consider that provision should be made for this plaintiff which would enable him to purchase a home unit of average quality in what could best be described as a reasonably attractive location. That does not mean a harbourside unit or necessarily one with water views, nor necessarily one in Vaucluse. It seems to me that the circumstances in this case do not require provision for such specific accommodation. Nevertheless I consider that a sum of $350,000 should be allowed for this. In addition to that I think that provision should be made for this plaintiff of an additional sum of $150,000 to give him a fund for a start in life which he needs. Whether he expends that on obtaining qualifications overseas, or spends it on capital to set up his own business, or whether he uses it as a fund for security for his future or to repay HECS debts is to some extent not material. Adequate provision for advancement does not always depend on particular requirements. I think that is a proper sum. In those circumstances I have come to the conclusion that the proper order to be made in favour of this plaintiff is for the sum of $500,000. Claims of Mrs Ludlow Hyland, Larissa and Christian 30 There seems to be little doubt that as a result of the treatment to which he was subjected during the time he was in captivity under the control of the Viet Cong, the deceased came to the conclusion that his wife had been unfaithful to him and as a result of this his attitude towards her changed completely. He insulted her in public and he accused her of not being a good and faithful wife. Additionally, when he offered payment of $150,000 to Mrs Ludlow Hyland to leave he said that he wanted her to go because he did not wish to get attached to the baby Larissa, and Mrs Ludlow Hyland to start using Larissa "to get at him". When she told him that she needed time to think about the proposition she says that the deceased said to her, "Do not try and stall me. You just remember that I am very influential in this part of the world and you will come out the worse for it if you take me on, girlie." The deceased behaved in a similar erratic and difficult manner when the deceased was told about the second pregnancy. Mrs Ludlow Hyland, in her affidavit of 29 April 1999, gave further evidence of behaviour on the part of the deceased in connection with the children. She said that she agreed to a divorce in January 1970 but asked that they wait until the second child was born, after which she would move into another house until the divorce was settled. The deceased then told her that they would live together until he obtained a divorce and that he would get that done quickly and that Larissa would then stay with him. Then he said "You will not get one red cent from me". When Mrs Ludlow Hyland said that as the mother Larissa should stay with her, she said that the deceased said, "You don't seem to understand, I know what I can do in Thailand, so I can get rid of you and keep the baby. I can and I will." I accept all this evidence which it seems caused Mrs Ludlow Hyland to come to the conclusion that there was no hope of reconciliation. On the advice of her lawyers she decided to leave Thailand and left at the beginning of 1970, leaving everything she owned in Bangkok and thereafter the divorce proceedings which I have mentioned commenced. 31 Mrs Ludlow Hyland left Australia in March 1971 and returned to the United States with the children. She lived in the home of her godfather, Mr O'Reilly in New York. She stayed there for about eighteen months and during that time she sold her Paddington house to pay for legal expenses and to repay Mr O'Reilly for the financial assistance he had given to her. 32 There were some conversations between the husband and wife between 1970 and 1975 and there was one meeting in London in 1974 arranged for the purpose of trying to come to a settlement but it was quite unsuccessful. The deceased sent Christmas cards to the children up to 1978 but that was the extent of his contact with them. 33 In the meantime, after her return to the United States, Mrs Ludlow Hyland attended Columbia University and obtained a masters degree in international affairs. She also undertook examinations to become a securities broker and worked as such in a Wall Street firm between 1972 and 1974. Her income was then quite good and she acquired an apartment in New York City. However, she found this job too demanding while raising the children and left it in 1974 and became involved in a business called "Yassa Design Inc" marketing her designs and at the same time she established an art gallery or artefact and design gallery, and then later a gallery of West African art. Her businesses seem to have been quite successful up till about 1981 when additional funds were needed to set up a new gallery. She was not able to obtain the necessary funds for this and the business was lost in 1981, and she was forced to sell all her assets. During these years Mrs Ludlow Hyland contracted a disease known as Falciparum Malaria, which has left her with chronic anaemia. There was however one bright spark in that Mr O'Reilly left a property in Larchmont, Westchester to Mrs Ludlow Hyland under his will. It was not in good condition and she was not able to maintain it, and had to sell it some time in 1982. By this time her debts as a result of her business failure were such that the whole of the proceeds of sale were used to pay out the debtors. Mrs Ludlow Hyland moved then to Sag Harbour on Long Island. Before doing so she had a telephone conversation with the deceased, asking for some support for the children and their education. She said that the deceased said he would pay for Christian, but would do nothing for Larissa. She did not accept that and in the event no assistance resulted. 34 After the family moved to Sag Harbor Mrs Ludlow Hyland obtained a real estate agent's licence. She worked at this and when there was not much income coming in, she did other part time jobs as well. She also took in boarders. She filed her own petition for bankruptcy in December 1984 and was discharged in January 1986. She was constantly in debt and was having great difficulty keeping the Sag Harbor house and eventually lost it. She did not know of the death of the deceased until August 1989 when Larissa and Christian received letters from Mr Burbidge informing them that their father had died. Mrs Ludlow Hyland had other health problems. She was diagnosed as suffering from Lyme's Disease in 1987 and had problems with gallstones in 1989. She could not afford the appropriate treatment for this and she had no medical insurance. She has more recently been diagnosed as suffering from idiopathic immune thrombocytopenic purpura for which she must be tested every two months at the country health clinic as she is unable to afford to go to the laboratory to which her doctors referred her. 35 Mrs Ludlow Hyland is now living in rented premises at Watermill in the State of New York. She has an old motor car. Her only job is a newspaper run which she conducts in her own motor vehicle, earning $US220 per week from this. To complete the run she rises at 4.30 a.m. every morning. Apart from that she is unemployed, but she does receive unemployment benefits of $US289 per week under an insurance scheme from her last job. This is a result of her employment having been terminated by her last employer in January 1999, that employer apparently requiring her to achieve sales goals of $60,000 per month, which she did not achieve. She is hoping she will get her real estate agent's licence again and may then obtain a position in this industry. She has no assets apart from the motor car and some personal possessions of about $US9,000 and some antiques from her father's estate worth about $US7,000. She has liabilities of nearly $US50,000. At the present time her net income after tax is about $US446 per month and her outgoings, which are very modest, use the whole of that amount. The outgoings include $US225 per week for rent. 36 Counsel for Mrs Ludlow-Hyland puts forward her claim as being to a large extent founded on the following matters: (a) That she has been solely responsible for the upbringing of the children, carrying out what should have been the joint obligation of both parents throughout; (b) She has done this with no assistance or insignificant financial assistance from the deceased; (c) Her separation from the deceased came about as a result of his conduct and not hers; (d) She never denigrated the deceased or spoke badly of him to her children, but rather the opposite; (e) She has had no property settlement; (f) She has led a difficult life, is not in good health, and is maintaining herself only by rising at 4.30 a.m. in the morning to do a paper run. 37 Counsel says that adequate provision for her requires that she should be provided with a sum sufficient to enable her to pay off her debts of about $US50,000, and to purchase a reasonable car to replace her existing car, the evidence being that this would require about $US40,000. In addition he says she should have a sum sufficient to enable her to purchase a reasonable home and to provide her with an income of about $US40,000 a year. There is evidence of the cost of homes in the Southampton area where she wishes to live, which converted to Australian Dollars is in the vicinity of $400,000. It is not an expensive area but a reasonably pleasant one. The plaintiff actually sought a sufficient sum to purchase a four bedroom, three bathroom house suitable to accommodate her children and any grandchildren, but it is fair to say this was expressed as a hope for the future. To provide an income of $US40,000 a year would require, on the 3% Tables, about $1,065,000 and on the 5% Tables $880,000. There was some evidence from Mr Vella that the 5% discount rate was more appropriate but I do not think that the court should in this particular case, depart from the rate it normally adopts in cases when carrying out the calculations other than where a particular rate is specified by statute. If all these figures put forward by Mr Hutley, SC for this plaintiff are taken into account then the total sum is something in the order of $1,500,000. 38 Counsel for the defendants both say that the position of Mrs Ludlow Hyland is really like that of a former wife in which case the responsibility of the deceased to make provision for her should be looked at having regard to the period of separation, the short length of time the parties spent together, and the ability of the widow to support herself, which she has shown she is well able to do and is still doing. In addition, it is put that Mrs Ludlow Hyland had and now has, little association with New South Wales or with Australia so that the court should not look too closely at the sort of order she might have got on property adjustment in this State, if one were available to her, and should take this lack of association into account in any event when determining what is appropriate. I think that this can be somewhat overstated. The deceased spent a lot of time in Australia and controlled very substantial assets here. All his efforts to ensure that his wife got nothing commenced through transactions in New South Wales. 39 I consider this determination is a very difficult one to make. That is probably not surprising as there is nothing easy about this estate and it was not intended by the deceased that there would be. I was referred to Re H.J. Mayo deceased [1968] 2 NSWR 709 and to the two Victorian cases of Re Adams [1967] VR 881 and Re Cutts [1969] VR 254, both of which concerned claims by divorced wives, the Victorian legislation at that time allowing Family Provision Act type claims to be made by such persons if they were entitled to maintenance. At page 888 of the judgment in Re Adams the following passage appears: The special factors relevant to a claim under this Act by a woman who has divorced her husband seem to me to include the following: first, the testator's culpability in relation to the grounds of the divorce; secondly, the fact that the claimant is the mother of the testator's children; thirdly, the fact that she has had the upbringing of the children; fourthly, the length of time from the separation of the spouses to the testator's death; and, fifthly, the course which the lives of the two spouses have followed since the separation. In cases of this type it would, I think, be wrong to ignore the fact of divorce. The divorce ends and, perhaps most importantly, is intended by the spouses to end the shared matrimonial life. After it the spouses return to their two individual lives. Subject to the laws relating to maintenance, whatever responsibility one had for the other is diminished. It is, I think, desirable that when possible a woman in this position should be self-reliant and should not be encouraged to regard a past marriage as a permanent security. These considerations must be reflected in a decision whether the testator has provided for the proper maintenance of a former wife and in formulating an order if he has not. I think, contrary to Mr. Jenkinson's submission, that the position of a divorced wife is probably, for present purposes, nearer to that of an adult daughter than to that of a widow. In considering the question in Re Cutts it was accepted that these were some of the relevant matters to take into consideration. While in the present case this plaintiff and her husband remained married it seems clear enough they did this because they could not find a jurisdiction in which they could achieve a divorce, both of them having sought that. In such circumstances, I am of the view that it is correct to say that there is little difference in their particular situation from that which would have been their situation had they succeeded in legally bringing their marriage to an end. But as Street J said in Mayo at p 712: Once the necessary status is established, then the divorce proceedings become a factor, albeit that in most cases they would be the most important factor, in the assessment and quantification of the moral obligation owed by a testator to his wife. In more recent times the passage is apposite for claims of former spouses. 40 The most important considerations in this case are first that the deceased provided practically nothing for the children, and second that Mrs Ludlow Hyland has had the responsibility of bringing up those two children on her own under difficult circumstances and without adequate funds, when funds could easily have been made available. In addition the deceased provided nothing for his wife by way of maintenance or settlement. In these circumstances I have come to the conclusion that this plaintiff has a legitimate claim. In other words, in accordance with what appears to be the prevailing wording, that proper minded members of the community would consider that the deceased should have made provision for his widow so that in failing to make any provision for her and in fact doing everything he could to ensure she received no provision, she has been left without adequate provision for her proper maintenance and advancement. 41 The question then is what provision ought to be made. The extent of the funds available of course makes it proper to do whatever is required. But that does not mean the fact that the parties led separate lives for seventeen years prior to the death of the deceased should not have a substantial bearing on the type of order which should be made. However, it is also necessary to bear in mind that had divorce been available to Mrs Ludlow Hyland in Australia, then having regard to the available assets of the deceased even at that stage, and the fact that the children were being left with her, when very young, then it is likely in any property settlement that proper housing would have been provided for her and the two children and proper maintenance would have had to have been provided for those two children, and probably maintenance for the wife, at least while the children were young, to enable her to stay at home and attend to their care. Thus I consider that a sum of $100,000 should be provided to enable this plaintiff to pay off her debts and to acquire a new car because she needs that provision to enable her to lead a reasonable life in the future. In addition I have come to the conclusion that adequate provision in this case does require an amount to be made available sufficient for this applicant to purchase a reasonable home of her own and that a sum of $400,000 is proper for that purpose. Her age is not so great nor the circumstances appropriate to make a life estate sufficient. After a great deal of consideration I come to the conclusion that having regard to all the matters to which I have referred an order should not be made in the nature sought which would provide an income of about $US40,000 to this plaintiff for the balance of her life, based on the Australian Life Tables. For a start, those tables are not necessarily appropriate to this woman, who is not in perfect health for her age; secondly, about 50% of this plaintiff's income is currently spent on rent and although she will have outgoings for the home, they would not be the equivalent of the rent which she is currently obliged to pay for inadequate accommodation; and third, I do not consider that whatever is awarded should be awarded in compensation for what has been lost in the past, although what has been lost in the past can be taken into account in the general consideration. What should be provided I think, is a capital sum of reasonable size which when invested would provide through its income and capital moneys which can be considered in conjunction with the income which the plaintiff is presently receiving and the income which she may receive into the future. It is also necessary to bear in mind that if she lives to the average expected age for a woman of her current age, then she may not wish to maintain a separate home for all that time. The sum which I am considering, however, would be quite sufficient to enable her to obtain other ordinary benefits of life, which might be considered appropriate for her, such as the taking out of medical insurance, an important issue in the United States. I have come to the conclusion that a sum of $200,000 is a proper sum and that a total provision for this plaintiff should made in the sum of $700,000. Claim of Larissa 42 Larissa was born in 1968. Thus she is now thirty-one years of age. After her mother left Australia with the children to go back to America they lived with Mr O'Reilly in New York for a period until they moved into an apartment in New York City. This period of her life seems to have been quite reasonable. Presents arrived each year from Thailand with a card, but that was the only contact she enjoyed with her father. No presents or cards came after she was eleven. From time to time she asked her mother about her father and received a response which was calculated to lead her to believe that he was a good person and that the only reason he would have no contact with Larissa and her brother was because of his problems with their mother. This was explained to have come about as a result of his treatment by the Viet Cong. 43 Larissa had problems with her early education and was unable to learn to read. Eventually when she was about ten she was diagnosed as having a form of dyslexia and received some special assistance for this, but nonetheless it impeded her progress throughout her school life and in fact still impedes her in her job. Her mother was able to send her to various schools around Larchmont when she inherited the house from Gerald O'Reilly, which provided more assistance with learning problems than did schools in New York City. 44 As a result of the financial problems which her mother had, from about 1979, Larissa suffered from having to wear old clothes, which caused her to be known as "the poor girl" at school and the family living conditions, wherever they were, became very difficult due to their inability to make payments for basic services such as heating and electricity. In 1982 when the family moved to Sag Harbor Larissa was not able to stay in a school in the Larchmont area. Her mother borrowed some money to send her to a private school, the Knox School on Long Island, but she had to leave when the fees were not paid. Her mother paid some of the fees but could not pay the rest and asked the deceased to pay them but he refused. Larissa subsequently moved to Sag Harbor and attended Pearson High School there which she said was of a low standard. She did however receive some special tuition as a result of the insistence of her mother with the school authorities and her grades improved considerably as a result of this. The Sag Harbor house slowly fell into disrepair from 1982 onwards as there was no available money for its maintenance and to some extent the family relied on assistance from others for even their basic necessities. 45 Larissa got her first job in 1982 when she was about fourteen and thereafter she held down various part time jobs using the money to pay for her own clothing and to assist her mother with household expenses. She accumulated some small savings but at some time the situation became so desperate that she gave her mother $400 she had saved which was needed to pay many pressing bills. 46 In 1986 Larissa enrolled in Syracuse University in New York state. This was a university of good reputation which her mother had attended. Her mother said that somehow the fees would be paid. Larissa worked during the long summer holiday to pay for the fees and cost of living and obtained as much as was possible through school loans and grants. She was nearly always late with her university payments and was in constant fear of being dismissed from the university. In her third year, in order to meet costs she worked not only during the summer vacation but during the university term as well in part time employment. 47 It seems that the last time Larissa made any attempt to contact her father was when she was sixteen and she wrote a long letter to him in Thailand. This was returned to her unopened, which caused her considerable distress. She came to know of her father's death when Mr Burbidge wrote on 19 August 1989 informing her of this. She contacted him and was told she and her brother would each receive $150,000 from a foundation but that they would be given no other details and that her father had disposed of his assets years earlier. 48 She came to Australia in 1989 to take her turn dealing with lawyers here and to give instructions for the various proceedings which were on foot, both here and in Thailand. There was some cross-examination as to credit of both her and her brother in relation to the proceedings in Thailand, as these proceedings were brought on the basis that their father had left no will. I accept their explanation for this, that they were advised by Thai lawyers that there was no will because the will of which they were aware contained a trust and was therefore not valid. In any event that line of cross-examination could have had little effect unless it was to go to the issue of whether she wasted the moneys received from the Foundation. 49 Larissa continued with her course at Syracuse, although this was interrupted by her visits to Australia. She and her brother each received the $150,000 from the Foundation which they saved until 1993 when they needed it for expenses. The money was put into one bank account. From that account, they gave $30,000 to their mother to help her pay the mortgage on the Sag Harbor property which was ultimately lost and the rest of it has been expended on travelling and living expenses and payments for some of the costs of the court proceedings to date. $30,000 of that money was lodged as security for costs in Probate proceedings in this court. 50 Larissa was awarded the degree of Bachelor of Liberal Arts from Syracuse University in 1993. She still owes a considerable sum of money to that university. She went to England in July or August 1993 and has from time to time enrolled in certain law courses for the common professional examination and the Legal Practice Course conducted by the College of Law in Guildford, Surrey. She also returned to the United States from time to time and had some temporary employment there. Subsequently she enrolled in courses for Master of Laws/Master of Arts in Comparative and International Business Law at London Guildhall University, but she has failed one course and has not completed that degree. She obtained various administration type jobs on a temporary basis in London, but has always had difficulty with that type of employment because of her reading problems. 51 In 1998 Larissa came to Sydney to live and obtained a job with Cable & Wireless Optus as a contracts negotiator. Since then her life has improved considerably, although she has some medical problems which need regular monitoring and may require surgery in the future. She is living in rented accommodation in Neutral Bay, and paying $660 a month as her share of the rent. Her salary with Optus has recently been increased to $70,000 per annum gross, which is well above the average wage in Australia. She has some small savings of about $1,500, but she has unpaid university fees and student loan fees and other loans taken out for her university studies something in the order of $90,000. Apart from some personal possessions of no real value she has no other assets. 52 Larissa has set out on affidavit her aims for the future. She says that she would like to marry in the next four years and then have a family. She also says she would like to have three children spread over five years and that she would like not to work at least until the children are at school. She would like to buy a three or four bedroom house in the Neutral Bay/Cremorne/Mosman area and buy a car. She says that because of the experience of her mother she would also like to be financially independent of any husband and thus would like to have an income of $40,000 a year while the children were at home. Assuming that she marries quite soon and she spread her children over five years, it seems that she might be seeking $40,000 a year while the children are at home before going to school, or perhaps that she might like this after the children started school as she wants them to go to private schools. What she says is that she would be out of the work force for ten years, perhaps commencing in five years' time, and as it would then be difficult to return to her career she would like an additional $40,000 to aid her while she returns to work. 53 It is important that this list of desires, which on one view might be thought to be a wish list to a substantial degree, should not be held against this plaintiff. That is partly because of the life which she has led, but also because she presented as a reasonable person, who was not putting the list forward by way of demand, but rather as an expression of what she may have been told were her reasonable needs or expectations. 54 Mr Hutley says that Larissa is somebody who now wishes to settle down after what could only be described as a difficult life brought about to a large extent by the attitude of her father, who had plenty of money to provide her with whatever she really required. First, he says that her debts should be paid and there is no real dispute over this point, particularly as they are education debts. Next he says that she has a need for reasonable accommodation and adequate provision requires more than provision of a deposit for her. She wants to live in the Neutral Bay area where a home of the sort which she seeks would cost in the vicinity of $800,000. He says that she has a need for security brought about by her past. She has known what it is like to lose a house and she has a reasonable expectation of not being required to experience that again. In addition, it is said that she needs some financial security during a period when she is unlikely to be able to earn her own income and that an amount of $250,000 or more should be allowed for that. All these figures added together come to a total of $1,150,000 or thereabouts, which her counsel says would be adequate provision for her. 55 Counsel for both the defendants pour scorn upon this. They say that she is an able bodied independent self-supporting woman and that her only real need is the ability to pay the costs of this litigation which, if she is successful, will for the most part be provided for in any event. Mr. Brereton said that the community expects able-bodied children to provide for themselves. It might be reasonable to provide such children with an ordinary car and a deposit for a house if that is possible and provide for the debts of Larissa if any of these are education related. He says that it is ridiculous to think that proper maintenance or advancement requires provision be made to allow this plaintiff to have ten years off work particularly on the basis that she would not expect her husband to provide any support during that time. To the extent to which the claim is based on that point I agree with Mr. Brereton. However, he further says that the $150,000 provided from the Foundation pursuant to the Memorandum of Wishes of the deceased would have been sufficient to provide a deposit for a home and a modest sum for a car and enough to satisfy the education expenses. If the plaintiff wished to expend that amount which she did obtain from the Foundation on chasing around the world seeking greater provision from her father's estate or from his assets through legal proceedings in Thailand and Australia then that is a matter for her. As this argument was also made in respect of the claim of Christian it should be dealt with now. The general understanding of both children was that their father was a very wealthy man. The expectation of Christian was that eventually when his father thought he was old enough he might be admitted into his father's business interests. The children were led to believe, as a result of the conversation Christian had with his father just before he died and because of what their mother told them, that their father was not assisting them only because he thought that if he did so then somehow their mother might make some inroads into his assets. To be told that their father had an estate of only about $40,000, that his assets had been put into a trust and that they were to get $150,000 from the trust, but that its source would not be made available to them was something they could hardly have been expected to accept with equanimity, particularly when his death certificate, upon which Mr Burbidge was listed as informant, did not show them as children of the deceased. In my view it was reasonable for them to expend the moneys which they did expend on legal expenses in pursuing these very difficult claims and to some extent on maintaining themselves while they did so. In other words, having regard to the way in which the deceased structured his affairs I do not accept that it could be said, looking at the position at the present time, that the two children have somehow squandered what was left to them and for that reason no further provision ought to be made. In fairness to Mr Burbidge, I should add that I accept his evidence that he was not responsible for the lack of details on the death certificate. 56 I do not accept the proposition that proper maintenance and advancement for Larissa requires provision of a fund sufficient to provide an almost guaranteed income independent of any husband she may have for a period of ten years. Apart from anything else that would be provision based upon speculation as she may not marry and she may not have children. Nevertheless, having regard to what might be described as the complete abrogation of responsibilities towards this child during the whole of her life and to the uncertain life in effect inflicted upon her by the deceased not living up to his responsibilities, it seems to me that where the funds are readily available there is no reason why adequate provision should not require the provision of a sufficient fund to enable this plaintiff to have secure accommodation for herself of a reasonable standard in a reasonably attractive suburb. It is important in these cases to remember that the court is not dealing with average people or average community expectations for average people. It is dealing with what is proper for this particular plaintiff in the light of the circumstances, including the uncertain life which she has lived up to the present time, and the funds available to provide a secure life for her in the future. What is proper is to be determined by prevailing standards of just and fair members of the community: Permanent Trustee Company Ltd v Fraser (1995) 36 NSWLR 24. It seems to be generally acknowledged that no different result is arrived at by leaving the words "moral obligation" out of the Family Provision Act lexicon, but as the position at death is now of little relevance "legitimate or moral claims" are words bringing to mind the proper consideration, and while I accept I am bound to omit the old formula in ordinary cases, in this case s23(b)(ii) of the Family Provision Act requires me to consider that very obligation and to consider the claim with regard to the balance of competing moral obligations at the time of the prescribed transaction. As there is no evidence of any competing claim this question is of no import. In my opinion adequate provision for proper advancement and maintenance does require the provision for Larissa of a fund to enable her to buy a house or apartment, or at least to go so far towards it as to make it quite unlikely she would have any difficulty in completing its acquisition. While she is currently in good employment, earning $70,000 per annum, one cannot know how secure this employment will be. I have come to the decision that a fund should be provided for her, first to pay off her education debts, and second provide her with a fund which will enable her to buy a reasonable house or home unit and thirdly a relatively small fund to give her some security for the future. This is not a case where provision of a sum for a motor car is essential and in any event where large sums are involved, one should not just add-up the figures as if it were a compensation claim. Orders are not made on condition of expenditure for particular purposes and needs are not restricted to basic needs in determining what is proper. To the extent to which she decides to spend that fund on purchasing a more than adequate house, it seems to me to be rather irrelevant as the excess would be a cushion for the future. In these circumstances I have decided that provision for this plaintiff should be made of $690,000. This would enable payment of her debts of $90,000 and give her a sum sufficient to purchase a home or to go towards the purchase of a house or apartment and leave her with a capital fund of between $100,000 and $200,000 depending on the expenditure on the home. Claim of Christian 57 This plaintiff was born on 12 May 1970. He has no memory of his father although he understands his father saw him once. It is not necessary to go into great detail about his early life as he lived it with his sister and I have already set out the relevant history. He did have a difficult time in his early schools which were relatively rough, but both he and his sister later attended a public school at Larchmont outside New York City school system. In 1980 he attended the Malcolm Gordon School for Boys in Ada, New York as a boarder. This did not last long because by then his mother's financial problems were peaking, and they were evicted from their New York home and moved to the Larchmont house. When they went to Sag Harbor he, like his sister, attended the Pearson High School. In 1983 he was diagnosed as having Rye Syndrome, a viral influenza type infection and he says he still has some long term effects from this. The family were unable to afford regular medical and dental check ups and could only get medical attention in cases of real emergency. 58 Christian got his first part time work in 1982 and worked in various labouring and menial jobs for the next six years. Because of his experience in boarding school he realised just how much better off he would have been had he been able to continue his education there, rather than at the Pearson High School where the academic standard was quite low. By 1986 he had saved up enough money from summer jobs to pay an airfare to Australia and decided to come here to try to meet his father. He met with Dr. Furber, who was a friend of the deceased and who appeared surprised that his father was making no provision for him, but he did not meet his father. He passed the university entrance examination, but not well enough to be awarded a scholarship to one of the more recognised universities. He applied for various grants and was accepted into New England College, which he attended between 1988 and 1992. He managed to obtain a scholarship in the second year, which required him to remain on the honours list, which he did. Nevertheless he needed student loans to enable him to continue this education. In 1988 he again decided to try to contact his father and spoke to him on the telephone. There is little point in setting out the conversation. It demonstrates that Christian wished to see his father as he regarded him as part of his family and life and wanted to get to know him, but his father, hiding behind his suspicion of Mrs Ludlow Hyland, would not agree to any meeting, saying "the time is not right son". And later, "No son not now. When you finish your studies I will send for both of you. You will come and work for me in Bangkok, its for the best, trust me and don't be too disappointed. Believe me it is for the best." It was the first and only time the plaintiff spoke to his father, leaving him first with a feeling of excitement, and then with a feeling of depression. 59 Christian went through various emotional experiences after hearing of his father's death. After receiving the correspondence from Mr Burbidge and being very confused at having been told that his father had disposed of his enterprises many years ago and had virtually no estate, he decided to come to Australia. There were numerous things which concerned him, including the assets disclosed and the fact that neither he nor Larissa were named as children of the deceased on the death certificate. He ascertained that Edward Kavalee had brought a claim for provision out of the estate and he got in contact with him. He sought legal assistance and ultimately brought his application under the Family Provision Act. 60 In 1992 Christian returned to the United States to complete his studies at the New England College. He eventually obtained a Bachelor of Arts degree in August 1992, some of his study having been done on secondment in England. After that he had various jobs of a more or less casual nature, as well as volunteer work and continued further study at night. He returned to Sydney in 1993 to assist with the management of the case because there were not sufficient funds to pay lawyers to do all the detailed examination and investigation work. He was involved in the various proceedings here and in the Court of Appeal in Thailand. He has now decided to make Sydney his home. He did obtain a position with Tourism Australia Pty Limited as an advertising sales person in 1996 and gained promotions in that profession. Like his sister, his position has improved quite dramatically lately. In June 1999 he took a full time employment position with Australian Consolidated Press as business development manager on a salary of $70,000 per annum plus $10,000 a year car allowance. He has a Mazda motor vehicle, but his total assets including the car are only $12,000. He still has liabilities for student loans of $32,000 and some other credit card and personal loan debts in Australia of about $19,000, so that his total debts are just over $50,000, plus his legal fees. He is living in rented accommodation, paying $790 per month, but his income at the present time is quite sufficient for him to lead a reasonable life and presumably to commence debt repayments. 61 Like his sister Christian would like to have a house. In fact he says he would like to buy a house in Bondi which was his great grandfather's house, but that is a wish and no more, as there is no evidence the home is available to purchase. He further states that his desire for his career is to get more deeply involved in the publishing and media business and to be able to travel overseas for further business studies to enable him to run a publishing business properly. Thus he aspires to attend one of the Master of Business Administration or similar courses which are available at overseas universities. There is evidence that the cost of attending one such institution for a two year course, including tuition and board, is in the vicinity of $130,000 and other such courses are more expensive. 62 This plaintiff's claim is put on much the same basis as that of his sister, as I have already set out above. Mr. Hutley says that he also has some special claim arising from his concern for his father and his expectation that he ultimately would find recognition and acceptance in his majority. In essence what he has been required to do is to spend his energies upon litigation for ten years. He has had a desire to study overseas for a long time, but has been unable to do so. In the circumstances such as those that exist here, Mr Hutley put that adequate provision for proper education means that provision should be made for this plaintiff to attend a Master of Business Administration type course to set him up for the future career on which he wishes to embark. His counsel says that what he needs is a reasonable house, for which a sum of something like $760,000 should be provided, plus an amount to enable him to study overseas for two years, which Mr. Hutley puts at about $200,000 although it may not require somewhat less than that, and third that he needs a fund to pay off his education liabilities. The total of this comes to just over $1 million. 63 There is no doubt that Christian is an able-bodied working adult son. Furthermore, there is no doubt that at the present he has a good job and is earning a good income. Thus it is said by the defendants that he has established no need for provision or entitlement to provision. The argument as to whether the deceased had some obligation to provide funds for his children to litigate against the estate, or perhaps that their doing so results in their having no legitimate claims for more, I have already dealt with. In view of the life this applicant has led in the past and in view of the funds available, I have come to the conclusion that he has established entitlement to more than what might be described as a basic figure to pay off his existing liabilities and to set him up for the future. I repeat that this is not compensation but proper provision, taking the past into account. I do not accept the view that there cannot be some circumstances where adequate provision requires provision of funds for more than a first university degree, particularly when no funds have been provided for that first degree, albeit that I would intend to provide for the education debts in any event. Once again lack of parental support in the past may mean that adequate provision by way of education or advancement requires a greater sum than is usual to provide for the future. There was considerable evidence about the cost of providing accommodation for this plaintiff, but really what he wishes is to be able to buy a house in the same area in which his sister would like to live, which as I have said would require about $800,000. I do not consider just and proper minded members of the community would consider that adequate provision would require or justify provision of funds to purchase a home or even a semi-detached home, in the Neutral Bay area, but I do consider in the particular circumstances here provision should be made to enable suitable accommodation to be obtained. I consider that a sum of $350,000 is appropriate for accommodation purposes, that a sum of about $55,000 is needed to pay off the debts and that a sum in the order of $150,000 should be provided as advancement to give this plaintiff the opportunity to engage in further study in the United States, or to set himself up in some business. I have come to the conclusion that an award should be made in his favour in the sum of $550,000. As I have said, in coming to the figures which I have come to for all the claimants, it must be borne in mind that in matters such as this the court does not make any award conditional upon the expenditure being used in a particular way and to some extent the needs for which provision is made, must overlap. For instance any home could be let out during any period of overseas study. This needs to be borne in mind when determining the global amount. Haiti Divorce 64 None of the parties suggested that the Haiti divorce decree would be recognised in New South Wales. I consider it clear that it would not be. In the absence of evidence to the contrary the same position applies in Thailand. I will answer the appropriate question accordingly. Conclusion 65 The facts relevant to all four claims take them quite outside the ordinary Family Provision Act claim. The orders in favour of each plaintiff reflect their extraordinary nature. I say that to ensure they are not regarded as a benchmark. 66 All plaintiffs asked that I make no final determination or orders until they had considered my reasons and made submissions on costs and as to whether orders for costs could justify varying the orders I otherwise would propose to make. I stated that I would follow that course and therefore I will stand the matter over for any further argument on costs and for the purpose of providing answers to the relevant questions and making final orders, which will of course include the necessary designating orders. Last Modified: 09/25/2000 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.