Dolman & Anor v Palmer [2005] NSWSC 327

New South Wales Supreme Court

CITATION : Dolman & Anor v Palmer [2005] NSWSC 327

HEARING DATE(S) : 29/03/05, 30/03/05 and 31/03/05

JUDGMENT DATE : 31 May 2005

JURISDICTION : Equity Division

JUDGMENT OF : Master Macready at 1

DECISION : Paragraph 88

CATCHWORDS : Family Provision. Application by an ex wife and daughter of deceased. Property settlement with ex wife affected by deceased's failure to fully disclose his assets. Existence of factors warranting the making of the application under s9(1) of the Family Provision Act 1982. - Daughter deliberately cuts off all contact with deceased for last 12 years of deceased's life. Her claim dismissed.

PARTIES : Fiona Dolman & Pamella Dolman v Michael John Palmer (Estate of late William Lance Dolman)

FILE NUMBER(S) : SC 6383 of 2003

Mr D.E. Grieve QC with Ms D. Coulton for plaintiffs COUNSEL : Mr C.J. Bevan for defendant

Vizzone Ruggero & Associates for plaintiffs SOLICITORS : Turner Freeman for defendant

LOWER COURT JURISDICTION :

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Master Macready

Tuesday 31 May 2005

6383/03 Fiona Ann Dolman and Pamella Anne Marea Dolman v Michael John Palmer JUDGMENT 1 Master: This is the hearing of claims under the Family Provision Act 1982 in respect of the estate of the late William Lance Dolman who died on 2 April 2003 aged 71 years. He s survived by his two wives and his two children from his first marriage. The first plaintiff is the deceased's daughter and the second plaintiff is his first wife. The defendant is a friend of the deceased who was appointed his executor. The deceased's second wife and a former de facto partner have been given notice of the proceedings and make no claim. The last Will the deceased 2 The deceased made his last Will on 1 April 2003 and left his property as to one half share to his son Gregory. He gave 25% to his sister and brother-in-law Paula and John Chestnut, 7.5% to his nephew Colin Chestnut and his wife Jean, 5% to his sister and brother-in-law June and John Bennett, 2.5% to the defendant and his wife Jean, 5% to Eugene and Joyce Odgers and the remaining 5% to Sheryl M Lee, a former de facto partner. He made no provision for either plaintiff. The deceased left statutory declarations in which he set out the reasons why he made no such provision. 3 In respect to the first plaintiff he said: "2 I have made no provision in my Will for my daughter Fiona Dolman for reasons including that she has made no contact with me, that is she has not visited me until very recently and has shown no interest in my welfare, even though she is aware that I have been ill in hospital. " 4 In respect to the second plaintiff he said: "3 I have made no provision in my Will for my ex-wife, Pamela Dolman, for reasons including the we have been divorced now for more than 10 years and, at about the time of our divorce, we reached an agreement which was endorsed by the family Court of Australia whereby my ex-wife received and adequate property settlement and also that she has, since our divorce, shown no interest in my welfare and has made no contact with me. " The estate of the deceased 5 The deceased's estate substantially consisted of the deceased's home at 116 lower St Georges Crescent, Drummoyne. The value of the estate was estimated to be $4,968,846.45 before the sale of the deceased's home. There has been a distribution of $1,470,835.56 and the amount now left in the estate after the sale of the home for a gross price of $4,125,000 is $3,036,087.88. There have been substantial costs incurred in the matter. The plaintiff's costs are estimated at $152,155.64 and those of the defendants at $131,000. This is a total of $283,155.64. The family history 6 The deceased was born on 16 December 1931 and his first wife was born on 22 June 1934. They married on 18 November 1962 and had two children. Gregory their son was born on 15 June 1963 and Fiona who is the first plaintiff was born on 7 December 1971. 7 The deceased acquired in his own name the property at 116 Lower St Georges Crescent, Drummoyne on 6 July 1967. The whole family resided there until Gregory and left home in April 1984. In the middle of 1984 there was a separation between the deceased and his wife after 22 years of marriage. At that time the deceased occupied the upstairs of the property and his wife and the plaintiff Fiona occupied the ground floor of the property. It is plain that they lived totally separate lives from this time onwards. At this stage Fiona was 12 years of age. 8 In 1990 the deceased and his wife were divorced. They finalised their property arrangements with a property settlement in March 1991. Under the settlement the deceased retained the home at Drummoyne, then valued at $900,000 and paid $500,000 to his wife, provided her with a car and all the furniture located on the ground floor of the Drummoyne property. 9 By July 1991 the second plaintiff had received the balance of payments under the property settlement and purchased a property at 13 Speed Avenue, Rodd Point, for the sum of $287,000. 10 In August 1991 Fiona completed various courses and commenced her first full-time employment. At about that time the second plaintiff made a will in which she left her estate equally between her two children Fiona and Gregory Dolman. 11 After the purchase of the property at 13 Speed Avenue the plaintiffs moved into occupation and the deceased remained living in the Drummoyne property which he had retained. From time to time Fiona received birthday cards and other cards from her father. In 1993 or 1994 Fiona wrote an angry letter to her father which she described as her being brutal in her honesty about the way she felt towards her father and asked her father to stop sending her cards. He did however respond in detail to the letter. There was no further contact between them until the deceased was admitted to hospital in March 2003. 12 However, there was an occasion in 1995 when Fiona was driving past her father's house. Her father was outside and they made eye contact with each other. Fiona continued on to visit an old neighbour and she made no attempt to see her father. 13 After the move to Rodd Point the second plaintiff, the deceased's former wife, had no further contact of any consequence with the deceased. 14 In March 1999 the deceased married Wintel Sandro, a widow of a doctor, in Georgia, USA. He went there to live with her. This marriage was dissolved on the 25 June 2001 and the deceased entered into a property settlement with his second wife. 15 Towards the end of 2002 the deceased informed his son, Gregory, that he had been diagnosed with mesothelioma. Although his father was hopeful he would get better mesothelioma is normally a fatal disease. He says that his father asked him not to tell Fiona or his former wife about the diagnosis. On 15 March 2003 Fiona learned from her father's next-door neighbour that her father had cancer and had less than two weeks to live. She did not visit him at this stage. 16 On 27 March 2003 Gregory informed his sister Fiona of the deceased's illness and that he only had a few weeks to live. On 30 March 2003 Gregory arranged for Fiona to visit her father in hospital. A hearing of his claim in the Dust Diseases Tribunal was held at his bedside on 1 April 2003. On that day he also made his last will and executed the statutory declarations to which I have earlier referred. He died the following day 2 April 2003. 17 These proceedings were commenced within the time limited under the Act. The eligibility of the plaintiffs 18 Both the plaintiffs are eligible persons. However the second plaintiff, Pamela Dolman, must establish the existence of factors warranting the making of the application under section 9(1) of the Act. 19 The question of factors warranting in respect of former spouses has been dealt with in a number of cases. In Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639, a number of the Judges dealt with this matter. Kirby P had the following to say: "Fifthly, the respondent, picking up one of the themes of Mr Landa's comments, urged that s 9(1) of the Act was to be read in the light of the policy of the law to promote the finality of settlements of property disputes by orders made in the Family Court. Where such orders had been made, an order under the Act in the case of a former spouse should be exceptional. Only if this approach were adopted would the policy of the Family Law Act (Cth) be fully achieved. That policy is that parties whose marriage has been dissolved and in respect of whom orders have been made disposing of their matrimonial property, could go their separate ways . Save for the rare and exceptional cases provided under the Family Law Act (Cth), such parties should henceforth face no financial obligation from one to the other. This public policy was referred to by Young J in O'Shaughnessy (at 149). It was also stressed by his Honour in the present case. There is no doubt that in most cases, the achievement of a final property settlement in the Family Court would be seen by the parties, in current social circumstances, as terminating any moral claim of a former spouse to provision in the will of the other. Confronted by the news that he or she had been excluded from the will of the former spouse, the response would, in the overwhelming majority of cases, be: 'Our marriage was dissolved. We settled our financial affairs. We can each start a new life. That was the whole point of the Family Court proceedings.' To this extent, I agree with what Young J has written in O'Shaughnessy and in this case."