Ditte v Ditte [2010] NSWSC 940

New South Wales Supreme Court

CITATION : Ditte v Ditte [2010] NSWSC 940

HEARING DATE(S) : 23/08/10

JUDGMENT DATE : 24 August 2010

JUDGMENT OF : Slattery J at 1

44. I make the following orders: DECISION : 1. Order that in lieu of the legacy provided for the plaintiff under the will that he have a legacy of $175,000. 2. Order that the plaintiff's costs be paid out of the estate. 3. Further order that the defendant's costs be paid out of the estate on the indemnity basis.

CATCHWORDS : SUCCESSION - Family Provision and Maintenance - adult son - strained relationship with deceased - provision under will inadequate - moral claims of other beneficiaries considered - order for provision made.

LEGISLATION CITED : Family Provision Act, ss 6(c), 7, 9 and 11

CATEGORY : Principal judgment

Hastings v Hastings [2010] NSW CA 197 CASES CITED : Taylor v Farrugia [2009] NSWSC 801 Wheatley v Wheatley [2006] NSWCA 262

PARTIES : Plaintiff: Mark Ditte Defendant: Neil Ditte

FILE NUMBER(S) : SC 10/31210

COUNSEL : Plaintiff-R.K.Weaver Defendant- R.J.Colquhoun

SOLICITORS : Plaintiff-R.W.Higgins Defendant-N.Veksler

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

SLATTERY J

TUESDAY, 24 AUGUST 2010

2010/31210 MARK DITTE v NEIL DITTE JUDGMENT 1 HIS HONOUR: Mark Ditte, the plaintiff in these proceedings is the son of the late Christopher Ditte. When Mark Ditte was very young his parents were divorced. Mark initially went to live with his mother, Jacqueline. During his adolescent years he lived with his father. Christopher Ditte died on 27th August 2008 leaving an estate, which at the time of trial was all held in cash in the sum of of approximately $378,000. Chris Ditte gave the modest contents of his bank account to his son and the balance of his estate, being the proceeds of sale of a unit in Ashfield, Sydney, to his brother and sister who live in the United Kingdom. The question for determination in these proceedings is whether an order for provision out of Christopher Ditte's estate should be made in favour of Mark under Family Provision Act section 7 and if so, what that provision should be. More detailed background is required to explain the issues presented for trial. 2 Christopher and Jacqueline Ditte were both born in the United Kingdom where they married in September 1966. A month later they migrated to Australia. But their marriage was not successful. It lasted only 7 years and the couple separated in mid 1973. This Court, which then had jurisdiction in divorce proceedings, dissolved the marriage in its Family Law Division on 28 November 1973. 3 Christopher and Jacqueline Ditte's son, Mark was born on 8th March 1967. At the time of hearing he was 43 years old. When Christopher and Jacqueline divorced the Court made orders giving custody of Mark to Jacqueline and access to Christopher. After the divorce contact between Christopher and Mark continued. Between 1973 and 1980 when he grew from the age of 6 to the age of 13, Mark Ditte would see his father every second weekend. These were important years of his life. 4 During his adolescent years Mark expressed a desire to live with his father. I accept that Jacqueline Ditte expressed concern about this change but was unable to prevent it. Christopher Ditte supported his son financially but Mark was given a great deal of freedom with his father and did not finish his education. Mark left Blacktown Boys High School in 1982 without obtaining his School Certificate. The relationship between Mark and his father was affected by his father's increasingly heavy use of alcohol. A strong recollection of Mark from this period, which I accept as accurate, was of his father buying him a small motorbike, taking him to a motor bike club and to other bike tracks, dropping him off on a Sunday morning and picking him up later in the afternoon. In the meantime Christopher Ditte had gone to a local hotel. 5 Jacqueline Ditte's fears about the risks of Mark being with his father were realised. Mark Ditte explained in evidence and I accept as correct that his father would allow him to drink in hotels before the age of 18. He did not attend school on a full-time basis and was given access to alcohol on a regular basis at the age of 15 or 16. Mark Ditte explained, and I accept, that his father allowed him to drink at times up to 5 or 6 beers a day in hotels with his father. The potential for harm of this kind of conduct for an adolescent at that age need hardly be stated. But there was an even greater risk at hand. 6 Mark Ditte's proximity to hotels in his adolescent years led him to have contact with people involved in drug taking. He started to use recreational drugs such as cannabis in his mid teen years. Within two years this pattern of behaviour led to him try LSD, amphetamines and eventually heroin. To maintain supply for a heroin habit that he had by then developed Mark Ditte became involved in criminal activity. In late 1983 he was convicted of involvement in an armed robbery and in June 1984 was sentenced to a period of detention at the Mount Penang Juvenile Justice Centre for Minors. He was released when he turned 18 in March 1985. He commenced a relationship with a woman, Monica Tarlington and together they had a daughter Kylie Ann, who was born in 1985. That relationship did not last. 7 Mark was soon in trouble again. In 1985 in an impulsive incident he stole a motor vehicle for which he was convicted and spent 8 months in gaol at the Oberon Correctional Centre. 8 Upon Mark Ditte's release from the Oberon Correctional Centre at first things began to look up. He returned to live with his mother at her home in Kings Langley Park. At that time his father was living in Ashfield. Mark Ditte would regularly go and meet his father to drink with him at the Ashfield RSL Club or the Catholic Club. The positive side of this was that Mark Ditte and his father continued to maintain contact with each other on a regular basis. The negative side was that the contact generally took place in premises where liquor was sold commercially. 9 The plaintiff was able to work as a carpet layer with Carpet Cutters for three years after leaving the Oberon Correctional Centre. But he was reintroduced to drugs. At the time of its reintroduction he was in a relationship with another woman, Vicky Whitley. Given his history Mark Ditte seemed to be at a high risk of a relapse into drug taking. This is what then happened as he and his mother clearly explained in evidence. The relationship with Vicky Whitley also ended. 10 Throughout these relationships the plaintiff continued to see his father on a regular basis until about the early 1990s. His contact with his father then became less frequent. But it did persist in the course of Christopher Ditte having contact with the second of Mark Ditte's children by relationship that commenced about 1993. In that year Mark Ditte developed a close personal relationship with Debbi Dubois, a woman a few years older than himself with whom he had a son, Kayne, in March 1994. Debbi Dubois died prematurely of cancer in 1996. A court contest ensued over the custody of Kayne, between Mark and another person with whom Debbi Dubois had a relationship. But Kayne was acknowledged as the child of Mark Ditte and since 1996 has lived with Mark and his mother Jacqueline. Kayne's needs are an integral part of the domestic needs of the plaintiff given Mark Ditte's continuing responsibility for Kayne's welfare. 11 Mark Ditte's substance abuse from an early age was accompanied by effects upon his long term health. He has suffered epileptic seizures since about 1984. In his late teens he was diagnosed as suffering from epilepsy. He receives regular daily medication for this condition. The medical evidence that I accept is that he has impaired cognition. His own evidence which I accept is that he feels he suffers from short-term memory loss. He has a liver condition for which he receives treatment. 12 The medical evidence in the proceedings which I also accept is that Mark is unemployable. An attempt was made in cross-examination to suggest he may be able to undertake gainful employment. Having seen him in the witness box and taking into account his history and risk of relapse into drug taking I find that he is unemployable. Instead he receives a disability pension. In my judgment this situation is likely to represent his long-term future. 13 Both Mark and his mother Jacqueline claim that he has not used illegal drugs for 15 years. I accept their evidence as to this. He still continues to take methadone as part of a rehabilitation program. Their evidence on this subject was given with conviction. There are objective reasons also to accept their evidence. Mark has not been involved in any criminal activity in that period. He and his mother moved away to Wallerawang where they now live, distancing Mark from the scene and his associates of his earlier criminal activity. Mark is preoccupied as a sole parent with concerns about Kayne's welfare. 14 Much of Mark Ditte's future is connected with his obligation to educate and provide for Kayne who is now 16 years of age and in Year 9 at Lithgow High School. Mark has already experienced difficulties in raising Kayne who has been diagnosed with Attention-Deficit Hyperactivity Disorder ("ADHD"). Mark's efforts to raise Kayne are being guided by a psychiatrist practising in Lithgow. Mark Ditte says and I accept that he wants the best for Kayne and wishes to do whatever he can to ensure that Kayne has the best opportunities in life available to him. 15 Kayne became the source of a closer relationship between Mark and his father. When Kayne was younger Mark would take Kayne to meet his grandfather, Christopher, and they went on outings together. Mark can recall one such outing at the National Wildlife Park at Doonside on one occasion when the family reunited, Christopher, Jacqueline and Mark all took Kayne to the Royal Easter show at Olympic Park. 16 I accept Jacqueline Ditte's and Mark Ditte's evidence that they were not informed that Christopher Ditte was close to death. Although, their lack of knowledge of this seems to indicate low frequency contact with him in the last few months of his life. Jacqueline Ditte says and I accept that she only found out about Christopher Ditte's death through the newspaper. 17 But in the years leading up to his death I accept that Mark Ditte regularly visited his father at his Ashfield apartment. Mark did not conclude from those visits that the deceased was living with anybody else. But it emerged after his death that there was a potential for a claim upon the deceased's estate by a Ms Michelle Howard who was often present when Mark visited the Ashfield unit. Christopher made little mention of Michelle Howard to Mark. Evidence has been tendered in these proceedings that Michelle Howard, who has been notified of these proceedings, does not intend to make a claim on Christopher Ditte's estate under the Family Provision Act. 18 Mark Ditte's current financial position is poor. He is in need of capital, a matter which was not really contested in these proceedings. The real question is how much capital he needs. His present circumstances are that he lives with his mother Jacqueline at Wallerawang. Jacqueline sold her property at Kings Park and moved to Wallerawang in April 2008. The property was purchased in joint names for $189,000. They hold the property as joint tenants. Mark Ditte did not make any contribution to the purchase price. The proceeds of sale of the Kings Park property were insufficient to wholly account for the purchase price of the Wallerawang property. There is still a mortgage of $50,000 owing on the property to the ANZ Banking Group Ltd. The Wallerawang property is now likely to realise upon sale about $180,000 to $190,000. 19 I accept that the plaintiff bears some of the housekeeping costs including rates, electricity, gas and mortgage payments making total monthly contributions on his part of $2152 to he and his mother's joint domestic expenditure. He receives a disability pension of $610 per fortnight and child endowment totalling approximately $270 per fortnight. 20 Jacqueline Ditte receives a payment of $800 per fortnight made up of her own pension and carers benefit. Thus the total household income is approximately $1680 per fortnight or $3360 per month. Jacqueline Ditte has her own expenses. Mark Ditte's and his mother's evidence which I accept and which could not be contested on the available evidence is that their total household expenditure exceeds total household income by about $500 per month. Neither of them are able to accumulate any savings. Jacqueline Ditte is demonstrably running down her savings. This situation will be alleviated to an extent by paying off their mortgage. The will 21 The deceased made a handwritten will dated 15 February 2002 disposing of his property in New South Wales. Probate of this will was granted on 12 July 2009. He made a will on 31 December 2007 disposing only of his property in the United Kingdom ("UK"). These proceedings are concerned with the deceased's will in New South Wales. But the dispositions under Christopher Ditte's UK will are relevant to the exercise of my discretion in this case. 22 Under Christopher Ditte's New South Wales will he devised the Ashfield unit equally to his brother Michael Ditte and to his sister Anne Hobbs after appointing his nephew (his brother Michael's son), Neil Ditte to be his executor. He gave to the plaintiff what he described in his will "no more than the amount remaining in my current or savings accounts which are held in my name in any financial institution after my executor has completed his duty". The amount the subject of the gift was approximately $8,000. At the time of trial the sum has been wholly expended on outgoings in the course of the administration of the estate. 23 The New South Wales will did not provide for the disposition of any residue. 24 Christopher Ditte was survived by his brother and sister in the United Kingdom. There was a provision in the will that should either of them pre-decease him that the share of each of them would be divided equally between their sons and daughters, Christopher Ditte's nieces and nephews. 25 Under the deceased's UK will Christopher Ditte bequeathed his 1/3rd interest in his mother Kathleen's property in Bath, England to his brother and sister. They now each have a half interest in that property. No other property is disposed of by the UK will other than that interest in the Bath real estate. This UK will was made during a visit Christopher made to see his family during Christmas 2007. Christopher Ditte's share in the UK property was transferred to Michael Ditte and Anne Hobbs in January 2009. The Bath property is currently worth £150,000. Kathleen Ditte, Christopher Ditte's adoptive mother lives in the property. Christopher Ditte's family in England 26 Christopher Ditte maintained a constant relationship throughout his life with his brother and sister in England. This is firstly evident from the terms of the will and the terms of the English will. He showed a strong desire to benefit his brother and sister, and if they predeceased him, his nieces and nephews. 27 Michael Ditte gives an account of a good relationship with his brother Christopher before Christopher married Jacqueline and left for Australia. He also records regular visits that Christopher made to the UK to visit his family there including his nieces and nephews. I accept the correctness of this evidence. Michael Ditte also gives evidence as to comments that Christopher Ditte made to Michael about Mark causing him embarrassment due to his criminal behaviour. I accept this evidence is correct but the picture in Australia was more complex. Undoubtedly Christopher Ditte did have a sense of embarrassment about Mark but he also bore responsibility for Mark's development. He seemed to acknowledge that responsibility by his conduct in paying for lawyers to represent Mark before various courts. 28 Christopher Ditte's sister Anne Hobbs confirms Michael's evidence. She attests to the good quality of her relationship with her brother Christopher over many years. After her marriage in 1969 she and Christopher kept in regular communication by letter every 2 to 3 months although Christopher, being by nature a private person, did not communicate from that distance much of his feelings about Mark or his family situation to his sister. It was therefore very difficult for her to know what was happening in his life here in Australia. Christopher kept her in touch with her about the major events in his life and the shame that Mark's conduct had occasioned him. In the last 20 years Ann Hobbs maintained regular telephone contact with her brother Christopher. And Ms Hobbs says and I accept that Christopher said to her that he did not want Mark to benefit from any of his assets as Mark would squander Christopher's money. The making of such statements is well supported by the form of the will. She also recalls the deceased explaining to her his distaste at the way Mark had behaved, which the deceased thought caused the breakdown in their relationship. I accept that the deceased did say these things to her but I also find that he did attempt to maintain a relationship with his son Mark and succeeded. There was continuing contact particularly in the interests of Kayne. 29 Michael Ditte and Ann Hobbs have both received an interest under Christopher Ditte's UK will. Ann Hobbs is retired and is aged 62. She has a monthly income of £302. Her husband has a monthly income of £987. Their joint monthly expenditure is £539. Ann Hobbs and her husband have between them real estate and other personal property worth the order of £430,000 with no liabilities. They have two children in their 30s. Further capital would be of value to Ann Hobbs at this stage of her life but she and her husband have accumulated savings and assets over the years. Their financial needs are real but not pressing. 30 Michael Ditte is also retired and is aged 65. He and his wife also have two children in their 30s. They have joint monthly income of £2172 and joint monthly expenditure of £1550. They have joint assets of approximately £360,000 and liabilities of £86,000. Michael Ditte's financial position is not unlike that of his sister Ann Hobbs although his need for capital is perhaps slightly greater than hers. Michael Ditte and Ann Hobbs each value their individual half interest in the Bath property at £75,000. Statutory Provisions 31 The relevant statutory provisions of the Family Provision Act engaged by the plaintiff's application are set out below. The plaintiff qualifies as an "eligible person" entitled to make a claim against the estate of the testator under s 6(c) Family Provision Act. 32 The discretionary considerations of the Family Provision Act have been invoked in this case by both sides. The relevant principles developed in the authorities that are relevant to the exercise of this discretion are set out below but the statutory provisions are relevantly the following.