Supreme Court New South Wales Medium Neutral Citation: Drury v Sutton [2011] NSWSC 216 Hearing dates: Tuesday 22 February 2011 Decision date: 28 March 2011 Before: Associate Justice Macready Decision: In my view the appropriate order is that Desmond receive a legacy of $100,000 and Patricia receive a legacy of $75,000 payable on the death of Judith. Catchwords: WILLS AND ESTATES - Family Provision - relationship with the deceased - Claim by two children - Turbulent relationship with the deceased - nature and extent of estate - only notional estate and the person having the benefit of the notional estate is suffering from cancer with a life expectancy of 12 months - Order for provision upon the death of the owner of the notional estate. Legislation Cited: Family Provision Act 1982 Wills Probate & Administration Act 1898 Cases Cited: Benney v Jones (1991) 23 NSWLR 559 Gorton v Parks (1989) 17 NSWLR 1 Hughes v Hughes (Court of Appeal unreported 6 June 1989) Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Savic v Kim [2010] NSWSC 1401 Singer v Berghouse [1994] HCA 40 Walker v Walker (New South Wales Supreme Court, 17 May 1996, unreported) Vigolo v Bostin [2005] HCA 11 AT 25 Nicholls v Hall [2007] NSWSC 356 Category: Principal judgment Parties: Desmond Cyril Drury & Patricia Buhagiar v Judith Ann Sutton Representation: Counsel: Ms L Doust - plaintiffs Mr M Lawson - defendant Solicitors: Haskard and Co - plaintiffs Shepherds the Family Law Specialists -defendant File Number(s): 2009/289134 Judgment 1This is an application under the Famil y Provision Act 1982 in respect of the estate of the late Josephine Patricia Field who died on 17 July 2008 aged 89 years. The deceased was survived by her six children. The two plaintiffs, Desmond and Patricia are the children of the deceased. The defendant, Judith Sutton, is also a child of the deceased. Will 2In her will dated 18 May 2004, the deceased appointed the defendant, Judith, as executrix and trustee of her estate. She gave Judith her interest in jointly owned property at Park Avenue, Westmead and gave the residue of her estate to the remainder of her five children other than Judith, to be divided between them. 3Probate of the deceased's will was not taken out as she left no estate. The plaintiffs have a grant under s 41A of the Wills Probate & Administration Act 1898 to enable them to bring these proceedings. Estate 4At the date of the deceased's death, the deceased had bank accounts totalling some $9,300. Some of this money has been used to pay for her funeral and some was used to pay other bills such as unpaid rates. These expenses exceeded the funds available. 5As at the date of death, the deceased and Judith held the property at Park Avenue, Westmead as joint tenants. 6There was valuation evidence for the property. The defendant obtained appraisals from two LJ Hooker estate agents giving estimates of $500,000 and $460,000 - $500,000. A jointly obtained valuation from a listed valuer gave a value of $700,000. The difference in price seems to stem from the fact that the listed valuer has taken into account some underlying development potential as well as considering comparables. 7One market appraisal referred to one comparable sale but it was not analysed. In the circumstances I think the best evidence of value is that of the valuer of $700,000. 8Costs have been incurred in the proceedings. The plaintiffs' costs in the matter are $47,895 and the defendant's costs are $3,488. The balance of the costs incurred by the defendant will be paid from legal aid. History 9The deceased married Alan Drury in about 1937 and they were divorced in 1944 or 1945. From that marriage there were five children, Kevin Drury born in 1936, Graham Drury born in 1938, Beth Drury born in 1939 and Colin Drury born in 1941. Prior to the divorce from Mr Drury the deceased had a three year de facto relationship with Cyril Minter and at some stage a relationship with Dock Hickson. 10Patricia was born in July 1942 and she is a child of Dock Hickson and the deceased. 11Desmond was born in December 1944 and he is a child of Cyril Minter and the deceased. Maxwell Drury who was born in 1943 was also a child of Cyril Minter and the deceased. 12Kevin and Maxwell predeceased the deceased. 13The deceased was the de facto wife of Eric George Sutton from about 1945 until his death in January 1968. There were breaks in the relationship. Judith Ann Sutton was born in September 1947 and her father was Eric Sutton and the deceased. He is known in the evidence and referred to as Darcy Sutton. 14Notices of the proceedings have been given to all the children with the exception of the parties and Colin Drury who cannot be located. I am satisfied that it is not practicable to serve notice on him. 15In about 1945, Patricia who was then aged three years suffered an achilles tendon injury which required hospital treatment. She was cared for by another family for about a year and she returned to live with the deceased and Darcy in 1946. When she was about four years old, she was sent to live with a woman known as Auntie. She returned to live with the deceased in 1947. 16Desmond lived with the deceased and Patricia after he was born in 1944 until he was two years old. Desmond was then taken into care by the welfare department. By the time Desmond was he was 4 years old he was sent to live with a family called Sloane in a foster home. He lived with the Sloane family initially at Bexley and later at Bundeena. When Desmond was about 7 years old he was returned to the welfare department and sent to the Berry Boys Training Farm near Nowra. About a year later he returned to live with the Sloane family. Desmond wanted to know about his mother and was told by the Sloanes that she never wanted him. He had a difficult time at the Training Farm and with the Sloane family. 17Desmond went to Jannali Boys High. He left school early and found a job but after a month the truant office came and returned him to school. At the age of 15 and a half, Desmond travelled to Orange, where he started work at an orchard as a general hand. He stayed there for about two years during which time he separated from his foster family. 18When he was 18, Desmond discovered he had a brother, Max and at that stage he particularly wanted to make contact with his real mother. 19In 1966, when he was 21, Desmond managed to track down his mother. He went to visit her at her home at Goodlet Lane, Surry Hills. She showed him photos of his family. Later that day, he met Patricia and she sent him to meet Max. A couple of weeks later he met Judith his half sister. 20Patricia had a difficult time with her mother's family. In 1953, aged 11, a friend of Darcy's sexually assaulted her. When she was aged 12, she was diagnosed with a duodenal ulcer. By 1957, she had left home and school and she worked in a fashion store. 21In 1958, Patricia met Alan Buhagiar and they were married in 1959. Initially they lived in Bondi, but they moved to Canberra in 1961, where there was work available for Alan as a panel beater. 22The deceased asked if they would take Judith to live with them. Judith stayed with Patricia and Alan for about a year, after which they returned to live with the deceased and Darcy. 23Judith also had a difficult childhood. In 1962, aged 15, she left home, moved into a flat in Darlinghurst on her own and commenced working. A year later she commenced a relationship with a person. 24In 1973, she entered into a relationship with Geoffrey Lennie and they had a son, Lawson who was born in 1976. Judith and Geoffrey separated in 1981 and she was not been in any other relationship since that time. 25In 1977, Darcy provided funds for the purchase of the property at Park Avenue, Westmead. The property was purchased in the names of the deceased and Judith as joint tenants. Darcy and the deceased lived in the property until their deaths. Darcy died in 1986 and the deceased in 2008. 26In 1981, Patricia and Alan divorced. Patricia bought a house in Gymea. 27In 1987, Patricia suffered a car accident and when she was aged 51 years she commenced receiving a disability pension. 28In 1993, Patricia sold the house at Gymea and bought a home at Coombabah in Queensland, where she and Desmond resided. 29In 2000, Desmond moved to a housing commission unit at Labrador. However, he moved back into Patricia's house in 2005. 30In March 2006, Judith's son, Lawson had a daughter, Mia Sutton-Lennie. Mia started living with Judith. In 2007 a care order was made in Parramatta Children's Court that Judith have joint guardianship of Mia and that Mia live with her. 31As I have mentioned the deceased died in July 2008. After her death Judith, Mia and Lawson moved to live in the Westmead property. In 2009, Judith was diagnosed with breast cancer and she commenced treatment that included surgery, chemotherapy and radiation therapy. 32In July 2010, Judith was diagnosed with metastatic non-small cell lung cancer. She receives regular chemotherapy radiation. The disease has progressed and it is estimated that she unlikely to survive 12 months from February 2011. Eligibility 33The plaintiffs are eligible persons. In applications under the Act, the High Court has referred to the two stage approach in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 (see also Savic v Kim [2010] NSWSC 1401). 34In Singer v Berghouse Mason CJ, Deane and McHugh JJ stated at 208-210: "The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the "jurisdictional question". .... .... The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc were explained in Bosch v Perpetual Trustee Co Ltd [1938] AC, at p 476. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder (1951) 82 CLR 645, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." 35I will now consider the situation in life of the plaintiffs. Desmond Cyril Drury 36Desmond is 66 years of age. He is single with no dependents. He has modest assets that include a motor scooter valued at $4,000, a box trailer, clothing and tools valued at $2,200. He is currently living on a disability pension of $748.45 per fortnight , which is consumed by his expenses. 37Desmond's health is not good. He has serious and chronic problems with his knees, lower back and neck and shoulders. His shoulders cause him pain, particularly at night when he wakes, every night, at about 3 am because of the pain. He also has arthritis and his left ankle has been broken twice, which also causes him pain. He takes pain killers three times a day. 38Desmond still suffers a great deal of anger and distress related to his unhappy childhood, his relationship with his mother, his treatment in the Berry Boys training home and his treatment by his foster parents. His anger was evident from seeing him in the witness box and he will need to see a psychologist to or psychiatrist to help him deal with these problems. 39Desmond was recently diagnosed with a cancer of the prostate for which he is being treated. He also suffers from reflux. He is a heavy smoker which he believes affects his health but the habit has helped him cope with the anxiety and anger he feels. 40Desmond has dental problems and he needs two bridges for missing bottom teeth. 41Desmond did not contribute to the deceased's estate which passed by survivorship to Judith. Patricia Buhagiar 42Patricia is 68 years of age. She is single and has no dependents. She owns her house in Queensland valued at $450,000, a 1998 Commodore worth at $4,000, furniture worth $5,000 and savings of $4,500. She lives on the aged pension of $671.90 per fortnight which is taken up by her expenses. 43Patricia's health is not good. She has arthritis which affects her shoulders, hands and knees. She has a crushed disc in her back. She takes painkillers every day for that injury. 44She has suffered from depression and anxiety most of her life and she has been on Zoloft for many years. At some stage she was on other anti-depressants, sedatives and the like for many years. She has made about six suicide attempts, the first when she was about fifteen. She takes sleeping tablets every night. She has high blood pressure and cholesterol which are managed with medication. She has angina attacks from time to time. 45She has had laser treatment seven or eight years ago in both eyes for severe glaucoma. She has not been able to afford the cost of follow-up treatment. She takes magnesium for severe cramps at night and medication for reflux. As I have mentioned she had her first ulcer when she was twelve years old. She is also being treated for chronic bronchitis. 46Patricia also has dental problems. Her bottom teeth were knocked out in a motor vehicle accident in the 1980s. She needs to have some dental work done which could require her jaw to be partially rebuilt. Currently she uses use uncomfortable dentures. 47Patricia did not contribute to the deceased's estate which passed by survivorship to Judith. 48It is also necessary to consider the situation in life of others who have a claim on the bounty of the deceased and in this case it is the defendant. Judith Sutton 49Judith is 63 years of age. She is single and has a dependent grand daughter, Mia, aged four for whom she is responsible. 50Judith's assets include the Westmead property worth $700,000, a car worth $100. $1,500 cash and personal effects worth $4,000. 51She receives a disability pension of $662.60 per fortnight and a DOCS contribution of $402 per fortnight for Mia's expenses. Her son, Lawson, has no assets and lives with her. He pays Judith $160 a fortnight to cover some of his expenses. Judith's funds are all expended on her expenses. Unpaid council rates on the Westmead property were substantial at the date of death and Judith is paying the rates by instalments to Parramatta Council. The amount outstanding is $4,000. 52As I have mentioned Judith's medical situation is precarious. Although she is in remission from her breast cancer her lung cancer is not in remission and the disease has progressed and required a change in her treatment. Her survival is said to be generally less than twelve months from the time of the trial. 53Judith needs a level property without steps to live in. She attends Westmead Hospital every three weeks as an outpatient. The side effects of her chemotherapy would make it very difficult for her if she had to move from her Westmead property. Relationship with the deceased 54In their initial affidavits, Desmond and Patricia described the relationship with the deceased as a happy one. However, there was evidence in reply that shows that in fact the relationships were tempestuous on both sides. 55In February 2003, Desmond prepared an application with the deceased to sever the joint tenancy she had with Judith. He obtained the deceased's signature and the application was lodged together with a caveat on the title of the Westmead property. He claimed an interest in his mother's estate. At that time his mother had not died but no doubt the application was designed to give him notice of his mother's death. 56In December 2003, the deceased made a will in which she left the whole of her estate to Judith. The caveat was removed and the joint tenancy was reinstated. 57On 16 March 2004, the deceased made a statutory declaration which is as follows: TO WHOM IT MAY CONCERN I am writing this letter in the case of any of my children, wanting to contest my wishes in my Will. I have had eight children, two of whom have passed away (Kevin Drury and Maxwell Drury). The remaining children are Graham Drury, Colin Drury, Beth Drury, Desmond Drury, Patricia Buhagiar and Judith Sutton. My last partner in life was Eric Sutton of whom I lived with over a period of approximately forty-three years Eric Sutton died in 1986. Eric and myself had a daughter Judith. Eric purchased a property in1977 at 14 Park Avenue, Westmead. Before the property was purchased he advised myself, Judith and Geoffrey Lennie (Judith's partner) that he would buy the house for myself and Judith (our daughter) and would place the property in joint tenancy in my name and Judith's name so that when he passed over I would be able to continue living on the property until my death. The property which Eric purchased plus the contents of the house (of which Eric - known as Darcy and myself, purchased between us) would stay in the home for Judith and her son Lawson. This was agreed to between myself, Darcy and Judith before the property was purchased. There are two children, Patricia Buhagiar and Desmond Drury that have caused trouble and grief in the family. Desmond has assaulted me in the passed [sic]. My daughter Patricia asked to put her jewellery in my safe for keeping. During this time (after Darcy's death) Desmond came to my house wanting the key to my safe saying that Patricia had sent him here to collect her jewellery. I had not heard or had any phone calls from Patricia saying this was so. I would not give him the key to the safe. He then grabbed me by the hair and dragged me up the hallway, he picked me up and slammed my head and body into the wardrobe while saying "the key, the key - give me the key to the safe" I refused, he locked me out of the house into the backyard and proceeded to rob the house. After about two hours he yelled out. "It's all over now you can come in." He drove off in his car. I contacted the police and proceeded with charges against Desmond. The matter went to court. However because of no witness as to what he did to me I lost the case In 2002 Patricia and Desmond came to my house saying that they would take me to Queensland and look after me. They coerced me into signing a paper splitting the property at Westmead into Tenants in Common so that the house could be sold and they would purchase another house in Qld for me. As time went by things were not as they seemed to be. They told me that I would only be able to take six pieces of each crockery and that I would have to leave most of my belongings behind. Desmond said that his son Robert would come and pack the house up and that the items left would have to go to Robert. Desmond and Patricia also wanted me to sign my Power of Attorney over to Desmond. Patricia saying to me that Desmond had her Power of Attorney of which was a lie. Patricia has a four-bedroom house on the Gold Coast. She did not want me to live with her. I had not been to Queensland and said to them, "I am not sure whether I want to go to Queensland, I have not even been to your place for a holiday in all the years you have lived there. Patricia also said to me that I would have to give Desmond money for the help he had given me. I decided not to go. Desmond since then has rung me and said that he is my son and he is entitled to my money and will be down in Sydney when I die to contest my will. He has also written a very degrading letter to me that Judith has in her possession. I also have a letter that my deceased son Max and his partner Laura wrote to me many years ago advising that I need to be careful as Desmond was going to try and get my house. Patricia and Desmond have been having a sexual relationship together since before Patricia's divorce from her husband Allen [sic] Buhagiar. I have slept overnight in Patricia's house when she was living with Desmond in Gymea, Sydney. I saw with my own eyes both of them walking into the same room and sleeping in the one bed together. Members of the family have known for years that Patricia and Desmond have been sleeping and living with each other. Their actions have brought disgrace on the family and myself. When Patricia and Desmond were in Sydney in 2002 Patricia took all the documents relating to the Westmead property out of the safe. I also gave Patricia an Opal ring to look at. She kept the ring and did not give it back to me. Judith is the only one of my children that has come to visit me on a consistent basis. My grandson Lawson has also been coming to visit since he was a child. I rarely hear from my other children and grandchildren. Years pass and I do not hear from them. Each one of my children have already had gifts from me. Colin Drury has been given an Antique lamp. He also took an Antique clock saying he would repair it for me. I did not see the clock for fifteen years and had to ask for him to return it. Graham Drury has been given a Diamond ring. I have also given his wife Mary, money to pay bills and look after his children. Beth Drury has been given Diamond earrings, a Diamond ring and a watch. Desmond has been given money in the past, has robbed me and assaulted me. Patricia has been given a seven stone diamond ring. She has also taken an opal ring from me without my consent. I have also given her money and bought her children clothing often when they were young. I have written this letter with the full intention that my Will be carried out according to my wishes. Josephine Patricia Field" 58The assault allegations described in the incident in the fourth paragraph of the declaration are important. There is also the complaint about splitting the joint tenancy. There is also the extraordinary allegation that Desmond and Patricia were in an incestuous relationship. This is denied in the evidence and there is no suggestion that it ever occurred. 59So far as the assault is concerned, Desmond denied the allegation. Because of what the deceased said to the police, he was charged with assault and apparently the charges were dismissed. There was an order for the deceased to pay Desmond's costs of $2,000. 60It will be noted that the statutory declaration refers to a letter written by Desmond to his mother. The letter was written in 2004 complained about his mother. He referred to allegations that she was known as the town bike and he described her as "a greedy, selfish, lying, grabbing, slut". He said he did not want her to ring him any more. 61In 2004, Patricia wrote to her mother complaining that she "let Darcy flog me [Patricia], mentally and physical[ly] abuse me and the his mate raped me but you [the deceased] never cared nor did anything about it at all." Patricia made threats to take her mother to court and she said that did not want to speak to her mother again. 62The extraordinary history of the deceased's numerous relationships and the lack of care for her children leads me to be careful about accepting the complaints made by the deceased in her statutory declaration. After the court case Patricia agreed that there was a period of eighteen months when she and Desmond did not contact their mother. However, the deceased made contact with Desmond and Patricia and they resumed their relationship. Patricia and Desmond helped the deceased and visited her every month to tidy her house. 63Desmond gave evidence that his mother suggested the caveat because she was frightened that Judith was trying to put her in a home. 64It seems that the deceased was a difficult person. She did not look after of her children at least one of whom was brought up in a foster home. 65Without further evidence, it is difficult to form a conclusion as to the rights and wrongs of the caveat incident. It seems that the assault was something which was made up by the deceased. 66Section 7 of the Family Provision Act provides that if a Court is satisfied that a person is an eligible person "it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought , having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person." 67In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows: "This conclusion directly raises the question of whether the word 'ought' in s 7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator's Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts. ... It seems plain from the comparison of the two Acts, and particularly from s 3 of the 1916 Act and s 7 and s 9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose. The Act draws a distinction between the eligible persons referred to in par (a) and par (b) on the one hand and par (c) and par (d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased person spoken of in s 3 of the 1916 Act and s 7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased. In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin JJ both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that 'many cases suggest that an applicant must show a moral claim ...', he went on to say that this was a gloss on the Act that was unwarranted and inconsistent with the language of the legislative scheme. It seems to me that the introduction into s 7 of the present Act of the word 'ought' in replacement of the words from s 3 of the 1916 Act 'as the Court thinks fit' shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word 'ought' seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par (c) and par (d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par (a) and par (b) although it is unnecessary to decide that in this case." 68Meagher JA (NSWLR at 57) agreed with Priestley JA. 69Meagher JA had previously expressed a view in Hughes v Hughes (Court of Appeal unreported 6 June 1989) (an adult daughter case) that the duty arose to make provision as established in that case as follows: "Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right, but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be." (Emphasis added) 70Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes . 71In Benney v Jones , Mahoney JA at 560 said: "Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1 Where the applicant is a member of the deceased's family, as referred to in the earlier paragraphs of s 6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear." 72In Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, his Honour noted: "It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation." 73Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales ( Scales' case ) (1962) 107 CLR 9. Scales' case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18): "The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. ... In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death." 74In Gorton v Parks (1989) 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales' Case . He said: "Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; ... Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962." 75Bryson J in any event distinguished Scales' case (p 11) on the basis that on the facts before him the plaintiffs: "In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relation. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. ..." 76In Walker v Walker (New South Wales Supreme Court, 17 May 1996, unreported) Young J reviewed the question of moral duty. His Honour reviewed Gorton's case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse as follows: "In Singer's case, a widow who had been married less than one year to a sixty-eight year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at p 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that 'we doubt this statement provides useful assistance in elucidating the statutory provision. Indeed, references to 'moral duty' or 'moral obligation' may well be understood as amounting to a gloss on the statutory language'. They then say 'the determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty." 77Young J also observed: "In Fraser's case, Kirby P at p 29 said that 'I do not consider that it would be safe for this court, or other courts in this State, to disregard the obiter dicta in Singer v Berghouse concerning 'moral duty.' However, his Honour's decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law 'either by the observations of the majority in Singer or by the High Court's reference, in the footnote to what Murphy J said earlier (p 27).' Handley JA thought that the dicta in the High court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words 'moral claim' in decisions under this Act. Sheller JA again did not consider that the High Court's suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p 42, 'the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant's case but not alone sufficiently to justify an order in the claimant's favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order." 78The concerns expressed about any change in the law as a result of Singer v Berghouse were recently put to rest by the High Court in Vigolo v Bostin [2005] HCA 11 AT 25, 74-75 and 121. 79In Walker v Walker (at 27) Young J noted: "I do not consider that there is any purpose in analysing whose fault it was that the state of non--communication came into place. In family relationships, hurts are often inflicted or suffered some times consciously, some times unconsciously. Sometimes a young child is brainwashed by a custodial parent to consider that the other parent has inflicted some harm, which is all in the mind of the custodial parent. It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between. The important matter is not fault but whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff. Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant..." 80These words were recently approved by Ipp J in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 when he said: "112. I agree with his Honour's remarks, although I would express the rider that, often, where an applicant is a person within paragraphs (a) or (b) of the definition of 'eligible person' in s6(1) of the Act, proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his Honour expounds." 81This view was reinforced recently in Nicholls v Hall [2007] NSWSC 356 where the court said: 43 There are some statements in the cases that could be understood as meaning that, if there is nothing more than "bare paternity" in factor (1), the relationship between the applicant and the deceased, then the applicant cannot succeed. In our opinion, such an understanding would be plainly wrong. Even if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors (that is, needs, size of estate and lack of competing claims), a court could find that that child was left without adequate provision for proper maintenance. 44 Such a view is supported by what Holland J said in Kleinig v. Neal (No.2) [1981] 2 NSWLR 532 at 540: If it is a case of a parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned for the child's welfare. We should make it clear that, in this discussion of "bare paternity", we are not intending to include a mere sperm donor: in terms of Holland J's statement, it is the persons who make use of the sperm rather than the sperm donor who are responsible for bringing a child into the world. 45 Our view is also supported by what Bryson J said in Gorton v. Parks (1989) 17 NSWLR 1 at 9-10, to the effect that "the bare fact of paternity" is "of very great importance in morality". We agree with Bryson J's justification for departure from what Dixon CJ said on the matter in Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 CLR 9 at 18-20, as conforming to changing beliefs in the community about moral duties to children. 46 It is supported also by what Ipp JA (with whom Tobias JA and Basten JA agreed) said in Palmer v. Dolman [2005] NSWCA 361 at [112], to the effect that where an applicant is a child, proof that the applicant is a person in need will often be sufficient to justify an order. 47 We accept there is a suggestion to the contrary in Hughes v. Hughes (NSWCA 6 June 1989) where Meagher JA (with whom Hope JA and Samuels JA concurred) said this: Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right, but from the general circumstances of the case: namely, parenthood, the performance of normal filial duties in the ten years after she left school and in the two periods between her early trips and in her professed and continued willingness to be of whatever assistance to her father she could be. 48 We do not understand an applicant to have a "right" in any clear sense, in any event. It is only if an applicant satisfies the Court that he or she has been left without adequate provision for proper maintenance, and satisfies the Court that provision ought to be made, that it then can be said, in a loose sense, that the applicant has a right to an order. However, that right must depend, not merely on matters concerning the relationship between an applicant and the deceased, but on matters concerning the other three elements that we referred to, namely the applicant's needs, the nature and extent of the deceased's estate, and other legitimate claims. We do not think the passage from Hughes v. Hughes should be read as meaning that entitlement can never be established if the only factor that appears in the relationship aspect of the claim is the bare fact of parenthood." 82When one considers the whole of the evidence ones sees that the relationships between Desmond, Patricia and the deceased are turbulent. Judith's relationship with the deceased was different. She does not seem to have been affected by the abuse as a child, although her mother allowed her to leave home aged fifteen years. 83When one looks at the relationships it seems clear that Desmond had cause to feel upset and angry at his upbringing. Patricia had the same feelings - her mother's boyfriend's friend raped her at a young age. It is not surprising to see how these difficulties and frustrations came out in the letters of complaint and the wild accusations. This situation seems to occur on all sides and in my view, given the fact that relationships resumed after 2004, the actions of Desmond and Patricia are such that they should not bar them from relief. Naturally, the fact that the relationships were turbulent and difficult will have an effect on the nature of any provision to be made for Desmond and Patricia. Desmond's claim 84Desmond gave evidence that he needs to see a psychologist or a psychiatrist which would cost $150 to $200 per session. The evidence does not indicate the extent or time needed for the treatment. He says his shoulder problems can be fixed by an operation which would cost between $40,000 to $50,000. There is no documentary evidence in respect of the operation. He requires $10,000 for dental work which is not particularised anywhere in the evidence. In addition he would like to take a holiday at a cost of $7,500 for two people. He would like to buy a new car for $49,000 and a caravan for $34,000. 85This case is one where there is a small estate. The plaintiffs only seek to have the deceased's half share of the Westmead property declared notional estate. After costs and selling costs, the estate will be a little less than $300,000. In such a small estate provision for holidays and new cars is probably not appropriate. Patricia 86Patricia suggested she would like $800 to see a specialist to check her eyes and carry out any further laser therapy. She would also like several thousand dollars for a dentist to fix her bottom jaw. She would also like to see a psychologist at a cost between $150 and $200 a session to address her depression and anxiety. She would also like to take a holiday. 87The fundamental problem with the claims is that any provision now will result in the sale of the Westmead property where Judith is living. Judith has a limited life expectancy and she has a real need to continue in her home to enable her to receive treatment as long as she wishes. 88In these circumstances, it would seem that any provision for the plaintiffs would have to be structured in such a way that the provision did not take effect until after Judith's death. Part of the property will no doubt pass for the benefit of her son, Lawson, and her granddaughter, Mia. Judith would be obliged to make some provision for Mia as she is obliged to look after her. Mia will be five or six when Judith will not be here to care for her. Provision will probably have to be made for in rental accommodation. 89There is a problem with the lack of evidence in respect of the cost of future psychology and psychiatry treatment that Desmond and Patricia clearly need. 90In my view the appropriate order is that Desmond receive a legacy of $100,000 and Patricia receive a legacy of $75,000 payable on the death of Judith. 91I direct the parties to bring in short minutes to reflect my judgment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2011