Cook, Michael Knox Norton, by his tutor Richard D’Apice v Michael James Harris [2015] NSWSC 2147

Supreme Court New South Wales

Medium Neutral Citation: Cook, Michael Knox Norton, by his tutor Richard D'Apice v Michael James Harris [2015] NSWSC 2147 Hearing dates: 30 October 2015 Date of orders: 30 October 2015 Decision date: 30 October 2015 Jurisdiction: Equity - Family Provision List Before: Brereton J Decision: Release of rights approved. Catchwords: SUCCESSION – family provision and maintenance – release of rights to apply for family provision order – (NSW) Succession Act 2006, s 95 – appropriateness of order to be assessed from releasor's perspective – prima facie appropriateness of granting inter vivos release where settlement does not appear to be improvident – where prudent and advantageous for defendant to give release – where terms of release are fair and reasonable – where defendant has taken and given due consideration to independent advice. Legislation Cited: (NSW) Succession Act 2006, s 95, s 95(3) Category: Principal judgment Parties: Michael Knox Norton Cook by his tutor Richard D'Apice (plaintiff) Michael James Harris (defendant) Representation: Counsel: G Johnston (plaintiff) G Ulbrick (solicitor) (defendant)

Solicitors: Harris & Company (plaintiff) G&D Lawyers (defendant) File Number(s): 2015/285693

Judgment (ex tempore) 1. HIS HONOUR: By summons filed on 30 September 2015, the plaintiff Michael Knox Norton Cook, by his tutor Richard d'Apice, seeks an order pursuant to (NSW) Succession Act 2006, s 95, approving a release of rights to make an application for a family provision order out of his estate by the defendant Michael James Harris, his former domestic partner, they having, according to the determination of the Family Court of Australia in a proceedings between them, resided in a domestic relationship between 1991 and 2010. 2. The present application is made in the context of a settlement of the proceedings between them in the Family Court of Australia wherein that court has, by consent, made orders – subject to the making of a s 95 order by this court – that the plaintiff pay the defendant the sum of $885,000, and otherwise declaring each party to be the sole and beneficial owner of all property in his respective possession and custody or control. That will bring to an end proceedings between them in the Family Court which have already been the subject of an unsuccessful application for summary dismissal and an unsuccessful appeal to the Full Court on jurisdictional issues relating to the existence of the relationship at a relevant time. 3. The plaintiff is many years older than the defendant, and suffers from dementia on account of which he is represented in these proceedings by a tutor. From the plaintiff's perspective, the release will not only bring to an end the dispute in the Family Court without further litigation and cost, but will leave him at liberty to deal with the remainder of his substantial estate without making further provision for the defendant. 4. On an application of the present nature, however, it is essentially the releasor's – that is, the defendant's – position that is of importance. For the defendant, approval of the release will finally resolve the Family Court proceedings and enable the order that has conditionally been made in his favour to come into effect. He is presently in very modest circumstances, and the benefit of that order will effect a substantial improvement in his current position. It will also relieve him of the burden and cost of further litigation in the Family Court. 5. The circumstance that the Family Court has, by making the consent order, effectively indicated that it considers it an appropriate resolution of the financial disputes between the parties relieves me of the necessity to consider in detail the respective roles, contributions and needs of the parties which might otherwise have fallen for consideration. That said, the evidence tends to suggest that the defendant's contribution, though not to be disregarded, was a distinctly minority one in terms of the whole of the plaintiff's substantial estate. 6. Where an inter vivos release of this kind is proposed in the context of a settlement of inter vivos financial proceedings between domestic partners, it is almost always appropriate to approve the release if the inter vivos settlement does not appear an improvident one. That is because it is generally desirable that when relationships break down, the financial obligations arising from them can be finally and forever resolved, leaving the parties to live the rest of their lives unshackled by obligations arising out of past relationships. 7. I am satisfied that it is to the advantage of the defendant to give the release contained in the deed of release financially (in that it is given in consideration of the receipt of the benefit of the orders of the Family Court, to which I have referred) and otherwise in that it will bring to an end the Family Court litigation and the emotional as well as financial costs that accompany it. 8. I am satisfied that it is prudent for the defendant to make the release, given the Family Court's acceptance that the overall settlement is an appropriate one in the circumstances and given what the evidence discloses of the relative and respective roles and contributions of the parties to the relationship. For substantially the same reasons, I am satisfied that the provisions of the agreement to make the release are fair and reasonable, the agreement essentially being in consideration of the Family Court settlement. 9. I am satisfied that the defendant has taken independent advice in relation to the release and has given due consideration to that advice. 10. Accordingly, pursuant to Succession Act, s 95(3), the court, by order, approves the release contained in paragraph 2 of the deed of release of rights under s 95 of the Succession Act 2006 dated 5 August 2015 between the defendant as releasor and the plaintiff as releasee in relation to the whole of the estate and notional estate of the plaintiff.