Butler v Tiburzi - [2016] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BUTLER v TIBURZI
[2016] SASC 108
Judgment of The Honourable Justice Lovell
26 July 2016
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN
Claim by adult daughter of testator - majority of estate left to the defendant - whether the daughter has been left without adequate provision - weight to be given to estrangement.
The defendant did not complete her evidence - medical explanation rejected - no application was made to strike out the defence - weight to be given to the evidence of the defendant, in particular, the length and strength of her relationship with the testator - competing moral claim of defendant.
Held: Allowing the application. The daughter has been left without adequate provision for her proper maintenance, education or advancement in life - further provision made.
Inheritance (Family Provision) Act 1972 (SA) s 7, referred to.
Parker v Australian Executor Trustees Limited [2016] SASC 64; Worladge v Doddridge (1957) 97 CLR 1; Brennan v Mansfield [2013] SASC 83; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; White v Barron (1980) 144 CLR 431; Andrew v Andrew (2012) 81 NSWLR 656; McCosker v McCosker (1957) 97 CLR 566; Goodman v Windeyer (1980) 144 CLR 490; Bowyer v Wood (2007) 99 SASR 190; Lloyd-Williams v Mayfield [2005] NSWCA 189; Taylor v Farrugia [2009] NSWCA 801; MacGregor v MacGregor [2003] WASC 169; Burke v Burke [2015] NSWCA 195; In re Allen (Deceased), Allen v Manchester [1922] NZLR 218; Grey v Harrison [1997] 2 VR 359; Ford v Simes [2009] NSWCA 35; Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; Kleinig v Neal [1981] 1 NSWLR 462; Mann v Starkey (2008) NSWSC 263, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"family provision", "proper", "adequate", "estrangement"

BUTLER v TIBURZI
[2016] SASC 108
Civil
LOVELL J.
Overview

On 30 April 2013 Kevin John Cock (“the testator”) died aged 88 years. He was survived by his daughter Susan Butler (“the plaintiff”) and son. The testator had been divorced since the mid-1970s and never remarried.
By his will, made on 15 February 2013, the testator bequeathed $50,000 to each of his two children. The testator also gifted to the plaintiff the contents of a shed, which has been given an estimate by the defendant of $5000. He also made other bequests and these are not contested. The majority of the estate, including the residue, was left to the defendant and executor, Tamara Tiburzi (“the defendant”).
The plaintiff has made an application pursuant to section 7 of the Inheritance (Family Provision) Act 1972 (SA) (“the Act”) that further provision be made for her out of the estate. The plaintiff is the only applicant. At trial the defendant did not complete her cross-examination. Her reliability and credibility became issues at trial.
The will
The testator left the majority of his estate to the defendant. He bequeathed gifts in the following order in the will:
1.   $50,000 to his son Kenneth John Cock;
2.   $50,000 and the shed contents at 18 Ethel Street Forestville to his daughter Susan Leah Butler;
3.   $100,000 to his sister Daphne Estelle Quirini;
4.   $5000 to his friend Congying Huang;
5.   $5000 to his friend Kent Mayfield;
6.   $100,000 on trust to the defendant’s children.
These gifts are not contested.
Size of the estate
As discussed later in these reasons the defendant’s cross-examination was not completed. Thus the evidence of the defendant as executor was not completed. The evidence about the current size of the testator’s estate is not satisfactory.
The net estate disclosed by the executor when obtaining the grant of probate on 21 October 2013 was $1,536,969.85. The defendant, as executor, filed an affidavit on 24 September 2015 estimating the net value of the estate as being $1,567,850.55. Legacies are to be deducted from this figure.
The actual value of the estate cannot be calculated precisely. I accept the submissions of Mr Edmonds-Wilson on behalf of the plaintiff regarding how to approach the matter given the difficulties. First, the defendant had used when obtaining probate the Valuer-General’s valuations in relation to the two properties. The evidence from Herron Todd White, property valuers, establishes a higher value. Those higher figures should be used. Further it is unknown how the defendant has treated the Glandore property and whether she has had the benefit of letting the Glandore property and earning an income stream. Mr Edmonds-Wilson also submitted that the defendant in her second executor affidavit reverses her earlier evidence as to whether or not the testator’s motor vehicle fell within the estate or not. These issues cannot be satisfactorily resolved.
I will proceed on the basis that the distributable estate in respect of which further provision may be ordered is around $1.4 million.
Legal test
The plaintiff in this case, being a biological child of the testator, is an eligible claimant under the provisions of the legislation. The plaintiff bears the onus of proof in satisfying the Court on the balance of probabilities the justification for the claim.
I recently discussed the applicable principles in Parker & Ors v Australian Executor Trustees Limited.[1]
[1] [2016] SASC 64.
The principles governing applications for family provision in estate matters are set out in section 7 of the Act, which provides:
7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person
(1)Where—
(a) a person has died domiciled in the State or owning real or personal property in the State; and
(b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
The purpose of the Act is to permit a court in certain circumstances to displace a testator’s dispositions. It does not impose any limitation on a testator’s power of disposition but if the statutory conditions are satisfied a court is empowered to alter a testator’s disposition to produce a result that is consistent with the purpose of the Act. The legislation is remedial in character and has been construed to give the most complete remedy which the phraseology will permit.[2]
[2] Worladge & Anor v Doddridge & Ors (1957) 97 CLR 1, 9.
The inquiry as to whether adequate provision has been made involves a two-stage process. The first stage calls for a determination of whether the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life (this has been referred to as the “jurisdictional question”). The second stage, which only arises if that determination is made in favour of the plaintiff, requires the Court to decide what provision ought to be made out of the testator’s estate for the plaintiff.[3]
[3] Brennan v Mansfield & Ors [2013] SASC 83; Singer v Berghouse (1994) 181 CLR 201.
In relation to the two stage process Gleeson CJ in Vigolo v Bostin[4] stated:
What has been described as the two-stage approach to the exercise of such a statutory power was explained by this Court in Singer v Berghouse, and is not in controversy in this appeal. It is evident that, depending upon the stage of consideration involved, the following judgments are required by the terms of s 6. What kind of provision for the matters referred to in that section should be regarded as adequate? What should be regarded as proper maintenance, support, education or advancement in life in the case of a particular applicant? If the court comes to exercise its discretion to make an order in favour of an applicant, what should it regard as fit provision for the purposes referred to in the section? Upon whom should the burden of such an order fall?
(Footnotes omitted)
[4] (2005) 221 CLR 191 [5].
Thus when considering the first stage of the test the question is whether, in all the circumstances of the case, it can be said that an applicant has been left by the testator without adequate provision for his or her proper maintenance, education or advancement in life. The second stage involves the Court exercising its discretion in all of the circumstances of the case.
The twin tasks facing a court are similar. The first stage involves the application to the facts of a legal criterion although that involves a value judgment by the Court. The second question involves the exercise of a judicial discretion. Although they are separate questions they may in many circumstances come close to each other and a favourable determination of the first may substantially influence the answer to the second. However, the first question is to be decided as at the date of death of the deceased and the second as at the date of any order.[5]
[5] White v Barron (1980) 144 CLR 431; Andrew v Andrew (2012) 81 NSWLR 656.
The Privy Council in Bosch v Perpetual Trustee Co Ltd[6] in relation to the words “proper” and “adequate” stated:[7]
The use of the word “proper” in this connection is of considerable importance. It connotes something different from the word “adequate”. A small sum may be sufficient for the “adequate” maintenance of a child, for instance, but, having regard to the child’s station in life and the fortune of his father, it may be wholly insufficient for his “proper” maintenance. So, too, a sum may be quite insufficient for the “adequate” maintenance of a child and yet may be sufficient for his maintenance on a scale that is “proper” in all the circumstances. A father with a large family and a small fortune can often only afford to leave each of his children a sum insufficient for his “adequate” maintenance. Nevertheless, such sum cannot be described as not providing for his “proper” maintenance, taking into consideration “all the circumstances of the case” as the subsection requires shall be done.
[6] [1938] AC 463.
[7] Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 476.
The relationship between “proper” and “adequate” was discussed in McCosker v McCosker[8] where Dixon CJ and Williams J stated:[9]
…As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) the word “proper” in this collocation of words is of considerable importance. It means “proper” in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance, education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.
[8] (1957) 97 CLR 566.
[9] McCosker v McCosker (1957) 97 CLR 566, 571.
Thus it can be seen that “adequate” and “proper” are relative concepts. A court must come to a conclusion on the basis of its “own general knowledge and experience of current social conditions and standards”.[10]
[10] Goodman v Windeyer (1980) 144 CLR 490, 502.
As Debelle J stated in Bowyer v Wood & Ors:[11]
It is well established that the word “proper” is not intended to give the court power to rewrite the will in accordance with its own ideas of justice and fairness. Instead, the use of the word “proper” is intended to require the adequacy of the provision which has been made to be determined by reference to all relevant circumstances including the size of the estate: …
[11] (2007) 99 SASR 190, 202 [41].
Adequacy of the provision that has been made is not to be decided in a vacuum or by simply looking at the question of whether an applicant has enough upon which to live. It will depend upon all of the relevant circumstances of the case including age, means and competing claims of other potential beneficiaries.[12]
[12] Vigolo v Bostin (2005) 221 CLR 191 [122].
The expression “advancement in life” is not confined to an advancement of an applicant in his or her younger years.[13] The principles applicable to a claim by an adult son or an adult daughter are the same that apply to other claimants.[14]
[13] Lloyd-Williams v Mayfield [2005] NSWCA 189.
[14] Bowyer v Wood& Ors (2007) 99 SASR 190.
Where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies including a lack of adequate superannuation funds.[15] An adult child’s lack of reserves to meet the demands of advancing years, particularly of ill health, is a relevant consideration.[16]
[15] Taylor v Farrugia [2009] NSWSC 801.
[16] MacGregor v MacGregor [2003] WASC 169 [179].
In Vigolo v Bostin[17] the majority of the High Court held that when the jurisdictional question was being considered a court could have regard to considerations of a moral claim and moral duty. They are considerations which connect the general but value–laden language of the statute to the community standards and give it practical meaning.[18] However, a moral claim cannot be a claim founded upon considerations not contemplated by the Act. A court should not rewrite the will simply by reference to notions of fairness.[19]
[17] (2005) 221 CLR 191.
[18] Bowyer v Wood& Ors (2007) 99 SASR 190 [44].
[19] Worladge & Anor v Doddridge & Ors (1957) 97 CLR 1.
The question of estrangement was an issue in the trial. Estrangement of a child and parent should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement. However it is a factor that can be taken into account. The Court should take into account the whole of the circumstances regarding the relationship. It is for the Court to evaluate all the relevant circumstances, including a period of estrangement and the circumstances of that estrangement, when considering the jurisdictional question.[20]
[20] Burke v Burke [2015] NSWCA 195.
Determination of the second stage of the enquiry, should it arise, involves similar considerations to that under the first. As the Court needs to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, this assessment will largely influence the order which should be made.[21] The Court will have to take into account other persons who have a moral claim on the estate.[22]
[21] Singer v Berghouse (1994) 181 CLR 201, 210.
[22] In re Allen (Deceased); Allen v Manchester & Anor [1922] NZLR 218.
The basic principle the Court should consider is that explained by Salmond J in the case of In re Allen (Deceased); Manchester & Anor;[23]
The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances. [24]
[23] [1922] NZLR 218.
[24] [1922] NZLR 218, 220.
This test has been followed and applied many times by the High Court.
The exercise of the discretion has been compared with “assessing damages” in personal injury matters and the “instinctive synthesis” approach to sentencing in the criminal courts. What is required is that a court take into account all relevant circumstances and give them due weight.[25]
[25] Grey v Harrison [1997] 2 VR 359.
Bearing those principles in mind I now turn to consider the situation of the plaintiff.
The plaintiff’s circumstances
The testator had “very high aspirations for his children.”[26] His son worked as a high school principal both in Australia and Indonesia. The plaintiff has worked in numerous high-level jobs both academically and in business. Mr Edmonds-Wilson submitted on behalf of the plaintiff, that the testator made his last will having an erroneous understanding of the plaintiff’s financial circumstances. The testator told his solicitor that his children were “fairly well off financially.”[27]
[26] T 267.
[27] Exhibit P5 p 33.
Thus, the financial position of the plaintiff was an important issue in the case. It is therefore necessary to set out in some detail the background facts in relation to the plaintiff’s work and life.
The plaintiff’s evidence
Early schooling
The plaintiff’s schooling was disrupted. She attended some 12 primary schools growing up as a child as the family travelled a lot with the testator’s work. The plaintiff’s brother never travelled with the family as he always stayed with a relative. In about 1960 the testator worked for a building company in Woomera. They lived in rental accommodation owned by the company. They stayed in Woomera for about six years. The plaintiff’s brother did not live with them. He boarded with his mother’s sister and he continued his secondary education at Unley High School in Adelaide.
When the plaintiff was in Year 10 she moved back to Adelaide with her mother. The testator continued to work in Woomera. He would be gone for weeks at a time. He would not leave the plaintiff’s mother with enough money for them to live on. The plaintiff’s mother would have to borrow money to pay for household items. It was not until the plaintiff’s mother left her father that she obtained employment for the first time. The plaintiff’s brother came back to Adelaide to live with them for his last year of university. He later moved to Kadina for his first teaching job in 1971.
High school and work
Having returned to Adelaide the plaintiff attended Marion High School for her Year 11 and 12 schooling. In Year 11 she was awarded a Commonwealth scholarship. The plaintiff then attended Bedford Teachers College for two years but at that time she did not complete her tertiary studies. During this period her parents moved back to live in-between Woomera and Whyalla. At age 19 she obtained her first teaching job at St Mary’s College. She taught in areas of science, maths and English at Year 8 to 10 levels. In 1970 at the age of 21 the plaintiff married. The testator paid for the wedding. In September 1972 the plaintiff obtained a part-time teaching job at Annesley College teaching maths, science and computing at a senior level. She worked there for some 14 years although not continuously.
Work and travel
In about 1976 the plaintiff and her husband (“the Butlers”) went overseas for the first time. With their daughter Danielle they hired a campervan and went on a seven-month trip to Europe. The plaintiff took unpaid leave from Annesley College. On their return they worked hard and saved money. They did a lot of work with the Australian-Italian Association which resulted in them being awarded scholarships to attend university in Perugia to study Italian. The plaintiff then obtained a teaching job at the international school in Rome. After being away for a year, the plaintiff returned to Australia so Danielle could continue her schooling. However her husband did not return with them as he wished to continue his studies. He eventually returned to Australia for a couple of months but then returned to Tuscany. The plaintiff and her husband separated in about 1982.

The plaintiff later obtained employment with Cabra College where she worked for about three years. She set up some of the college’s first computer classrooms. She also worked with the Senior Secondary Assessment Board of South Australia (“SSABSA”) writing curriculum material and was promoted to chief examiner with SSABSA for computing subjects. The plaintiff has post-graduate qualifications in computer science from the University of South Australia (“UniSA”); although the precise qualification was not made clear. Her post-graduate studies later led to her working as a lecturer part-time for UniSA. The plaintiff studied for a PhD for two years although she did not complete this qualification. It was clear from the evidence that the plaintiff is an intelligent and articulate person.
Post-divorce
In 1984 the Butlers divorced. Her ex-husband kept the family home in Netherby and she received a divorce settlement of $12,000. The plaintiff used the money to purchase a “very run-down”[28] property at Parkside for $51,000 after borrowing the balance of the purchase price. The testator assisted her with renovating the house. He gave her salvage timber to use from his work at the council. He arranged building contractors that owed him favours to do work on the property.
[28] T 38.
In about 1989 the plaintiff’s daughter, Danielle, moved to Townsville to commence her tertiary studies at James Cook University. The plaintiff was approached by an “old boyfriend” to go to Japan. He had obtained a scholarship and had an extra plane ticket. The plaintiff went to Japan and rented out her property at Parkside. Whilst she was absent the testator was involved in managing her property. All mail was redirected to her father’s address. He paid all the rates and expenses that were related to the renting of her property. Whilst in Japan, the plaintiff obtained employment with a company called MMS International where she worked for two years. She also did work for the British Embassy as part of this employment. The plaintiff maintained contact with her father during her time in Japan. At one stage he visited her in Japan and he stayed for about 10 days.
After working in Japan the plaintiff went to Hong Kong for a few months to work. In about 1995 she moved to Sydney for work. There she obtained employment as a bid manager with a company called Sun Microsystems. She worked there for about three years. During this time the plaintiff lived in rental accommodation. She stayed in contact with the testator who was still looking after her property in Parkside. When the plaintiff came back to Adelaide to visit Danielle she would stay with the testator.
In about 1996 Danielle completed her university studies. The plaintiff took her on an overseas trip to Europe. They visited Spain, France and Italy. In Italy they visited the plaintiff’s ex-husband. While in Rome the plaintiff obtained employment and she resigned from Sun Microsystems. This employment was short-lived. The plaintiff was unhappy with her job in Rome and soon left. The testator provided some financial assistance to her during this difficult period. She came back to Australia to live and work again.
Move to Sydney
In about 1997 the plaintiff sold her Parkside property and moved to Sydney. The property was sold for about $200,000. After discharging the mortgage the balance of approximately $140,000 went into a fixed term deposit. Whilst in Sydney the plaintiff worked for a company called Information Systems Group Pty Ltd (“ISG”). She became a director and consultant of the company.[29] The appointment officially ceased in April 1999, however her duties as director ceased earlier due to a conflict of interest issue.
[29] Exhibit D16.
Through her contacts at ISG the plaintiff secured a job as a project director with New South Wales Health (“NSW Health”) in 1997. The income she received from NSW Health was paid to her through a recruitment consultant. She worked there for about a year. She earned $1100 per day for most of the year, but due to problems with her recruitment consultant she lost approximately $45,000 in income.
Ecomm.Unity Planet Pty Ltd
In 1999 the plaintiff established Ecomm.Unity Planet Pty Ltd (“Ecomm”). She and her business partner, Karen Dunwoodie (“the Directors”) spent approximately a year meeting with investors and conducting research of the market. Both put their own time and money into starting up the company. On 17 March 2000 the company was registered. Essentially it was a “dot.com” company which meant that the Directors conducted the business on-line from their respective homes.
At one stage Ecomm secured a short term contract with Telstra. This work paid the Directors about $2400 per day. The plaintiff said that there was a three-month period where the Directors earned $5000 a day for work. As part of their company the Directors were also doing work with the United Nations for which the company received $80,000. The plaintiff received half of this money. Unfortunately, Ecomm struggled financially during the global financial crisis as the market slowed down and contracts were not honoured. The plaintiff started “eating through”[30] her savings in order to live.
[30] T 119.
Return to Adelaide
In 2002 the plaintiff returned to Adelaide. Following the collapse of Ecomm “things were starting to get very, very tight”[31] with money. The plaintiff moved into her brother’s house as he was living in Jakarta, Indonesia at the time. For the first three years she shared the house with another lady. The plaintiff did not pay rent. In 2011 the plaintiff’s brother and his wife came back to Australia and since that time the plaintiff has lived in paid rental accommodation.
[31] T 119.
Knowledge Global Pty Ltd
In 2002 the plaintiff started Knowledge Global Pty Ltd (“Knowledge Global”). The company was registered on 9 October 2002.[32] She used her own resources to establish the company. In broad terms, the company assists other organisations to measure sustainability, evaluate energy efficiencies and trade in carbon credits. The company also developed software and other means to facilitate environmental sustainability.[33] Between October 2002 and June 2003 the plaintiff did some consulting work with Spatial Australia through the University of Adelaide.[34] She earned $10,000 for this work. The money was paid directly to Knowledge Global.[35] Through this work the plaintiff met the chairperson of Spatial Australia Ross Sharman (“Mr Sharman”). In 2007 Mr Sharman became a director of Knowledge Global.
[32] Exhibit D16 p 46.
[33] Exhibit D21 [37].
[34] T 120.
[35] T 261.
Sustain Agility Pty Ltd
After establishing Knowledge Global the plaintiff began developing software technology for Sustain Agility Pty Ltd (“Sustain Agility”). She did this work for about a year. She invoiced all work under Knowledge Global.[36] The company received about $43,670. In 2007 the plaintiff became a director of Sustain Agility.[37] In 2008 a co-director injected $50,000 capital into Sustain Agility to help the company look for clients to sell the software developed under Knowledge Global. Knowledge Global received $42,000 of the $50,000 capital. In 2010 the plaintiff received $1000 per month for a six-month period for work done for Sustain Agility.
[36] Exhibit P36.
[37] Exhibit D16 p 18.
In 2012 the plaintiff resigned as a director of Sustain Agility although she had stopped work with Sustain Agility before that. Her shares in the company were transferred to one of the other directors. In February 2015 the company was deregistered.
Value of Knowledge Global
The plaintiff is the managing director of Knowledge Global. She used to have face-to-face contact with clients, however, due to her health issues she started to make mistakes with documentation. Her medical ailments cause her to become fatigued. She has not been able to work much in the business since 2013. Her co-director, Mr Sharman now does 98 per cent of the work involved in running Knowledge Global.[38] The plaintiff receives the same income as Mr Sharman although she feels that this situation cannot continue. There is some pressure from her co-director for him to take over the majority shareholding.
[38] T 69.
During submissions much was made by Mr Ower as to the question of the value of the company Knowledge Global. I will deal with that evidence in some detail.
During the course of cross-examination the plaintiff gave evidence that in around 2005 a valuation of Knowledge Global was undertaken by a firm in Victoria relating to the technology model known as “EMMA”. This valuation was not based on the number of clients because there were no clients at that point.
The plaintiff said that the valuation related to the intellectual property in the company and the data model and its relevance to the market at that time; in other words its saleability. The plaintiff said that she could not remember how much the valuation was for because “it doesn’t actually have relevance for today”.[39]
[39] T 150 lines 34-35.
The plaintiff explained that the figure arose as “they think this type of technology would be worth to the market if it was developed into a product, so what it might mean in terms of its sales and where it sits in relation to similar technologies in the market.”[40] The plaintiff stated it was not an accounting firm that did the valuation and she said it related to the value of the technology and what it “might be contributing to the business community”.[41] She could not recall the name of the consultants.
[40] T 151.
[41] T 151.
The plaintiff again emphasised that the “value of that technology at that time is not relevant to today”.[42]
[42] T 152.
The plaintiff expanded on this topic and stated:
I’m not sure of the figure that was quoted in this report and I need to look at the report to give you an accurate figure but whatever that figure might be is not relevant today because things have moved on politically, the type of software that is used, the type of technologies that were projected to be deployed in the creation of that application are not relevant. The technology has moved on enormously in the last nine, 10 years.[43]
[43] T 152 lines 25-33.
When pressed in cross-examination about whether there was only one valuation or more than one the plaintiff stated:
There has only ever been one valuation and really in a market of if you took it to say business you know America or whatever, that would not be considered as true valuation because most valuations are based on what income it brings through a client. We’ve not had the number of clients to illustrate its value in the market because the technology, that one in particular at that time which was my invention, just never reached market except as I described yesterday in Centennial Coal, so the valuation is not really based any more on the data model as it was. Artificial and knowledge-based technologies have moved on so far that they are embedded in Google and Amazon and that type of technology and that’s really grown over that time. So those technologies are deployed in most developments these days.[44]
[44] T 153 lines 14-29.
I reject Mr Ower’s submissions that in some way the plaintiff was evasive in her answers. She could not have been clearer. This was not a valuation in the sense that it had been valued by an accountant. It was a value put on the company at its start-up time based on technology which has simply become outdated. The plaintiff was at pains to point out that it bore little relevance to what the company was worth in today’s terms.
Mr Ower in cross-examination again returned to the question of the value of Knowledge Global. He asked:[45]
QBut what did you mean ‘Of recent it is anticipated it might be worth 1.5 million’.
AWell as I sought to emphasise yesterday that the valuation that was taken many years ago on the data model, not on the technology just on the data model, like a piece of paper, was seen to contain high intellectual property. Today, that intellectual property has lost value because there are many applications out there in the market doing the same thing. So, it no longer has that value that they anticipated at that time and it certainly doesn’t have value today because it doesn’t have the client base. Competitors that came into the market after we were in the market, we couldn’t move fast enough because we – it was two of us so it’s a small company – obviously it’s a small company, we couldn’t move fast enough to get it into the market and make the sales. Others that entered the market from bigger firms with carbon valuation and quantification software got into the market faster, quicker, more swiftly. There, each time we lost value so we couldn’t position ourselves. So that valuation is not the same. So we just go by really what – who will invest. We can’t get investors. We look at what money comes in and goes out, as you pointed out yesterday, and so we say ‘about a million, about 1.5’.
QWell who says ‘about a million, about 1.5 million’; you and Mr Sharman.
AYes, because we haven’t had a formal valuation done. It would cost a lot of money. The quote is between 10 and 20,000. As you can see from our books we cannot afford that so we know – we know because we are trying to attract investors that when they look at our records and our tax and profit loss they are not interested in investing.
QAnd is that what you tell investors that you and Mr Sharman consider the business to be worth 1 and $1.5 million.
AYes. We can’t hide that fact. They ask us about the value of the company. We can’t hide it. It’s in the records as we are presenting it. An investor looks at the same documentation that you are looking at and if the clients aren’t there and the tax profit is not there then they see it as high risk, and therefore it is risk. We try and diminish that risk by getting more clients and working out a way around the market, but this has been going for 16 years now. I was just over 50, I’m 66 and we are still – we know what position we’re in. We know that it’s just sustaining us but, as I said previously, we live in hope.
[45] T 221 line 21 – T 222 line 31.
It should be noted that the questions and answers just described were based on the plaintiff’s comment that they had not had a formal valuation done. She pointed out that they were trying to attract investors who, when they looked at the financial records, lost interest in investing.
When asked whether she thought the value of the company currently was one-to-one-and-a-half million dollars she said:[46]
AThat’s right. We would like it to be higher, but we believe from the lack of interest from investors that we have been seeking to get 200,000 invested in it and they won’t even come at 50,000 we believe.
[46] T 223 lines 4-7.
She was asked if they put it on the market tomorrow to sell it would you get one-to-one-and-a-half million dollars and she replied; “we would like to hope so, yes.”[47] Then further questions were asked:[48]
HIS HONOUR
QWhat you have done is to tell me that it is worth one-to-one-and-a-half million dollars.
AToday.
QYes. Why wouldn’t one want to invest in the business if it is worth that much money.
ABecause we say it is worth that. Because we have invested so much in it, but to find a buyer is a whole different issue.
QThis is what you need to be careful about because a factor I have to look at, in this case, is your asset. Mr Ower’s question is that you may be sitting on an asset, along with your partner, of one-to-one-and-a-half million dollars.
AYes. But that’s not proven. That’s what we would like it to believe, but can see from the tax records. I can’t explain that any further. As much as I would love to that that’s – that has no – it is not realistic. It’s not there, it is not in our hands but we would like to believe that if we are making it, as you pointed out, flow of funds 750,000, 600,000, that it would be looked at to be worth approximately a million, a million-and-a-half. But that is not a realistic asset today. It is a start-up company still after all this length of time and when I said how long is a piece of string is that we cannot validate that value, that does not make us lucrative, it still keeps us in high need for living.
[47] T 223 line 12.
[48] T 223 line 32 – T 225 line 5.
When asked whether they were approaching investors she said they had been recently told that nobody would invest in it.[49] An offer of an investment in the company had been refused approximately six weeks before she gave evidence.
[49] T 225 line 11.
She agreed that there was a dream back in 2003/2004 to float Knowledge Global but that is no longer possible.[50]
[50] T 225 line 29.
The plaintiff said that she would continue to do the books but there was not the money to sustain her in the company and she will have to look at retiring and living on a pension. She thought the company will be managed by her partner who is in effect managing it now anyway. Her partner would like a majority shareholding.
The plaintiff stated that she intended to maintain the 53 per cent shareholding that she has but she added:[51]
We don’t know where Knowledge Global is going. Ross has approached me about the fact that he needs to move on. I’m hanging on to Knowledge Global so that I can have some income. Knowledge Global could absolutely and totally fold and if Centennial Coal leave as a client we are in trouble and I’m hanging on to that shareholding as some asset, something I own after all these years of work.
[51] T 226 lines 18-25.
Finally in relation to the figure of one-million-to-one-million-and-a-half dollars she said:
As much as I’d love to justify, I cannot - we always have a figure in our head and it’s – it’s no, you know, I don’t know how to explain it. We always have a figure in my head, it’s got to be worth something because we have put so much in to it.[52]
[52] T 226 line 38 – T 227 line 4.
It is really that last answer that is the key to understanding the plaintiff’s evidence about what she hopes it might be worth. She has put so much into it, she hopes it has to be worth something.
The question arose as to whether she could sell her shares. In her affidavit she had stated that she would not be able to sell her shares in Knowledge Global. She elaborated on that in cross-examination and stated that the money had to go back into keeping Knowledge Global going if an investor saw a value in it.[53] She later added:[54]
[53] T 228 lines 19-21.
[54] T 229 line 1 – T 230 line 35.
AMaybe my affidavit is not clear enough then. What I meant by that statement was I cannot go out and sell my shares in Knowledge Global and expect that that money would go into my personal account. The only way I can diminish the value of my shares is by dilution at attracting someone else in and that money, like with all other shareholding, would go into the books and into Knowledge Global for further support of Knowledge Global. I cannot go out on the open market and say I need to sell shares. First of all they were, you know, I wouldn’t get any value but, secondly, nobody would express an interest in Knowledge Global if they thought the money was coming directly to me, I cannot sell a section of my shares in Knowledge Global for my own personal outcome.
HIS HONOUR
QWhy not; I don’t understand it.
ABecause there’s not enough money in the company and if anyone wanted to buy the share they would also want to participate in the development of Knowledge Global, not in making me comfortable.
QThere’s two parts to Mr Ower’s question. The first one is why couldn’t you just sell your shares, for example, to somebody who may want to take on the role that you currently adopted or adopted before more recent times. Why couldn’t you do that. And, assuming that, would the shares have some value, that’s the first part.
AIt’s proven the shares would have no value.
QThe second part is why can’t you, in a sense, retire from Knowledge Global, retain your shareholding and allow Mr Sharman to continue with the business and if it improves you’ve got a majority shareholding in a profitable company. I think that’s the –
AI wouldn’t have any income. I wouldn’t be able to live. I need some income out of Knowledge Global out of –
QOkay, let’s put the third possibility then: that you maintain some sort of minor role of bookkeeping to draw a wage and allow Mr Sharman to run the business and the value of your shares improves while you retain some income by doing less demanding tasks.
AWhich is what I’m doing now except that I’m being paid equal amounts and we need to evaluate those number of hours that I work and get paid the equivalent amount.
QI think Mr Ower’s point is, as I understood it, that why can’t you adopt that role of maintaining your shareholding and continue to work in some form and the company proceed in its own right.
AIt can, it can but – the number of hours that I work is not necessarily going to give me the money to live.
QNo, maybe not but you would maintain a shareholding in a potential asset.
AAbsolutely, absolutely. Potentially, yes, I mean that’s – it’s our baby, we hope but if Ross decides – I’m dependent on Ross which is a terrible thing but I – it’s pressure for him because –
QWhat I don’t understand is how a cash injection into your business is actually going to make much difference.
ANeither do we.
QLet’s assume you were fit to work and you found an investor who is prepared to put in a few thousand dollars, what difference would that make.
AVery little, actually.
QCan you elaborate on that. I must admit, there’s an incongruence about what might be suggested is your somewhat optimistic view of what the company may be worth with the practical reality.
AThat’s why coming to a practical solution and resolution about where we are at is coming up fast for precisely that reason, that staying positive just doesn’t work.
QAlright.
AI don’t want – we don’t want to let it go but we know that it’s not – we are in constant contact about where are we going to go next.

Again I reject any suggestion that the plaintiff, in relation to her holdings in Knowledge Global, was in any way being evasive. Indeed her answers indicate that she is unwilling to assign little or no value to Knowledge Global despite the evidence suggesting otherwise. As mentioned before she believes it is worth something “because we have invested so much in it”.[55]
[55] T 223 lines 37-38.
Clearly, the value of Knowledge Global became an issue at the trial. No valuation report was provided. The cost of obtaining a report is between $10,000 and $20,000 and Knowledge Global is not in a financial position to fund a report. The plaintiff does not have the funds to personally finance the report.
Income
The plaintiff and Mr Sharman do not receive a set amount each month from Knowledge Global. If there is money available, they will be paid something. For the plaintiff the priority is for the company to be debt free; most of her income is put back into Knowledge Global. Since about 2003 the plaintiff’s primary source of income is the monies received through Knowledge Global. She receives a combination of wages and director and/or computer consultancy fees.[56]
[56] Exhibit D21 [35].
The plaintiff discussed Knowledge Global with her father but not in great detail. In 2012 she told him the company had sold a set of shares for $100,000. Those funds went back into Knowledge Global. She agreed that she never spoke negatively about Knowledge Global to anyone and that included her father. The plaintiff agreed that she did tell him that at some stage the company was doing well. The testator made no enquiries as to how that may affect her long term or whether that meant she was financially secure.
However as she said in her affidavit:[57]
When I reconciled with my father in 2012 we did not speak at length about my health or financial concerns, partially because of the nature of our relationship, but mostly because I did not want to trouble him with my problems given the circumstances of our reconciliation.
We spoke briefly about Knowledge Global and what it might be worth. When during this time the prospects of the company took a downwards turn I mentioned it to my father, but I think he did not fully appreciate the severity of the situation. Because of his health, and our relationship generally, I did not press the point.
[57] Exhibit D21 [49]-[50].
I have had regard to the contents of the file of Camatta Lempens and in particular to the comments made by the testator as to the financial position of the plaintiff. I accept the evidence of the plaintiff that she told her father that the prospects of the company had taken a “downwards turn”.[58] I am unable to say where he obtained the information that the plaintiff was “fairly financially well off”[59] and “financially secure”[60] other than to say it did not come from the plaintiff. Objectively it was not the case and a simple inquiry by the testator would have revealed the correct position.
[58] Exhibit D21 [50].
[59] Exhibit P5 p 33.
[60] Exhibit P5 p 33.
Shareholding
The plaintiff has about a 53 per cent shareholding in Knowledge Global. Her shareholding is held by the Butler Family Trust. The trustee of the trust is Logical Link Pty Ltd which was established on 24 February 2006. On 15 May 2010 the shares were transferred to that company.[61] Her co-director’s shareholding is held on trust through a company called Carbonlytics Pty Ltd.
[61] Exhibit D16.
Financial future
Knowledge Global is struggling financially. Shares are being issued to pay for work undertaken by both the Directors and other people contracted to do work for the company. There has been a lack of interest from investors to invest in the company. Knowledge Global only has a number of small clients. The only major client is Centennial Coal, who contracted the services of Knowledge Global in 2012. That contract expired on 30 April 2016.[62] Centennial Coal has given notice that their contract with Knowledge Global will not be renewed. Knowledge Global’s financial ability to keep making payments to the plaintiff is likely to be severely and adversely impacted given the loss of Centennial Coal as a client.
[62] Exhibit P45.
Financial position
Assets
The plaintiff owns no real property. She has about 16 Telstra shares which provide a token return each year. She owns a 2004 model motor vehicle valued at around $8000.[63] In 2013 her superannuation was $6,909.62.[64] As of 30 June 2015 she had $22,272.56 in superannuation.[65] In about 2003 the plaintiff had to draw down her superannuation funds with AMP due to financial hardship. In 2014 the plaintiff received an inheritance from her step-father’s estate of $105,000. Her brother received the same amount. The plaintiff used this inheritance to supplement her income from Knowledge Global. She also used the money to continue to build up Knowledge Global and about $48,000 remains from the original $105,000. Knowledge Global is the plaintiff’s only asset however no valuation report has been provided. Its value cannot be accurately ascertained.
Income – early
[63] Exhibit D21 [32].
[64] Exhibit P13.
[65] Exhibit P14.
The financial records of Knowledge Global were tendered.[66] Between 2003 and 2010 the income received through Knowledge Global was relatively poor. In 2011 and 2012 there was an increase in income. This was due to Centennial Coal contracting with Knowledge Global and further income received through the Research and Development Rebate from the Federal Government. The plaintiff receives an income through a combination of consultancy fees and wages. For the last couple of years Knowledge Global has paid the Directors under a wage system.
2013
[66] Exhibit P11.
For the 2013 taxable period Knowledge Global received $319,523 in income.[67] After tax and other deductions the operating loss was $126,276.[68] I note the difference between these figures and the taxation estimates tendered by the defence.[69] For the 2013 taxable period the plaintiff’s taxable income was $104,086. This appears to include $35,000 in wages and $70,000 for computer consultancy services undertaken for Knowledge Global. The plaintiff was not paying tax on the consulting fees she was receiving. As a result she has accumulated a tax debt.[70] She has been repaying this debt in increments of $1100 a month over two years.[71] As of August 2014 the debt was $22,816.72.[72] As of October 2015 she owed about $4000. This debt should be cleared by 2016.
2014 and 2015
[67] Exhibit P11.
[68] Exhibit P11.
[69] Exhibits D19, D20.
[70] Exhibit P12.
[71] T 74.
[72] Exhibit P12.
For the 2014 taxable period Knowledge Global received $268,148 in income.[73] After tax and other deductions the operating loss was $156,941. For the 2014 taxable period, the plaintiff’s personal taxable income was $102,342.[74]
[73] Exhibit P11.
[74] Exhibit P9.
For the 2015 taxable period Knowledge Global received a total income of $316,309.[75]After deductions the operating loss was $6828.[76] The plaintiff and Mr Sharman received a combined wage of $148,469. The plaintiff’s personal tax return records her taxable income as $70,364.[77]
[75] Exhibit P11.
[76] Exhibit P11.
[77] Exhibit P10.
Health background
It was further submitted by Mr Edmonds-Wilson, on behalf of the plaintiff that the testator’s will-making miscarried because he was not aware of the full extent of the plaintiff’s health. He was therefore not in a position to make a fully informed evaluation of the extent of his moral duty to provide for the plaintiff. The plaintiff’s medical background is significant and long-standing. It is therefore necessary to go through her background in some detail.
Medical evidence
Dr Geoffrey Fraser White (Dr White) is the plaintiff’s treating medical practitioner. She has been under his care since 2005. His report was tendered at the trial.[78] His evidence was not disputed. The patient’s major health history includes:
[78] Exhibit P6A.
§Mitral valve disease;
§Open-heart surgery – 1972;
§Atrial fibrillation;
§Congestive heart failure;
§Heart surgery – 2009;
§Breast cancer;
§Bilateral mastectomy; and
§Breast reconstruction surgery.
I now turn to consider the plaintiff’s health history in some detail.
Mitral valve disease
As a child the plaintiff contracted rheumatic fever. She was living in Woomera at the time. As her parents did not take her to the hospital it was untreated leading to her developing a malfunction of her mitral valve. Whilst growing up she regularly consulted a heart specialist in Adelaide. Between the ages of 10 to 20 she was on multiple and long-term antibiotic treatment.
In 1971 whilst pregnant with Danielle, the plaintiff was in hospital for some seven months. Given her heart condition, she was not allowed to undertake any physical exertion. The testator was working in Western Australia at the time and would visit but not regularly. The plaintiff’s mother assisted her “enormously” during this period. The plaintiff was discharged from hospital five months after Danielle was born. She then attended a “nursing home” with Danielle for a couple of weeks before going home. The medical and heart specialists said that she could not do any physical activities, including picking up her daughter. Her mother had to help her look after Danielle for a period of time during 1971 and 1972.
First heart surgery
In April 1972 the plaintiff underwent her first open heart operation. In the 1970s open heart surgery was a relatively new procedure. The surgeons operated on the plaintiff by surgically cutting open the whole left side of her body. The plaintiff has extensive scarring as a result, and this has made subsequent operations difficult to perform. The testator was not at the hospital when the plaintiff underwent the surgery although her mother was present and she lived with the plaintiff and her family during this time. By late 1972 the plaintiff had recovered and her mother went back to live with her father at the shack in Port Augusta.
Second heart surgery
In 2009 the plaintiff began experiencing atrial fibrillation. She was subsequently diagnosed with congestive heart failure. Further investigations demonstrated a need for an emergency open heart operation. In February 2009 the plaintiff had her second open-heart surgery at the Royal Adelaide Hospital. This time the surgeons used robotic technology to transplant the mechanical valve.
Breast cancer
Following the second heart operation the plaintiff was diagnosed with breast cancer. At the end of 2010 she underwent a double mastectomy. The plaintiff did not tell the testator about her cancer diagnosis. She only told her brother. Her brother came back from Indonesia to look after the plaintiff for three weeks. As part of the treatment the plaintiff was required to undergo chemotherapy. She has been on anti-cancer medication for some six years.
Due to the multiple surgeries and the manner of those surgeries, the plaintiff is also susceptible to chest infections. She has been told by her treating doctor that she requires a warmer climate. The plaintiff has undergone a bronchoscopy due to the discovery of a small mass in her chest. She continues to be monitored due to her previous breast cancer.
Breast reconstruction surgery
In March 2013 the plaintiff underwent breast reconstruction surgery but developed complications. It took a long time for the plaintiff to recover. She was in hospital for an extended period of time before being discharged home with community nursing and pathology services. The plaintiff had told the testator and the defendant that she was in hospital. The testator did not visit her and she was not in a position to visit her father. It was during this period that the plaintiff’s father died.
Symptomology
The plaintiff experiences shortness of breath, tiredness, fatigue and abdominal discomfort due to her heart condition. These symptoms cause a “moderate to severe reduction”[79] in her ability to work.[80] Although her mitral valve has been replaced, there continues to be an increase in fluid to the lungs related to both her left-side heart failure and atrial fibrillation. There is no cure for the plaintiff’s heart condition. It is “a gradual deterioration”[81] that is managed with life-long medication and monitoring. Dr White sees the plaintiff on a monthly basis for blood testings and the monitoring of her heart symptoms. In addition she requires scans and blood tests to monitor the possible return of the cancer.
Medications
[79] T 171; Exhibit P6A.
[80] Exhibit P6A.
[81] T 167.
The plaintiff is on a regime of medications for her health ailments. She has taken Warfarin for her atrial fibrillation since 2007. Warfarin is used to reduce the risk of developing a clot related to atrial fibrillation but this drug increases the risk of bleeding and stroke. Regular blood testing is therefore required. The plaintiff also takes Digoxin and Noten for her heart condition. A side effect of these drugs can be tiredness. The cost of such medications at their current doses is about $100-$120 per month.[82] During episodes of worsening heart failure the plaintiff requires additional cardiac drugs. The additional cost is between $35 and $150 per month. Currently the plaintiff’s breast cancer is in remission and she has recently ceased chemotherapy. The cost of the chemotherapy drugs was $1500 to $2000 per cycle.
Future surgeries
[82] Exhibit P6A.
Shortly before the trial commenced the plaintiff had her gallbladder removed. Further surgery for breast reconstruction has been considered by the plaintiff due to body image issues as a result of her scarring. If this surgery is undertaken it will cost approximately $15,000. There is also a possibility that a third open-heart operation may be required if the plaintiff’s replaced mitral valve fails. Given the plaintiff’s cardiac history, there is a risk that she will suffer severe intractable heart failure. If this occurs she will require a cardiac pump and subsequent heart transplant. The costs associated with the surgery are great.
The plaintiff’s financial position
The plaintiff as mentioned earlier is an intelligent, hardworking and articulate person. To understand how she has ended up in her current financial position requires an assessment of her history.
The plaintiff has always worked hard. It is apparent that she has sought to continue her education over her life. Her travels and work overseas did not lead to an accumulation of wealth. In approximately 1997 she moved to Sydney and it appears that after a few years she became involved with Ecomm. This was a “dot.com” company which appeared to have some sporadic success but in the end failed. The plaintiff was in a very poor financial position in 2002 when she returned to Adelaide.
The plaintiff started Global Knowledge around this time. It was a “start up” company with hopes for future success. The company did work for Sustain Agility and after a short time it appears that Sustain Agility also failed. Global Knowledge has continued but its main contract has not been renewed. The company still trades but it is unclear for how long that will continue. It is likely that the plaintiff’s health will stop her from working. I have no doubt that the plaintiff believes passionately in her work with Global Knowledge. It may be that it has been Australia’s changing environmental policy over the last 10 years that has caused the company problems. It does not matter as it seems that the company is now struggling. The question is whether her shares have any value and that is dependant to an extent on the actual worth of the software.
Whilst the plaintiff had high hopes for the company when she started it the practical reality is that it has not succeeded to any great extent. The fact that the company had been worth something is seen by the sale of shares in 2012 for $100,000. That money was put back into Knowledge Global.
I have already set out the current and likely future position of the company. It is struggling financially, and there is a lack of interest from investors. The business is not readily saleable. While there has been some income from the company now that the major contract has expired income will be very limited.
I cannot say that the shares held by the plaintiff have no value. The company may have some assets to sell. They could at best only have a very modest value. The plaintiff is likely to have to stop work due to her health problems.
Estrangement
This was an issue at trial so it is necessary to consider the background of the plaintiff’s relationship with the testator.
Domestic violence
It is necessary to consider the plaintiff’s relationship with her father. The behaviour of the plaintiff has to be analysed against the background of a difficult childhood. As a child the plaintiff witnessed severe domestic violence being inflicted upon her mother by the testator. From about the age of three the plaintiff observed the testator perpetuate all forms of physical violence upon her mother. At times her mother suffered broken bones and would be hospitalised. The plaintiff recalls the testator throwing dinner plates at her mother. He would rub food in her face. The testator would often take her and her mother on long drives to avoid the visitors that might come to the house.[83] Her mother carried a permanent mark on her forehead as a result of the physical violence. The testator also had control of the money in the family. Her mother did not work and she always had to ask the testator for money.
[83] Exhibit D21.
This background affected her brother’s relationship with the testator. That relationship eventually broke down irretrievably.
Separation of parents
In 1973 the plaintiff’s mother left the testator. The plaintiff’s mother later remarried. The testator was bitter about the divorce. He would constantly complain about his ex-wife and her family to the plaintiff. The testator kept a photograph of his ex-wife by his bedside. Following the separation the testator stayed with the plaintiff and her husband at Norwood for “a long time on and off”.[84] He was out of work during this time and would spend his weekends at his shack in Port Augusta.[85] The plaintiff’s daughter was about two years of age at the time. He eventually obtained employment with the Torrens Council as a consultant and managed all the building projects for the council under his builder’s licence. He worked there for about 15 years before retiring in 2004.
Estrangement or non-contact?
[84] T 78.
[85] T 78.
The testator’s fixation on his marital break-up made it difficult for the plaintiff to have a relationship with him. The plaintiff’s brother confirmed this in evidence. Prior to 2004 the plaintiff had regular contact with the testator while she was living in Adelaide. The testator would often visit her and Danielle. The plaintiff was living at her brother’s house at the time. They had meals together and went out for dinner often. He helped Danielle move into her own place and he stored some of her things in his shed at Forestville. The testator would attend Danielle’s birthdays. He also attended her farewell party before she left for interstate to attend university.
During this contact, the testator would always talk negatively about her mother.[86] He would tell the plaintiff how he was hurt and “hard done by because she had left him.”[87] He would often tell the plaintiff that she looked like her mother.
[86] T 85.
[87] T 86.
The testator was a difficult man. Although he had contact with his daughter and Danielle he continued to act “like he was a victim”[88] of his wife having left him. He did not refer to the plaintiff as his daughter to people in public. She would often telephone him at his work; she would not identify herself as his daughter as the testator “didn’t like it”.[89] He never introduced Danielle as his granddaughter. He always referred to her as “the girl”.[90]
2004
[88] T 272.
[89] T 87 line 10.
[90] T 87 line 18.

By 2004 the plaintiff was emotionally drained from being constantly harangued about her mother after she had been deceased for 20 years. She made a conscious decision not to contact the testator. The plaintiff still wanted a relationship with her father, but she wanted him to stop belittling her mother. She wanted him to initiate the contact as “the parent”.[91]
[91] T 213.
In the event that did not happen. The testator never contacted the plaintiff. This period of non-contact lasted approximately eight years. Prior to 2004, contact was mostly[92] at the instigation of the plaintiff. The plaintiff was kept informed about the testator through her cousin Gail. Gail’s mother, Daphne is the sister of the testator. Daphne and the testator were “very close”. When the testator was diagnosed with lung cancer it was Gail who told the plaintiff about the diagnosis.
Resumption of contact
[92] Exhibit D21 [23]; [25].
In 2012 the plaintiff contacted her father after learning about his lung cancer diagnosis. She went over to aunt Daphne’s house when he was there during one of their “Saturday lunches”.[93] The plaintiff would visit the testator about two/three times a week, both at his home and later when he was living in the Burnleigh residential care facility (“Burnleigh”). During this time she was also working in Sydney. She would visit him on Saturday afternoons if away interstate for work. The plaintiff was overseas with her brother for about four weeks when the testator was placed into Burnleigh. Upon returning in October 2012, the plaintiff continued to visit him in Burnleigh, the last time being in February 2013. During the visits, the testator started to reveal more about himself to the plaintiff. He talked in some detail about his service in the War and its effect on him. He also discussed his own family and his work.
[93] T 88.
The plaintiff also opened up to her father. She told him she had breast cancer but she did not discuss the details. The testator also talked about his funeral. He told the plaintiff he wanted “no fuss”.[94] The testator’s friend Mr Kotz affirmed this. The defendant however organised an open coffin funeral service. The plaintiff and her aunt Daphne did not attend as the plaintiff could not look at her father in an open coffin. The plaintiff was incredibly upset, as was her aunt Daphne. The plaintiff had discussed the family’s views, including the testator’s views with the defendant but the defendant paid no heed to their wishes.
Hospitalisation
[94] T 96-97.
During 2012 and 2013 the testator was hospitalised on several occasions. The plaintiff was informed of the first admission by the defendant. The defendant was one of the contacts on the hospital records. The testator had a heart attack and the defendant told her the testator did not want his children to visit him. Whilst I accept that the defendant said that to the plaintiff, for the reasons I will later express about the reliability of the defendant, I am not prepared to accept the truth of what is contained in the statement.
On the second occasion the hospital contacted the plaintiff directly. She went to visit the testator in hospital. In about February 2013 the testator had discussions with the plaintiff about his will. He was concerned about leaving money to the defendant because her husband had been violent in the marriage and had a gambling problem. The defendant confirmed in her affidavit that there had been domestic violence.[95]
Other witnesses
[95] Exhibit D25 [23]; [58].
The plaintiff’s brother
Kenneth John Cock (“Mr Cock”) is the plaintiff’s brother. He is now 71 years of age. He is married with no children. He is a retired school principal. At trial he gave evidence that as a child he was “very scared”[96] of the testator. From the age of five he witnessed the testator physically abuse his mother. After his mother left home the testator would continually talk about his mother and put her down “all the time”.[97]
Estrangement
[96] T 271 line 23.
[97] T 272.
The testator had a shack at Port Augusta. In the 1980s while teaching at a school in Whyalla Mr Cock would use the shack. The testator did not like animals. The testator found out that his son had his dog inside the shack. He was very angry with him and they had a falling out over it. Mr Cock ceased contact with his father. In 1993 the testator contacted him to congratulate him on being appointed principal of Christies Beach High School. Other than that, neither contacted the other. The plaintiff encouraged her brother to see the testator when he was diagnosed with lung cancer but he refused. He never visited his father in hospital and did not attend his funeral. Despite this estrangement, the testator provided the same in his will for his son and the plaintiff.
Mr Cock was an excellent witness and I accept his evidence without reservation.
Anthony John Kotz
Anthony John Kotz (“Mr Kotz”) is a friend of the testator of some 43 years standing. He is the other executor of the will. He lives in Port Augusta. He first met the testator while working at Naracoorte in 1972. The testator was a project manager at the time in the construction industry. Mr Kotz’s role was to supply concrete in the projects with the testator. They worked together for six months.
Mr Kotz met the testator again two years later in Port Augusta. The testator had a shack at Port Augusta and Mr Kotz eventually became the caretaker of the shack. He had a set of keys and the code for the alarm system. Mr Kotz attended to the general maintenance of the property and helped the testator reclad the shack and put up a balcony. He also did some welding, painting, re-nailing and weeding at the property. When the testator’s son used the shack, he would need to get the keys off Mr Kotz. The testator insisted that his son get Mr Kotz’s permission to use the shack.
About seven years ago Mr Kotz bought the shack off the testator. A particular payment plan was negotiated. At the time of death he still owed about $10,000.
During the friendship Mr Kotz visited the testator in Adelaide once a month when he was down for work. He had a house key and would stay with him often. Mr Kotz described the testator as a “very strong-willed”[98] and “very strict”[99] man. He would get upset over small or trivial things. He told him about the falling out he had with his son over the dog being in the shack. The testator never mentioned he visited the plaintiff in Japan. Mr Kotz had not met the plaintiff until the trial. The testator told him that his daughter was financially well off. The testator also talked about his ex-wife every couple of months. He would say that “she was the only woman he ever loved”[100] and that “he should never have let her go”.[101] He saw the photo he kept of his ex-wife on his bedside. He would also talk about his children.
Meeting the defendant
[98] T 199 line 5.
[99] T 199 line 6.
[100] T 197 lines 17-18.
[101] T 197 line 18.
Mr Kotz first met the defendant about seven to 10 years ago. He had met her about a dozen times. He has also met the defendant’s ex-husband. The testator told him he paid for the defendant’s family to go on a holiday to Queensland. When the defendant was younger he recalls the testator buying her clothes and giving her “pocket money”. Mr Kotz described the testator as a “ladies’ man”.[102] He said the testator doted on the defendant and her younger sister, Sammy.
Funeral
[102] T 202 line 26.
The testator paid for his own funeral. He told Mr Kotz he did not want any fuss; that he wanted no funeral service and no viewings. The plaintiff confirmed this in her evidence.
The defendant’s case
Overview
Mr Ower, on behalf of the defendant, opposed the application for further provision. It was argued that the plaintiff has been adequately provided for in the will. It was also submitted by Mr Ower that estrangement between the plaintiff and the testator between 2004 and 2012 was a powerful factor to be taken into account in relation to the jurisdiction question.[103] There was also some criticism by Mr Ower relating to the lack of disclosure by the plaintiff of the financial position of Knowledge Global.
[103] Cases referred to included; Ford v Simes [2009] NSWCA 35, Burke v Burke and Devereaux-Warnes v Hall (No 3); [2007] WASCA 235; Kleinig v Neal [1981] 1 NSWLR 462.
I now turn briefly to discuss the defendant’s background.
The defendant’s background
The defendant is 37 years of age. She has two children aged 12 years and eight years. The defendant was previously married but divorced in August 2015. Her husband had been physically abusive towards her during the marriage. Her two children are seeing a psychologist as a result of the abuse they witnessed.[104] The defendant is in a relationship. She met her current partner, Jason Barracelli (“Mr Barracelli”) in 2013. The defendant has some TAFE qualifications. Since the birth of her first child in 2004 she has not worked other than one week as a payroll officer in June 2012.[105]
Childhood
[104] Exhibit D25 [58].
[105] Exhibit D25 [60].
The defendant was born in Italy. Her parents married in 1974 and separated in about 2002. She has two sisters and two brothers. The family moved to Canberra in 1983. In 1990 the family moved to Adelaide when the defendant was 12 years of age. She did her final year of primary school at Hallett Cove Primary School. In 1996 she completed her high school education at Underdale High School.
Domestic violence
Growing up as a child the defendant did not have a good relationship with her father who was very strict. He was also a heavy user of alcohol. The defendant witnessed domestic violence being inflicted upon her mother by her father. He would also hit and slap the defendant and her siblings. The defendant suffered a cracked tooth from receiving a slap from her father. The defendant left home because of the domestic violence. She has had no contact with her father since. She has a close relationship with her mother.
The defendant’s evidence
Relationship with the testator
The defendant gave her evidence-in-chief largely by way of affidavit.[106] She is not a family member of the testator. She met him in 1998 whilst working at a supermarket. In her affidavit she described her relationship with the testator as being akin to a daughter-like relationship from the outset.
[106] Exhibit D25.
I now turn to summarise her affidavit evidence and supplementary oral evidence given in examination-in-chief.
1998
The defendant said that she first met the testator when she was working at the IGA in Glandore in 1998. She was 18 years old at the time. Her younger sister Sammy also worked there. The testator lived around the corner. She said he would regularly shop at the IGA and would often chat to her and Sammy. After a few months the testator invited the defendant and Sammy over for lunch. A friendship between the three quickly developed. The defendant began to see the testator as a “father figure”.[107] She would go to the testator’s house nearly every day on her lunchbreak. She would confide in him and seek his advice on life. She discussed the fact that her father had been abusive towards her.
[107] Exhibit D25 [18].
When the defendant was 19 she left the IGA in Glandore and worked as an administration officer for a building company in Beulah Park. The testator would still visit her on her lunch breaks. She would also continue to drop into his place and have dinner with him after work.
2000
In 2000 the defendant and Sammy left home and moved into rental accommodation. The defendant was 20 years of age at the time. She said that the testator purchased some furniture and white goods to help get them started and that the defendant and her sister could pay him back once they were on their feet. The defendant said that the testator “never once complained or made issue about repayment of the money.”[108] The defendant paid back the testator four years later.
[108] Exhibit D25 [20].
Mid 2000s
During the mid-2000s the defendant said she had “daily telephone communication”[109] with the testator. She would see him three to four times a week mostly at his house. He would attend gatherings held by the defendant. In 2004 he attended her engagement party.[110] In 2008 he walked her down the aisle when she married.[111] The defendant said she would also see the testator every January on Australia Day. He would have a party at his house in Glandore and she attended every year.[112]
[109] Exhibit D25 [22].
[110] Exhibit D25 [22].
[111] Exhibit D42.
[112] Exhibit D25 [25].
Late 2000s
The defendant greatly assisted the testator during the final years of his life. She drove him to his medical appointments, cleaned his house and checked his mail. She helped him with his meals and other activities of daily living and organised his move into residential care. The defendant visited him in Burnleigh and took him on day trips[113] and would often take her children with her.
[113] Exhibit D26.
The plaintiff does not dispute the fact that the defendant assisted the testator during the later years of his life. The testator told the plaintiff how grateful he was for the defendant’s assistance and affection.
Cross-examination
The attitude of the defendant changed when her evidence was tested under cross-examination. When her evidence about the nature of the relationship with the testator was tested she became evasive and appeared to have difficulty remembering events.
Contrary to the defendant’s presentation of her relationship with the testator being harmonious from the start, it transpired that during the early 2000s the testator instigated a minor civil action claim against the defendant and her sister for recovery of the monies for the furniture and white goods.[114] The defendant had made no mention of this in her affidavit. The evidence tendered by Mr Edmonds-Wilson, on behalf of the plaintiff, shows that the defendant was personally served court documents[115] and that the defendant filed an affidavit seeking the debt to be paid by instalment.[116] A loan agreement was then organised to repay this money back to the testator. The defendant and her sister did not meet the payments. On 9 May 2003 judgment was entered against the defendant and her sister.[117] During cross-examination the defendant said she “totally forgot”[118] that the testator had sued her; this was in stark contrast to her positive assertion in her affidavit that the testator “never complained or made issue about repayment of the money.”[119] She also said in her affidavit that she had saved the money to repay him back;[120] although she later admitted that she did this by accessing her superannuation under the grounds of financial hardship.[121]
[114] Exhibit P28.
[115] Exhibit P29.
[116] Exhibit P30.
[117] Exhibit P31.
[118] T 310 line 27.
[119] Exhibit D25 [20].
[120] Exhibit D25 [20].
[121] Exhibit D25 [62].
The defendant also made no mention in her affidavit of currently being in a relationship. When asked by her counsel if she was in a relationship, she said “No”.[122] During cross-examination the name “Jason Barracelli” was raised. When asked who Mr Barracelli was, the defendant answered just “a guy I had met”.[123]
[122] T 294 line 34.
[123] T 328 line 30.
The following morning when cross-examination resumed she admitted being in a current relationship with Mr Barracelli. The defendant admitted that she knew her initial answer was false at the time she gave it.[124] The defendant could not provide a satisfactory answer as to why she was untruthful. She initially had said she met Mr Barracelli in 2014 but later agreed that she met him a year before that in 2013 at Relationships Australia.[125] The defendant gave evidence that she went overseas with Mr Barracelli to Bali in February 2015. She has also travelled to Melbourne with him in the past.
[124] T 330.
[125] T 329.
There were other potential inconsistencies in the defendant’s evidence. For instance, she stated in her affidavit that the testator had attended her engagement party in 2004[126] yet in the previous year he was actively pursuing her in the Magistrates Court. She also describes in her affidavit how the testator “was at the hospital with John when I gave birth”[127] but does not specify whether this relates to the birth of her son in 2004 or her daughter in 2008. Due to the fact that her cross-examination was not completed these matters were not resolved.
[126] Exhibit D25 [22].
[127] Exhibit D25 [38].
I find that she also lied in her affidavit when describing her relationship with the testator after she first met him. I do not accept that she “totally forgot”[128] about the Magistrates Court matter.
[128] T 310.
Wilful conduct or medical excuse?
After the defendant admitted that she had not told the truth about her relationship with Mr Barracelli, she did not return to court after the morning break for the continuation of her cross-examination. Mr Ower, on behalf of the defendant, informed the Court that the defendant would not be resuming her cross-examination. A short adjournment was allowed for the defendant to attend at her general practitioner. She was referred to the Royal Adelaide Hospital where she was diagnosed with gastroenteritis. A sick certificate was provided to the Court for the period between 15 October 2015 and 23 October 2015.[129] The trial was set down to resume on 5 November 2015. At that time Mr Ower, on behalf of the defendant, submitted that the defendant “does not wish”[130] to resume her evidence on the adjourned date.
[129] Exhibit P39.
[130] T 380 lines 5-6.
On 5 November 2015 Mr Camatta appeared on behalf of the defendant as executor.[131]
[131] T 398.
On 6 November 2015 Dr Papps gave evidence about the defendant’s condition as she presented to him in October. The defendant has a history of suffering spontaneous pneumothoraxes. In December 2014 she had her first spontaneous pneumothorax.[132] The second occurred in February 2015 following a recent history of air travel to Bali. She was admitted to the Royal Adelaide Hospital on 26 February 2015. It was submitted that the defendant fears she will experience another spontaneous pneumothorax if she were to resume her cross-examination.[133] The hearing of the matter was adjourned to 10 March 2016.
[132] T 298.
[133] T 458.
After a directions hearing on 4 February 2016 Mr Ower, on behalf of the defendant, submitted to the Court that the defendant continues to have a medical condition that prevents her from giving evidence; yet the defendant “would like to consider her position on the morning of the 10 March”.[134]
[134] T 2 lines 7-8.
On 10 March 2016 Mr Ower, on behalf of the defendant, sought the discharge of the defendant from further cross-examination on the basis of medical evidence. To support that position Dr Papps gave further evidence.
Dr Papps – medical evidence
Dr Papps gave evidence again at the trial. I have taken into account all of his evidence when considering this matter.
Dr Papps has been the defendant’s general practitioner for six years.[135] He would see her every two or three months for appointments. He saw her before the trial started in March 2015. His reports were tendered.[136] Dr Papps gave evidence that the defendant has had severe anxiety intermittently through most of the time that he has been seeing her as a patient given her family issues. Dr Papps also gave evidence that the defendant has severe depression.[137] He has prescribed her medication. The defendant has refused to take medications for anxiety and depression.[138] Dr Papps has repeatedly urged the defendant to attend a psychiatrist and/or psychologist.^[139] She has refused to do this.[140]
[135] T 415.
[136] Exhibit D41.
[137] T 445.
[138] Exhibit D41.
[139] T 477.
[140] T 474.
Spontaneous pneumothorax
Dr Papps has also discussed with the defendant her ongoing risk of pneumothorax recurrence. She requires surgery in order to reduce her risk of experiencing a further pneumothorax in the future. He has discussed the surgical options with her including undergoing a pleurodesis or a pleurectomy.[141] She has refused this medical advice. She is petrified of having surgery as she has a fear that she will not wake from the general anaesthetic. Dr Papps has told her it is a worthwhile exercise to undertake given that a pneumothorax is potentially life-threatening. The defendant “is not prepared to even think about it”.[142]
[141] Exhibit D38.
[142] T 421 lines 34-35.

When Dr Papps gave evidence and provided his reports to the Court he was not aware that the defendant had been present in the Court during the opening of the plaintiff’s counsel and the evidence of other witnesses.[143] Neither was he aware of the length of time or the types of questions being asked.[144] He was not told by the defendant that she had sat through about two to three days of the trial without any obvious outward signs of stress. She did not disclose to Dr Papps that she had started her cross-examination. There was to my observation no obvious outward signs of stress or mental incapacity.[145] The doctor was not aware that just prior to refusing to resume her cross-examination she had admitted being untruthful.
[143] T 441.
[144] T 439.
[145] T 468.
I find that the defendant sat in court during the plaintiff’s evidence and also the evidence of the other witnesses. She gave her evidence-in-chief although that was largely done by way of affidavit. She was subjected to a probing and incisive cross-examination but one which was conducted politely, quietly and in a fair manner. Whilst evasive when under cross-examination she did not exhibit outward signs of stress. That of course does not mean she did not suffer stress and/or anxiety. However Dr Papps as I mentioned was not given by her the correct history of what had happened in the courtroom setting.
Dr Papps clearly is an honest and caring medical practitioner. I accept his evidence generally about the defendant’s medical history. His opinion as to whether she was medically fit to resume her evidence was based only on a partial history being supplied to him and he was unaware of a number of relevant facts. I am prepared to accept that she was sufficiently unwell to have the case adjourned.
Whilst I accept Dr Papps’ evidence about her past medical history I am unable to accept that, due to those matters, she is medically unable to resume and then finish her evidence. In my opinion the defendant has chosen not to complete her evidence and has attempted to hide behind her medical conditions. Precisely why she has chosen such a course of action is not known to me. I do not have to make a finding about that.
Ultimately no application was made to strike out the defence. The Court is left with the evidence she has given and that she has not presented herself for further cross-examination. There were a number of potential inconsistencies which could not be explored. Mr Edmonds-Wilson may have had other issues to pursue.
I find her evidence is unreliable. I find she was on many matters evasive and on the two matters discussed, deliberately untruthful. I will only act on her evidence where it is supported by other evidence or where it is not seriously in dispute. I do not accept her evidence about her early relationship with the testator.
The defendant is not to be punished by failing to complete her evidence. However, her failure to complete her evidence means that what evidence she did give, in particular, the length and strength of her relationship with the testator, must be assessed with careful scrutiny and as mentioned I am only prepared to accept it where there is some independent support.
Defence witnesses
Maddalena Tiburzi
Maddalena Tiburzi (“Mrs Tiburzi”) is the mother of the defendant. She is 59 years of age. Her daughter Sammy also formed a friendship with the testator. Mrs Tiburzi has been divorced from the defendant’s father for about 20 years. Her ex-husband was physically abusive towards her.^[146] He would also physically abuse the defendant and her siblings.[147]
[146] T 292.
[147] Exhibit D25 [10].
Mrs Tiburzi first met the testator in 1998. Mrs Tiburzi would see the testator at her daughter’s house and on occasions she also went to the testator’s house. Mrs Tiburzi would take her grandchildren with her and they would stay for about three or four hours at a time. The grandchildren would play in the backyard and the testator would interact with them.
The testator hosted his own parties. Mrs Tiburzi would see him at the “January party”[148] he held every year at his house on Australia Day. The testator’s friends, the defendant and her family and friends would attend. The testator’s family were never invited, including his sister Daphne.[149] Mrs Tiburzi and the testator never talked about his family but they did talk about his work. The testator would also talk about the defendant and would often say that the defendant “is like a daughter”[150] to him. On 23 February 2008 the defendant married her husband. The testator walked her down the aisle.[151] After the wedding the testator would be at her daughter’s house all the time.
[148] T 280 line 13.
[149] T 81.
[150] T 281.
[151] Exhibit D42.
Mrs Tiburzi was a very defensive and occasionally hostile witness when cross-examined by Mr Edmonds-Wilson. There was no obvious reason why she behaved like that other than an attempt to protect her daughter. That causes me to treat her evidence cautiously. However, I generally accept her evidence in relation to events occurring after 2004. In particular she confirms that by 2008 the relationship between the defendant and the testator was good.
Congying Huang
Congying Huang (“Connie”) is a friend of the defendant. She was born in China. She first came to Australia in 2008 to study. She met the defendant in 2008. She would babysit her two children. Through the defendant she met the testator. In February 2010 she boarded with him at his property. In 2012 she moved out when the testator moved into Burnleigh.
Connie gave evidence that the defendant visited the testator once or twice a week and would often bring dinner for them. At times she would visit on the weekends with her children. Connie also gave evidence that the defendant would ring the testator almost every day shortly before he moved into Burnleigh. In 2012, Connie observed the defendant drive him to various medical appointments. She said that the testator “would always say he saw Tamara as his daughter.”[152]
[152] T 182 lines 7-8.
Connie said the testator “rarely”[153] talked about his children to her. She saw the photographs in his bedroom of his children. Connie knew he had a sister that he saw once a week. She first met the plaintiff at the testator’s birthday party in 2012. The party was organised by the defendant. At this stage the testator was residing at Burnleigh.
[153] T 180 line 35.
I accept Connie’s evidence. Her evidence is consistent with there being a strong bond between the testator and the defendant at the time she commenced boarding with the testator.
Will-making pattern
There was no challenge regarding testamentary capacity. The testator made a number of wills over his life.
Early 2000s
In 2001 the testator had instigated civil proceedings against the defendant. By 2003 he had made a will leaving the residue of his estate to his two children in equal shares. By 2004 the defendant had repaid the money to the testator. In 2005 by his will he bequeathed $50,000 to the defendant and the rest of his estate to his two children in equal shares. By October 2008 the testator instructed his lawyers to remove the defendant from his will;[154] despite the fact that he had walked the defendant down the aisle in February 2008.[155] He left the majority of his estate to his two children, even though he was estranged from his son and had had no contact with his daughter for some years.
[154] Exhibit P5.
[155] Exhibit D42.
The last will
In September 2012 the testator was admitted to Ashford Hospital. He had collapsed a few times at home. This admission was against a background of having received radiotherapy and chemotherapy. A lawyer from Camatta Lempens met him at the hospital to review his will. The last will largely benefits the defendant and her children. Indeed, the defendant assisted the testator greatly during his final years of life. The defendant gave evidence that the testator never told her the exact details of his will;[156] yet she had some involvement in the testator’s will making between 2012 and 2013. On 14 February 2013 the defendant contacted Camatta Lempens and conveyed instructions about the insertion and removal of certain clauses in the testator’s will;[157] namely that:
§ the bond of $280,000 paid to Burnleigh be refunded to the defendant;
§ there be a $100,000 trust for the benefit of the defendant’s children;
§ the amounts left to the testator’s two children be reduced from $100,000 to $50,000; and
§ the debt owed to the testator by Mr Kotz be forgiven.
[156] Exhibit D25 [45].
[157] Exhibit P5 p 53.
The defendant was not able to be cross-examined about her assertions.
The testator told the plaintiff that she would be a beneficiary under his will. He did not disclose the amount she would receive. The testator told her that her brother would get a small amount. He also told her that the defendant would receive under his will. He did not discuss the figures.
The evidence suggests that the testator led a compartmentalised life. He kept significant aspects of his life secret from the defendant and from his family. He deliberately kept his family and friends separate from one another. He controlled what details and information each needed to know. He was estranged from his son. He had been physically abusive towards his ex-wife. He was not in contact with his daughter for many years but was very close to his sister Daphne.
The testator had told the defendant he had no children. She did not know about his sister or his children until 2012. He said his children were angry with him because he had left their mother. The testator told the defendant that he did not trust his sister Daphne;[158] yet he had lunch with her every week and maintained the gift of $100,000 to her in his final will. I am prepared to accept the defendant’s evidence that the testator was not truthful with her.
[158] Exhibit D25 [51].
The testator did not tell the defendant that he had been physically abusive towards his ex-wife. When the testator was diagnosed with lung cancer he told the defendant “he did not want anyone else to know and that he did not trust anyone else.”[159] The plaintiff had “known of Tamara for a long time”[160] but had never met her until she visited the testator at Burnleigh. She had also seen her at the testator’s birthday party.
[159] Exhibit D25 [27].
[160] T 93 line 8.
The will making pattern is not inconsistent with my finding that the relationship between the defendant and testator was not particularly strong until the later years of his life.
Threshold question
Financial position
I have discussed the background and financial situation of the plaintiff earlier in these reasons. She was subjected to a vigorous but fair cross-examination. I find that the plaintiff was an impressive, honest and reliable witness. She was prepared to concede matters where appropriate. She was not evasive in her evidence and any imperfections in her memory could be accounted for by the passage of time. I do not accept that she was in any sense evasive in her evidence about Global Knowledge. I accept her evidence.
Before a court can make an order it needs to be satisfied that a plaintiff has been left at the time of the testator’s death without adequate provision for her maintenance, education or advancement in life. It is of course necessary for the plaintiff to prove on the balance of probabilities her financial position and therefore that she has some need. Clearly if a plaintiff does not make full and frank disclosure they may have difficulty in persuading a court of the need for further provision.
Mr Ower submitted that the plaintiff in this matter had not made full and frank disclosure of her financial and material circumstances.[161] He focussed on the plaintiff’s failure to lead evidence as to the value of Knowledge Global or at least the value of her interest in that company. He submitted that there was no basis on the evidence that I could make a judgment about the value of Knowledge Global. Mr Ower submitted that the failure of the plaintiff to put forward adequate evidence in relation to a valuation of the company (or at least her interest in it) was such that I should conclude that the threshold question had not been satisfied.
[161] Mann v Starkey (2008) NSWSC 263.
I reject his submissions in that regard.
First, I accept that the plaintiff made a full and frank disclosure as far as her financial position enabled her to do so. Neither she nor the company were in a position to pay for a valuation. Secondly, the plaintiff disclosed the existence of Knowledge Global and the structure of the shareholding in her original affidavit. Her personal tax returns as well as tax returns from Knowledge Global were also produced. Indeed in her affidavit she stated “I believe Knowledge Global has the potential to become a profitable business”.[162] As I discuss later this was a somewhat optimistic view put by the plaintiff but certainly not the statement of someone who was attempting to paint a false picture to the Court.
[162] Exhibit D21 [40].
However the fact remains, as submitted by Mr Ower, that there was no expert evidence as to the value of the plaintiff’s holdings in Knowledge Global.
I note that the position of Knowledge Global has worsened since the date of death of the testator. The position as at the date of judgment is clearer than it was at the date of death. I must ignore those later facts when considering the plaintiff’s position at the time of the testator’s death.
However there is evidence from which I can form a view about Knowledge Global and the plaintiff’s interest in it as at the date of the testator’s death.
The plaintiff was overly optimistic about its position. The plaintiff had put a substantial amount of time, money and emotional energy into Knowledge Global (indeed that has been her attitude to work throughout her life). Obviously she did not want it to fail. Her comments about what she thought it may have been worth at some time is simply a reflection of her optimistic attitude to her work generally. As of the date of death her evidence established that she had invested heavily in establishing Knowledge Global. It was her only source of income and the payment of that income was irregular and depended on the cash flow in Knowledge Global. I infer from the evidence that the changing political climate and the various attitudes adopted to climate change had already impacted on Knowledge Global to the extent that it was largely surviving on the one major contract and a few minor ones. It is clear that the company had very few clients and only one that was of much significance.
In my view, at the date of death of the testator, it was already a company that was struggling. The sale of some shares in 2012 for $100,000 shows that someone at least thought it had potential. I note however that the money was put straight back into the company. However the evidence of the plaintiff establishes that by that time it was already struggling.
At the time of the testator’s death I accept that the company was in a better position than it is in now. The company may have been able to continue to pay the plaintiff for her labour for a few years but at that time it was clearly not going to provide for her long term future. It was at best speculative that it could provide any sustainable income or asset base for her future needs.
It is likely that the plaintiff and the testator never had a proper discussion about her actual financial position. In part I find that was due to their respective health issues but it was also likely their lifetime relationship was such that financial matters were not discussed in any detail. I find that the testator did not make any serious enquiry of the plaintiff as to her financial position. I accept the plaintiff’s evidence that she told the testator that there had been a downturn but nothing more was said. He did not follow that comment up.
Had the testator enquired about her financial circumstances he would have ascertained that she owned no real property and had not done so since about 1997. At that stage she had no savings and lived in rental accommodation. She had previously had to access her superannuation due to financial difficulties. At that time she owned a 2004 model motor vehicle and apart from her interest in Knowledge Global she had no other form of either income or financial investment. Whilst Knowledge Global had some prospect of paying her an income for a short period of time its ability to continue to pay her a wage for longer than a few years or provide her with an asset base was even at the time of the death of the testator problematic.
Estrangement
As discussed earlier in the judgment, the question of estrangement is a matter to be taken into account. However, one must look at all of the circumstances of the case in order to establish what role it may play in the assessment.
The mere fact of estrangement between parent and child should not ordinarily result, on its own, in the adult child not being able to satisfy the jurisdictional requirement. The authorities do not establish that where estrangement is not the product of callousness or hostility there is a prima facie entitlement to provision.
The question of estrangement is a matter to be taken into account after looking at the whole of the circumstances of the relationship.
I note that the testator looked after the plaintiff’s financial affairs and the Parkside property while she was living in Japan and then again whilst in Sydney. He further assisted the plaintiff renovate the property at Parkside at some stage in the mid-1980s. The plaintiff said, and I accept, that she and the testator spoke regularly and when she returned to Adelaide from her various trips they would see each other. Indeed the plaintiff said that she and the testator saw each other regularly once she returned to live in Adelaide in 2002. Further, I note that the testator actually visited the plaintiff when she lived in Japan.
I reject the submission of Mr Ower that by 2004 the plaintiff and the testator were “almost effectively strangers”.[163]
[163] T 544 line 10.
Once the plaintiff resumed contact with the testator in 2012 the relationship was again strong.
As mentioned I accept all of the evidence of the plaintiff with regard to her relationship with the testator. As mentioned the reason for the lack of contact for that period of time was largely due to the testator’s own behaviour. I accept that the testator never made any real attempt to contact her and he was difficult to deal with when they did meet. She made the decision that she would like him to contact her to keep the relationship going. He did not do so. It is clear that she wanted the relationship to continue at that time but by him contacting her.
In my view this was typical of the behaviour of the testator as can be seen from the other evidence in the case. He was a selfish and controlling man who required people to do things for him. I accept that as soon as the plaintiff heard that he was ill she made contact with him. This was despite her own health problems.
I find that the plaintiff would have preferred to have had her relationship continue with her father but her desire to have him initiate contact led to the period of non-contact. I agree with the submissions of Mr Edmonds-Wilson in that as soon as the plaintiff did contact the testator upon hearing of his ill-health the relationship was again positive. There could be no suggestion there was any rancour or hostility from either the plaintiff or the testator regarding their relationship.
Prior to 2004 the plaintiff had a good relationship with her father. It was the behaviour of the testator himself that in reality caused the period of there being no contact. The plaintiff has to accept some responsibility for allowing that problem to continue.
I have had regard to all of the evidence. The testator was a difficult man. He clearly was a man who wished to be in control of people. He had no insight into why his wife left him despite having inflicted violence upon her. He behaved poorly towards his son and to a lesser extent the plaintiff. The plaintiff has accommodated his behaviour for many years. Whilst there was a period of time when contact ceased, this was largely (although not entirely) as a result of the testator. Consistent with his attitude during the rest of his life he made no effort to contact his daughter. The defendant paid him attention and he therefore concentrated his attention in that direction.

Whilst it is a matter I take into account it is not determinative of the issue on the jurisdictional question.
Health
At the time of the testator’s death the plaintiff was still recovering from major surgery. Whilst he must have had some knowledge of her heart condition when she was a child he does not appear to have had much information about her later operations. I note that the plaintiff underwent two major operations during the time when contact had ceased.
The testator does not appear to have understood the nature of the quite severe health problems suffered by the plaintiff. Those problems clearly were going to affect her ability to continue working. It is likely that the testator was around this time understandably focussed on his own health needs.
On the whole of the evidence I am satisfied that the plaintiff has been left without adequate provision for her proper maintenance, education or advancement in life. The testator made his will not knowing the full extent of the plaintiff’s health and financial position. I find that the plaintiff has satisfied the first limb of the two stage test under section 7 of the Act.
What provision is to be made?
As discussed earlier the evidence discloses that the plaintiff’s current financial circumstances are worse now than at the date of death of the testator. All the other matters referred to are relevant in deciding this question.
I accept her evidence that she is unlikely to maintain work for Knowledge Global due in a large part to her health. Although she is an intelligent person it is most unlikely that she would obtain any other forms of paid employment. Her income is totally dependent on Knowledge Global which as of now is of very little value. Knowledge Global is in a worse position now due to the cancellation of the contract with Centennial Coal.
She currently has superannuation entitlements as at 30 June 2015 of a little over $22,000. Of more recent times she received an inheritance from the estate of her late mother’s second husband. That was in the amount of $105,000 and she has been living off that to an extent such that it has been reduced to $48,000. I accept the submission of Mr Edmonds-Wilson that it is most likely that the plaintiff will have to retire and be reliant on the aged pension.
Freedom of testamentary disposition - competing moral claims
In determining an application under section 7 the Court should have regard to the testator’s “moral duty” to people other than those within the statutory class of claimants. Mr Ower submitted that I should have regard to the totality of the relationship between the testator and a beneficiary and the financial circumstances of that beneficiary even though they are not an eligible claimant under the Act. He relied on the decision of Devereaux-Warnes v Hall (No 3)[164] a decision of the Court of Appeal of Western Australia. Buss JA analysed the cases of Re Saxon; Saxon v Elders Trustee & Executor Co Ltd[165] and also Kleinig v Neil[166] and Clemens v Byrnes[167] all were cited at paragraph 98 of the judgment.
[164] [2007] WASCA 235.
[165] (1975) 12 SASR 110.
[166] [1981] 1 NSWLR 462.
[167] [2007] NSWSC 421.
Having analysed those cases his Honour came to the conclusion that: [168]
A beneficiary who is not an eligible claimant may have a ‘moral claim’ on the testator’s estate arising, independently of the Act, from the totality of the relationship between the claimant and the testator and contemporary accepted community standards. The existence of such a ‘moral claim’ and its relative strength or weakness, or the absence of such a claim, is a relevant consideration at the first and second stages.
[168] Devereaux-Warnes v Hall (No 3) [2007] WASCA 235 [104).
His Honour further considered that those principles were consistent with the observations of Gleeson CJ in Vigolo v Bostin.[169]
[169] (2005) 221 CLR 191.
With respect I agree with the analysis of Buss JA and the conclusion drawn by him.
Thus the question arises as to whether in this case the defendant has any moral claim on the estate.
I have already found that the defendant was not an honest witness. In my view she deliberately attempted to mislead the Court on at least two occasions. She did not return for the balance of her cross-examination so her evidence as a whole has not been properly tested. One of the matters in which I found that she was not honest relates to the relationship she had with the testator after she first met him. I am not prepared to accept her evidence about that. It is not clear whether her mother’s evidence was meant to cover that early time. If it was I do not accept that evidence either because it is most unlikely that her mother was aware of the fact that the testator ended up taking court proceedings against her daughter.
However, from the rest of the evidence in the case, including the witnesses called by the defence, the plaintiff herself, and Mr Kotz, it does appear that from around 2004/2005 the testator and the defendant began to develop a relationship which became closer with the passage of time. Whilst the defendant knew the testator before that time I am not able to accept her evidence that in any way it was a close relationship at that time. Certainly by 2008 they had formed a close relationship. In my view it is no coincidence that this relationship started to strengthen around the same time as the plaintiff herself and the testator stopped having contact. That would be consistent with the behaviour of the testator. However, that is not the responsibility of the defendant. Indeed it is clear that the testator lied to the defendant about his background. He told her he had no children.
As there is support for the defendant’s evidence in this area I am prepared to find that from around 2004/2005 and in particular from 2008 until his death they had a strong relationship from which arose a moral obligation. For example, I find that in 2008 it was the testator who walked her down the aisle when she got married. I accept that when the testator was diagnosed with cancer she was of great assistance to him including driving him to appointments relating to his treatment and attending to his needs by cleaning his house, cooking, shopping and paying his bills.[170]
[170] This list is not exhaustive.
I am generally prepared to accept the defendant’s evidence about her financial position although I accept that this aspect of her evidence was not tested in cross-examination due to her decision not to continue her evidence.
Mr Edmunds-Wilson submitted that even if I was to find that a moral obligation arose from the relationship then the manner in which the defendant conducted the defence should prevent her from putting to the Court that the plaintiff’s claim should be reduced or limited because of the defendant’s claim to retention of the benefits given to her under the will. He cited no authority for this proposition.
I reject that submission of Mr Edmunds-Wilson. In my view the manner in which she conducted her defence only goes to the question of whether there was sufficient evidence on which to make a finding that a moral duty arose. If it did arise, as I have found on the other evidence in the case, then I do not think it is appropriate to deny the operation of that moral duty toward the defendant in assessing the plaintiff’s claim.
Summary
The plaintiff is passionate about her work and area of expertise. Unfortunately, her impressive work history has not provided her with any form of savings or financial security. Her financial position is very poor. She has invested a great deal of her own funds into “start up” unprofitable companies that in the end have not been successful. At times she has been in receipt of Centrelink benefits. She has also accessed her superannuation during times of financial hardship. She has accumulated debts with the tax office. She owns no real property. Her superannuation is modest. She is now 66 years of age. She has significant and long-standing health issues. She will be reliant upon the age pension.
I accept that I should take into account the fact that there is a competing moral claim over the estate.
I take into account the matters discussed above when exercising my discretion.
Order
I order that pursuant to section 7 of the Act provision be made out of the estate of Kevin John Cock to the plaintiff in the sum of $725,000.
I will hear the parties as to the terms of the order and costs.