Condon v The Public Trustee (As Executor of the Will of Michael Christopher Condon (Dec)) - [2003] WASC 133

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CONDON & ANOR -v- THE PUBLIC TRUSTEE (As Executor of the Will of MICHAEL CHRISTOPHER CONDON (Dec)) & ANOR [2003] WASC 133

CORAM: MASTER NEWNES

HEARD: 4 JUNE 2003

DELIVERED : 17 JULY 2003

FILE NO/S: CIV 2622 of 2000

BETWEEN: LAUREN CONDON
First Plaintiff
CHRISTOPHER PAUL CONDON
Second Plaintiff
AND
THE PUBLIC TRUSTEE (As Executor of the Will of MICHAEL CHRISTOPHER CONDON (Dec))
First Defendant
TYRONE REDMOND CU-CULAINN CONDON (By his guardian ad litem PAULINE PHILIP)
Second Defendant

Catchwords:

Succession - Inheritance Act - Whether adequate provision for children of first marriage - Turns on own facts

Legislation:

Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6

Result:

Application successful in part

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr M J Bateman
Second Plaintiff            :     Mr M J Bateman
First Defendant             :     Ms N N Oldfield
Second Defendant         :     Ms P G Giles

Solicitors:

First Plaintiff                :     Batemans
Second Plaintiff            :     Batemans
First Defendant             :     Public Trustee
Second Defendant         :     Butlers

Case(s) referred to in judgment(s):

Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494
In re Allen (Dec); Allen v Manchester [1922] NZLR 218
Kitson v Franks [2001] WASCA 134
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re Sinnott (1948) VLR 279
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin & Ors [2002] WASCA 327

Case(s) also cited:

Anderson v Teboneras [1990] VR 527
Baird v National Mutual Trustees Ltd & Attorney-General for the State of Victoria, unreported; SCt of Vic (Harper J); 22 November 1995
Benney v Jones (1991) 23 NSWLR 559
Blore v Lang (1960) 104 CLR 124
Cooper & Anor v Dungan (1976) 9 ALR 93
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134
In re Borthwick (Dec); Borthwick v Beauvais [1949] Ch 395
In re Paulin [1950] VLR 462
In re Will of Gilbert (Dec) 91946) 46 SR (NSW) 318
Lacey v Lacey, unreported; SCt of WA; Library No 980359; 25 June 1998
McCosker v McCosker (1957) 97 CLR 566
Plowman v Plowman (1970) 16 FLR 447
Re Adams (Dec) [1967] VR 881
Re Buckland (Dec) [1960] VLR 413
Re J [1947] ALR 496
Re Nassim (Dec) [1984] VR 51
Sampson v Sampson & Perpetual Executors & Trustees and Agency Co (WA) Ltd (1945) 70 CLR 585
Vigolo v Bostin [2001] WASC 335
Wentworth v Wentworth (1992) 66 ALJR 792
White v Barron (1980) 144 CLR 431
Worladge v Doddridge (1957) 97 CLR 1

MASTER NEWNES: This is an application by the plaintiffs under the Inheritance (Family and Dependants Provision) Act 1972 ("the Act") for a share in the estate of their deceased father. The deceased died on 21 April 2000 in Western Australia. The plaintiffs are the children of the deceased by his first marriage, to Pauline Condon, and they reside in County Kildare in the Republic of Ireland. The deceased and Pauline Condon were divorced in September 1991. The second defendant appears by his guardian ad litem and is the son of the deceased by his second marriage to Helen Forster. Helen Forster died on 28 September 1996. By his will, made on 18 February 1998, the deceased left his entire estate to the second defendant if he attains the age of 25 years and otherwise equally between such of the plaintiffs as survive the deceased and the second defendant.
The estate of the deceased is not a large one. As at 9 April 2003, the assets of the estate consisted of a cash amount of $230,184.58 and several unrealised items, the only ones of any significant value being two blocks of land at Tambellup which were valued as at the date of the deceased's death at $22,000. There is no current valuation. There are outstanding liabilities of the estate for land tax (which has not been quantified), further costs in relation to the Tambellup land (such as firebreaks and sale costs), income tax (estimated at $2385 including the preparation of income tax returns) and fees and expenses payable to the first defendant.
The present claims are made under s 6 of the Act, which provides as follows:
"6.Claims against estate of deceased person
(1)If any person (in this Act called 'the deceased') dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 of this Act as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
(2)The Court in considering for the purposes of subsection (1) of this section whether the disposition of the deceased's estate effected by the law relating to intestacy, or by the combination of the deceased's will and that law, makes adequate provision for the purposes of this Act shall not be bound to assume that the law relating to intestacy makes adequate provision in all cases.
(3)The Court may attach such conditions to the order as it thinks fit, or may refuse to make an order in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient.
(4)In making any such order the Court may, if it thinks fit, order that the provision may consist of a lump sum or a periodical or other payment."
It is well established that the application of s 6 of the Act to the facts of the case involves two distinct steps.
In Singer v Berghouse (1994) 181 CLR 201, Mason CJ, Deane and McHugh JJ held, at 208 ‑ 210, that:
"It is clear that, under these provisions, the court is required to carry out a two‑stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant. The first stage has been described as the 'jurisdictional question'. … That description means no more than that the court’s power to make an order in favour of an applicant … is conditioned upon the court being satisfied of the state of affairs predicated [in s 6(1)]
…
The first question is, was the provision (if any) made for the applicant 'inadequate for [his or her] proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance."
The Court then went on to consider the nature of the two‑stage inquiry. Their Honours said (at 210 ‑ 211):
"Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments … The evaluative character of the decision stems from the fact that the court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.
…
The decision made at the second stage, by contrast, does involve an exercise of discretion in the accepted sense."
Although there are differences between the provisions which were considered by the High Court and the provisions of the Act, it is clear that the reasoning of the High Court is generally applicable to s 6 of the Act: Kitson v Franks [2001] WASCA 134.
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, Dixon CJ said, at 19:
"It has often been pointed that very important words in the statute are 'adequate provision for the proper maintenance and support' and that each of these words must be given its value. 'Adequate' and 'proper' in particular must be considered as words which must always be relative. The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."
It was for a long time accepted in Australia that the correct approach to be taken under legislation of this kind was as stated by Salmond J in In re Allen (Dec); Allen v Manchester [1922] NZLR 218:
"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."
However, in Singer v Berghouse (supra), at 209, the majority of the High Court doubted, in obiter dicta, that that passage "provides useful assistance in elucidating the statutory provisions" and said that references to "moral duty" or "moral obligation" may well be understood as amounting to a gloss on the statutory language.
In Vigolo v Bostin & Ors [2002] WASCA 327, Sheppard AUJ (with whom Steytler and Parker JJ agreed) reviewed the authorities on that issue and expressed a preference for the views stated by Kirby P and Sheller JA in the decision of the New South Wales Court of Appeal in Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24. In that case, Kirby P considered that the concept of "moral duty" was a gloss on the statutory language and considered that the obiter dicta of Mason CJ, Deane and McHugh JJ in Singer v Berghouse should be followed. Sheller JA was of a similar view. His Honour said, at 46:
"To achieve what is seen to be the legislative intention and bring some certainty into the application of the Family Provision Act, the courts have developed principles and standards which have been applied in determining applications under the Family Provision Act and its predecessor. One such was that the provision a just and wise testator would have thought it his or her moral duty to make in the interests of the prescribed claimants had he or she been fully aware of all the relevant circumstances.
In deciding whether the provision for an eligible person is inadequate for that person's proper maintenance, education or advancement in life the court should be guided by consideration of the provision which, in accordance with prevailing community standards of what is right and appropriate and in the circumstances mentioned in the Family Provision Act and then obtaining, ought be made in favour of the eligible person … I do not think this approach produces any different result from that reached by reference to the concept of moral obligation or duty as that expression had generally been understood or used by the courts. However it avoids doctrinal and inflexible judge made rules and it fulfils the court's function … of speaking for the feeling and judgment of fair and reasonable members of the community."
It seems to me then that, in the end, the first stage involves the question whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life, having regard to prevailing community standards of what is right and proper in that regard. That question is, strictly speaking, one of fact, although it does involve the exercise of value judgments.
Whether a different approach is to be taken, where the question of whether adequate provision has been made arises in the case of adult children, has been discussed in a number of cases. In Re Sinnott (1948) VLR 279, at 280, Fullagar J said:
"No special principle is to be applied in the case of an adult son. But the approach of the court must be different. In the case of a widow or an infant child, the court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to 'maintain and support' himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the court under the Act."
The issue was discussed in Bondelmonte v Blanckensee [1989] WAR 305 by Malcolm CJ at 309 ‑ 10, where his Honour considered that Fullagar J was not intending to lay down a rule of law or any principle.
In Kitson v Franks (supra), Parker J at [69] concluded that no distinct test is to be applied involving any notion of special need or special claim simply because a respondent is an adult. Such factors are merely to be weighed in determining whether adequate provision has been made for such a claimant in the will of the deceased. In that case, Malcolm CJ considered that if "special need" was indeed required, it existed not only because the claimant was on a pension and without significant assets, but also because she was contributing to the maintenance and support of two of her children and her aged mother.
It is clear that what is described as the jurisdictional question, namely, whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance, support, education or advancement in the life of the claimant, is to be determined as at the date of death of the deceased: Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494. If that question is answered in the affirmative, the Court must then exercise its discretion to make such provision as it thinks fit, taking into account the relevant facts as they exist at the time of making the order: Bondelmonte v Blanckensee (supra) per Malcolm CJ at 307.
In determining whether the plaintiffs have been left without adequate provision in all the circumstances for their proper maintenance, support, education or advancement in life, it is necessary to consider the financial position of each applicant; the size and nature of the deceased's estate; the totality of the relationship between each applicant and the deceased; and the relationship between the deceased and other persons who have legitimate claims on his bounty: Singer v Berghouse (supra).
It is against that background the present claims fall to be determined.
The facts relevant to this application are not seriously in dispute. The deceased was born in London in 1953, although his family was of Irish extraction. He married Pauline Condon ("Mrs Condon") in Waterford in the Republic of Ireland on 21 July 1979. At the time, the deceased was a labourer, but it seems he did not work for very long after the marriage. Their first child, the first plaintiff, was born on 14 January 1981. At about that time, the deceased gave up work and, according to Mrs Condon, he did not work again during their marriage. As a consequence, Mrs Condon, who had recently qualified as a radiographer, says she had to return to work almost immediately after the birth of the first plaintiff. The task of looking after the first plaintiff while Mrs Condon worked was taken on by the deceased, although it appears that his efforts in that regard were something less than satisfactory, as he began to exhibit signs of a problem with alcohol.
On 24 October 1982, the second plaintiff was born. As a result of problems associated with the birth, Mrs Condon was in hospital for a period of some seven weeks, during which time the first plaintiff was looked after by Mrs Condon's family. According to Mrs Condon, while she was in hospital the deceased attempted to construct an extension to the house they were buying, but due to his intoxicated state, caused such damage to the house that it was rendered uninhabitable. Upon her discharge from hospital, Mrs Condon, the deceased and the plaintiffs moved in with Mrs Condon's sister. As they were unable to maintain payments on the mortgage over the house, it was sold by the mortgagee. Nothing was left after the mortgage debt was discharged.
It seems that things did not improve. The Condons moved to England in 1984 and, after initially staying with friends, eventually finished up in what Mrs Condon describes as a hostel for the homeless. She said she had difficulty working because she regarded the deceased as too unreliable to mind the children. They finally returned to Ireland in 1985. Mrs Condon then obtained a job as a radiographer at Waterford Hospital, but difficulties arose once again because the deceased was drinking heavily and was not a reliable minder of the children.
In June 1987, Mrs Condon and the plaintiffs moved into Mrs Condon's father's house. They subsequently obtained rental accommodation. On 3 September 1987, Mrs Condon and the deceased entered into a separation agreement which provided for maintenance to be paid by the deceased in respect of the plaintiffs and for the deceased to have access to them.
According to Mrs Condon, the deceased did not pay any maintenance, and, although initially he made some attempts to see the children, he often failed to turn up for arranged visits. Finally, in 1988, the deceased left for Scotland. Although for a month or so after that he telephoned the children approximately twice a week, effectively all contact then ceased. Subsequently, the deceased left Scotland for Australia.
In 1991, the deceased applied in Australia for a dissolution of the marriage and the decree absolute was granted on 29 September 1991.
In early 1992, the deceased met and formed a relationship with Helen Forster, who was then on holiday in Australia from Scotland. The second defendant was born of that relationship on 31 December 1994. Helen Forster and the deceased were married in Australia on 14 February 1995. In 1996, the deceased, having obtained work as a rigger and stonemason, was injured at work. He apparently subsequently received a compensation payment in the order of $215,000. However, on 28 September 1996, shortly after the accident, Helen Forster committed suicide.

In an affidavit filed in these proceedings, Helen's father, James Forster, says that when he arrived in Australia about a week after Helen's death, he found the deceased and the second defendant living with a Mrs Lorraine Chalmers. The deceased had a mattress on Mrs Chalmers' bedroom floor and the second defendant had his own room. The deceased was drinking heavily and was not working.
It seems that subsequently the deceased obtained other accommodation in which he lived with the second defendant, but that did not last long and the deceased and the second defendant apparently returned to live with Mrs Chalmers late in 1998.
At some later stage, at a time and in circumstances that are not explained in the evidence, the deceased moved into a caravan, in which he died on 21 April 2000.
Just prior to Easter 2000, the Department of Family and Children's Services placed the second defendant in foster care with Mr and Mrs Seet, who had been registered foster carers with the Department since November 1998. Mrs Seet says that at the time the second defendant exhibited serious behavioural problems. Those problems still existed when, in August 2000 Pauline Philip, Helen Forster's sister, came to Australia and made an application to the Family Court for an order that she and her husband have joint parental responsibility for the second defendant. That order was made on 17 August 2000 and shortly afterwards Mrs Philip returned to Scotland with the second defendant.
Mrs Seet says she was concerned that, because of the second defendant's difficult behaviour, the arrangement to live with the Philip family would not be successful. She therefore maintained contact with Mrs Philip and the second defendant by e‑mail and occasional telephone calls. Mrs Seet's concern turned out to be well‑founded. The situation deteriorated to the point that Mrs Philip made a decision to place the second defendant in foster care in Scotland. When she learnt of that, Mrs Seet suggested that the second defendant return to live with the Seet family in Australia. Mrs Seet drafted an agreement as to the terms on which the second defendant would return to them. The object of the agreement was to transfer effective guardianship from Mr and Mrs Philip to Mr and Mrs Seet and relieve Mr and Mrs Philip of any continuing responsibility, including any financial responsibility, for the second defendant.
The second defendant returned to the Seet family in March 2001 and has lived with them ever since. It appears from Mrs Seet's evidence that his behaviour has now improved markedly, to the point where he is able to participate fully in family and school life in a normal way. His previous disruptive, and often aggressive, behaviour has subsided. He is making good academic progress at school.
In late March 2003, the Seet family, including the second defendant, moved to England. Mrs Seet said the decision to move was motivated principally by reasons associated with her husband's work. Both Mrs Seet and the second defendant have British citizenship.
Although this application was heard in June 2003, the only information provided by the plaintiffs as to their circumstances was that contained in their affidavits of January 2002. The first plaintiff's affidavit was sworn on 15 January 2002 and the second defendant's affidavit on 24 January 2002.
It is apparent from those affidavits that, understandably, the plaintiffs have only a limited recollection of the deceased before he left Ireland. Both say, however, that they recall him being their principal minder in their very early years. It is also apparent that both of the plaintiffs experienced embarrassment and a sense of deprivation during their school years from the absence of their father, at a time when, they say, separation and divorce were relatively uncommon in Ireland.
The plaintiffs did, however, visit the deceased in Australia in about June 1998. They had learned through their paternal grandfather of the deceased's marriage, the birth of the second defendant and the death of the second defendant's mother. They also learned that their father wished to see them both again and for them to meet the second defendant. Their fare was paid by the deceased.
The visit was not an unqualified success. It appears the deceased had made no real provision for their accommodation and, at the time, he was living in a caravan. The plaintiffs say that the second defendant was then with foster parents. Mrs Chalmers offered to accommodate the plaintiffs while they were in Australia. It seems that their contact with the deceased while they were in Australia was limited. The deceased was drinking heavily and in the last week of their five‑week visit the plaintiffs did not see him at all. Mrs Chalmers took them to the airport and saw them off.
The first plaintiff completed her secondary education in June 1998 and then took up an apprenticeship in hairdressing. At the time of her affidavit in these proceedings, on 24 January 2002, she was not pursuing the apprenticeship as she had become a single parent, her child having been born on 2 May 2001. In January 2002 she was living in a bed‑sitter in County Waterford with her child. The first plaintiff says she has no intention of marrying the father of her child. She intends to resume her apprenticeship when she is in a position to do so. The first plaintiff currently receives a single parent benefit of 126 Euros per week and assistance on a weekly basis from her mother of varying amounts, but which she calculates at approximately 75 Euros per week. Her living expenses for herself and her child she calculates at 206.77 Euros per week.
The second plaintiff has also completed his secondary schooling. When he completed it is not mentioned in the affidavit material, but on 10 September 2001 he enrolled in a sound engineering course at Temple Bar College, Dublin. The fees for the course, which are 3000 pounds per annum, are being paid by Mrs Condon. The course will qualify the second plaintiff to be a sound engineer in the radio, television or recording industry. The second plaintiff does not say how long the course is, but there is exhibited to his affidavit an invoice for the fees of 3000 pounds which describes it as a 32‑week course.
At the time of his affidavit in these proceedings, 24 January 2002, the second plaintiff was living at home and was being supported by his mother. He estimated his weekly living expenses at 115.77 Euros.
In their affidavits, both plaintiffs refer to their disappointment and sense of rejection at being effectively ignored in the deceased's will. There is nothing in the evidence to suggest there had been any falling out between the plaintiffs and the deceased. In his affidavit, Mr Forster says he spoke to the deceased in 1996, after Helen Forster's death, and the deceased told him he had not provided for the plaintiffs in his will because he had property in Ireland that they would eventually inherit. There is, however, no evidence that any such property existed then or exists now. Mrs Condon says she knows of no property owned by the deceased in Ireland. In light of the deceased's lifestyle and work habits, it seems unlikely that such property existed either at the date he made his will or at the date of death. It is impossible to know now why the deceased made that statement to Mr Forster.
As I have said, the only evidence of the plaintiffs as to their circumstances is that contained in their affidavits of January 2002. There is also some evidence on that subject in Mrs Condon's affidavit of 15 January 2002. There is no evidence directed specifically to the position as at the date of the deceased's death on 21 April 2000.
What is apparent from the evidence, however, is that at that date the first plaintiff was aged 18 years and had completed her schooling and had apparently embarked upon the apprenticeship in hairdressing. It is, I think, reasonable to infer that then, as when she swore her affidavit on 15 January 2002, she had no assets or liabilities. It does not appear clearly from the evidence whether or not the first plaintiff was then still living at home or being supported by her mother to any extent.
The position of the second defendant is also somewhat unclear. At the date of the death of the deceased the second defendant was 17 years of age. As he commenced the sound engineering course on 10 September 2001, apparently straight after finishing his secondary schooling, I infer that he was completing his schooling at the time of the deceased's death. It appears that then, as at 24 January 2002 when he swore his affidavit, the second defendant was living at home and financially was wholly dependant on his mother. Once again, it would appear that he had neither assets nor liabilities.
As I have said, there is, and can be, no suggestion that the plaintiffs had alienated their father's affection. Indeed, given their ages, it is not easy to conceive how they could. No purpose is served by conjecture as to why the deceased had effectively no contact with the plaintiffs between 1988 and 1998. Suffice it to say that that was a course the deceased took for reasons of his own. Moreover, it is, I think, clear from the fact that he sought to renew his relationship with them in 1998 that, in his own way, the deceased retained his affection for them.
It is apparent that the position of the second defendant as at the date of the deceased's death was quite bleak. At about that time he was placed in foster care. He was 5 years old. His mother had died several years earlier. He was an orphan and had no extended family in Australia. It is not difficult to infer from the limited evidence available that his life up to that point had been difficult and disrupted. It was clear that his future financial needs would be substantial.
Nevertheless, when regard is had to the position of the plaintiffs, I am satisfied that the deceased's will did not make adequate provision for their maintenance, support or advancement in life. It is not, of course, to the point that the plaintiffs have apparently always lived in modest, even straitened, circumstances. That has occurred through no fault of their own.
That leads to the question of what provision ought to be made for the plaintiffs out of the deceased's estate. That involves similar considerations to those that arise under the first stage.
The Court in exercising this discretion must place itself in the position of the deceased and "consider what he ought to have done in the circumstances of the case, treating the … [deceased] for that purpose as a wise and just, rather than a fond and foolish, … father": Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478 ‑ 9. There always lies in that the difficulty of assuming that the Court adequately knows the circumstances of the case. In this case, however, the area of factual controversy was very limited indeed and I think the issues facing such a father can be sufficiently ascertained.
As I have said, the second defendant is in the full‑time care of Mr and Mrs Seet. He is now 8 years of age. Mr and Mrs Seet have three children of their own, all aged under nine years. Mrs Seet is a full‑time mother. Mrs Seet gave evidence that from March 2001, when the second defendant returned to the Seets' care, they did not receive foster care payments for him and the only allowance they received in respect of him was an orphan pension of $40 per fortnight. Mrs Seet said in evidence that she understood once the Family Court order was obtained by Mrs Philip, the second defendant ceased to be under the care of the Department of Family and Children's Services and the foster care allowance of $160.71 (plus certain allowances) ceased to be payable. As Mrs Philip continues to be his legal guardian, that continues to be the case. The allowance would only be payable if the second defendant was placed under the care of the Department and placed by it with foster carers. Mrs Seet said she would not take that step in order to obtain the foster care allowance because, among other things, there was no guarantee that the Department would place the second defendant with her. Mrs Seet said "I have always considered that a stable family life for Tyrone is more important than monetary issues." Having had the opportunity to observe Mrs Seet under cross‑examination, I have no doubt that her only concern is the welfare of the second defendant and that the Seets have taken on his care, and to date have incurred significant expense, without thought of recompense.
In any event, the question of the possible availability of such a social security benefit is not, in my opinion, material to the determination of this matter.
Mrs Seet said that eventually she and her husband would like to adopt the second defendant, but they had not initiated that procedure yet because of the expense and the requirement that the child be in the care of their prospective adoptive family for three years.
In two affidavits, sworn on 26 May 2003 and 27 May 2003 respectively, Mrs Seet has deposed to the family's circumstances since moving to the United Kingdom in March 2003. Mr Seet has obtained employment and the family has obtained accommodation suitable to their needs. It is apparent that Mr Seet has an income which enables the family to live in reasonable comfort, although not lavishly. At the time of these affidavits, Mrs Seet, who was registered in Australia for home schooling, was teaching all of the children, including the second defendant, at home with the intention that as soon as they were settled in their new accommodation all of the children would be enrolled together at the local primary school.
Mrs Seet has calculated the estimated living expenses of the second defendant. They come to a total of A$11,937 per annum. They include items for rent and food which Mrs Seet explained had been arrived at by allocating a pro rata amount of the total family costs to the second defendant. Mrs Seet says that they receive no fostering allowance or other benefits in respect of the second defendant. They will, after six months' residence, be entitled to normal child benefits for each of the children, including the second defendant, in an amount which Mrs Seet believes to be about A$26 per child.
I have referred above to the position of the plaintiffs, so far as it appears from the evidence. In the absence of more up to date evidence, I must infer that the position of the plaintiffs is at least no worse than that set out in their affidavits of January 2002. So far as the second plaintiff is concerned, he is now 20 years of age and, if he has not finished his tertiary studies, he is well on the way to doing so. He is now, or will very shortly be, in a position to start to make his own way in the world. He has had the benefit of tertiary education and there is no reason to believe that he will not be able in due course to earn a comfortable living. Having said that, he is still at the start of his working life and is yet to establish himself. He starts without any financial resources behind him.
The position of the first defendant is somewhat more problematical. She is now 22 years of age. Her training as a hairdresser remains incomplete and she now has a child to support as a single parent. She has no assets and remains dependent on social welfare payments and the money she receives from her mother. It is not clear when she will be able to finish her training or to enter the workforce in some other capacity. Her need, in my view, is greater than that of the first plaintiff.
Doing the best I can on the information available to me, I consider that the provision which should be made for the first plaintiff is 20 per cent of the estate and for the second plaintiff is 10 per cent of the estate.
I will hear the parties on the form of orders and costs.