Dolman v Palmer - [2005] NSWSC 327

No judgment structure available for this case.

CITATION:
Dolman & Anor v Palmer [2005] NSWSC 327

HEARING DATE(S): 29/03/05, 30/03/05 and 31/03/05

JUDGMENT DATE :

31 May 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Master Macready at 1

DECISION:
Paragraph 88

CATCHWORDS:
Family Provision. Application by an ex wife and daughter of deceased. Property settlement with ex wife affected by deceased's failure to fully disclose his assets. Existence of factors warranting the making of the application under s9(1) of the Family Provision Act 1982. - Daughter deliberately cuts off all contact with deceased for last 12 years of deceased's life. Her claim dismissed.

PARTIES:
Fiona Dolman & Pamella Dolman v Michael John Palmer (Estate of late William Lance Dolman)

FILE NUMBER(S):
SC 6383 of 2003

COUNSEL:
Mr D.E. Grieve QC with Ms D. Coulton for plaintiffs
Mr C.J. Bevan for defendant

SOLICITORS:
Vizzone Ruggero & Associates for plaintiffs
Turner Freeman for defendant

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Tuesday 31 May 2005

6383/03 Fiona Ann Dolman and Pamella Anne Marea Dolman v Michael John Palmer

JUDGMENT

1 Master: This is the hearing of claims under the Family Provision Act 1982 in respect of the estate of the late William Lance Dolman who died on 2 April 2003 aged 71 years. He s survived by his two wives and his two children from his first marriage. The first plaintiff is the deceased's daughter and the second plaintiff is his first wife. The defendant is a friend of the deceased who was appointed his executor. The deceased’s second wife and a former de facto partner have been given notice of the proceedings and make no claim.

The last Will the deceased

2 The deceased made his last Will on 1 April 2003 and left his property as to one half share to his son Gregory. He gave 25% to his sister and brother-in-law Paula and John Chestnut, 7.5% to his nephew Colin Chestnut and his wife Jean, 5% to his sister and brother-in-law June and John Bennett, 2.5% to the defendant and his wife Jean, 5% to Eugene and Joyce Odgers and the remaining 5% to Sheryl M Lee, a former de facto partner. He made no provision for either plaintiff. The deceased left statutory declarations in which he set out the reasons why he made no such provision.

3 In respect to the first plaintiff he said:

“2 I have made no provision in my Will for my daughter Fiona Dolman for reasons including that she has made no contact with me, that is she has not visited me until very recently and has shown no interest in my welfare, even though she is aware that I have been ill in hospital. ”

4 In respect to the second plaintiff he said:

“3 I have made no provision in my Will for my ex-wife, Pamela Dolman, for reasons including the we have been divorced now for more than 10 years and, at about the time of our divorce, we reached an agreement which was endorsed by the family Court of Australia whereby my ex-wife received and adequate property settlement and also that she has, since our divorce, shown no interest in my welfare and has made no contact with me. ”

The estate of the deceased

5 The deceased’s estate substantially consisted of the deceased’s home at 116 lower St Georges Crescent, Drummoyne. The value of the estate was estimated to be $4,968,846.45 before the sale of the deceased’s home. There has been a distribution of $1,470,835.56 and the amount now left in the estate after the sale of the home for a gross price of $4,125,000 is $3,036,087.88. There have been substantial costs incurred in the matter. The plaintiff's costs are estimated at $152,155.64 and those of the defendants at $131,000. This is a total of $283,155.64.

The family history

6 The deceased was born on 16 December 1931 and his first wife was born on 22 June 1934. They married on 18 November 1962 and had two children. Gregory their son was born on 15 June 1963 and Fiona who is the first plaintiff was born on 7 December 1971.

7 The deceased acquired in his own name the property at 116 Lower St Georges Crescent, Drummoyne on 6 July 1967. The whole family resided there until Gregory and left home in April 1984. In the middle of 1984 there was a separation between the deceased and his wife after 22 years of marriage. At that time the deceased occupied the upstairs of the property and his wife and the plaintiff Fiona occupied the ground floor of the property. It is plain that they lived totally separate lives from this time onwards. At this stage Fiona was 12 years of age.

8 In 1990 the deceased and his wife were divorced. They finalised their property arrangements with a property settlement in March 1991. Under the settlement the deceased retained the home at Drummoyne, then valued at $900,000 and paid $500,000 to his wife, provided her with a car and all the furniture located on the ground floor of the Drummoyne property.

9 By July 1991 the second plaintiff had received the balance of payments under the property settlement and purchased a property at 13 Speed Avenue, Rodd Point, for the sum of $287,000.

10 In August 1991 Fiona completed various courses and commenced her first full-time employment. At about that time the second plaintiff made a will in which she left her estate equally between her two children Fiona and Gregory Dolman.

11 After the purchase of the property at 13 Speed Avenue the plaintiffs moved into occupation and the deceased remained living in the Drummoyne property which he had retained. From time to time Fiona received birthday cards and other cards from her father. In 1993 or 1994 Fiona wrote an angry letter to her father which she described as her being brutal in her honesty about the way she felt towards her father and asked her father to stop sending her cards. He did however respond in detail to the letter. There was no further contact between them until the deceased was admitted to hospital in March 2003.

12 However, there was an occasion in 1995 when Fiona was driving past her father's house. Her father was outside and they made eye contact with each other. Fiona continued on to visit an old neighbour and she made no attempt to see her father.

13 After the move to Rodd Point the second plaintiff, the deceased’s former wife, had no further contact of any consequence with the deceased.

14 In March 1999 the deceased married Wintel Sandro, a widow of a doctor, in Georgia, USA. He went there to live with her. This marriage was dissolved on the 25 June 2001 and the deceased entered into a property settlement with his second wife.

15 Towards the end of 2002 the deceased informed his son, Gregory, that he had been diagnosed with mesothelioma. Although his father was hopeful he would get better mesothelioma is normally a fatal disease. He says that his father asked him not to tell Fiona or his former wife about the diagnosis. On 15 March 2003 Fiona learned from her father's next-door neighbour that her father had cancer and had less than two weeks to live. She did not visit him at this stage.

16 On 27 March 2003 Gregory informed his sister Fiona of the deceased’s illness and that he only had a few weeks to live. On 30 March 2003 Gregory arranged for Fiona to visit her father in hospital. A hearing of his claim in the Dust Diseases Tribunal was held at his bedside on 1 April 2003. On that day he also made his last will and executed the statutory declarations to which I have earlier referred. He died the following day 2 April 2003.

17 These proceedings were commenced within the time limited under the Act.

The eligibility of the plaintiffs

18 Both the plaintiffs are eligible persons. However the second plaintiff, Pamela Dolman, must establish the existence of factors warranting the making of the application under section 9(1) of the Act.

19 The question of factors warranting in respect of former spouses has been dealt with in a number of cases. In Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639, a number of the Judges dealt with this matter. Kirby P had the following to say:

"Fifthly, the respondent, picking up one of the themes of Mr Landa's comments, urged that s 9(1) of the Act was to be read in the light of the policy of the law to promote the finality of settlements of property disputes by orders made in the Family Court. Where such orders had been made, an order under the Act in the case of a former spouse should be exceptional. Only if this approach were adopted would the policy of the Family Law Act (Cth) be fully achieved. That policy is that parties whose marriage has been dissolved and in respect of whom orders have been made disposing of their matrimonial property, could go their separate ways . Save for the rare and exceptional cases provided under the Family Law Act (Cth), such parties should henceforth face no financial obligation from one to the other. This public policy was referred to by Young J in O'Shaughnessy (at 149). It was also stressed by his Honour in the present case. There is no doubt that in most cases, the achievement of a final property settlement in the Family Court would be seen by the parties, in current social circumstances, as terminating any moral claim of a former spouse to provision in the will of the other. Confronted by the news that he or she had been excluded from the will of the former spouse, the response would, in the overwhelming majority of cases, be: 'Our marriage was dissolved. We settled our financial affairs. We can each start a new life. That was the whole point of the Family Court proceedings.' To this extent, I agree with what Young J has written in O'Shaughnessy and in this case."

20 Mahoney JA said the following:

"That which the court 'shall first determine' is whether 'there are factors which warrant the making of the application'. That phrase may be contrasted with the references otherwise made to the determination of, for example, 'what provision (if any) ought to be made in favour of an eligible person...'. On the face of s 9(1) there is a distinction between 'factors which warrant the making of the application' and factors which warrant the making of an order.

That distinction accords with the principle which, in my opinion, is inherent in the legislation, viz, that, special cases apart, an order is to be made only if the deceased has made default in the performance of a duty which he owed to the particular plaintiff. I do not think that this case requires a final analysis of the basis of applications under the Act: It will be sufficient to refer to this matter in general terms. But the Act authorises the court to 'order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person' (s 7). That does not mean that, if the plaintiff establishes a financial need within the section and if on taking into account the considerations referred to in s 9(2) (the discretionary considerations) there be nothing to the contrary, an order must be made. The statute assumes that the deceased, in what he has done during his life and by his will, has failed to discharge a duty which he owed to the plaintiff (the moral duty). Thus, a plaintiff may be a former spouse who, on dissolution of the marriage, received what on any view she was entitled to have and there may have been no further relationship between them so that none of the factors in s 9(3)(a) to s 9(3)(c), are of relevance. But, at the deceased's death, she may have a financial need. In such circumstances, the fact that the plaintiff has established that she was a former spouse and has a financial need would not, as such, entitle her to an order. It would be necessary for her to establish that, in some way or because of circumstances within s 9(3)(d), the deceased had a duty to her which involved that he should have provided for her financial need. This will be so a fortiori where the basis for the eligibility of the plaintiff is alleged to be within par (d) of the definition of 'eligible person'." Importantly, it can be seen that the question of need is a separate matter and factors warranting are something different from that.

21 In another case, Churton v Christian (1988) 13 NSWLR 241, his Honour Priestley JA said the following, in respect of this type of application:

"Mrs Christian is a member of a class in respect of whom warranting factors may often be more difficult to find. It is common experience that divorce sometimes brings to an end all links between previously married people. In such cases, warranting factors might well be expected usually to be absent, although this need not be universally so. On the other hand, divorced persons may remain on close terms, sometimes little different from those on which they lived when married. In every case it is necessary to examine the actual relationship between the two people concerned, as far as possible without preconceptions based only on the fact of divorce."

22 In his comments he illustrated a situation which sometimes applies after there has been a divorce and a property settlement, namely, that the parties still continue to have a close association.

23 In recent times there has been further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, [1998] NSWSC 563 a decision given on 13 November 1998 which is a decision of Sheller JA, Sheppard and Fitzgerald AJA. The main judgment was given by Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application had reasonable prospects of success. This seems to be a somewhat different and perhaps easier test than what was referred to in the other cases of the Court of Appeal to which I have referred. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

24 In the present case the basis upon which it is suggested that the existence of factors warranting on the traditional grounds are demonstrated is what the second plaintiff alleges was a misleading to the Family Court and her as to the nature of the deceased’s assets of the time of the property settlement. It is always open during the lifetime of the parties to set aside such a property settlement. The relevant provision in the Family Law Act is section 90K which includes the following provisions:

25 The section allows the setting aside of an agreement because of fraud or unconscionable conduct by a party. No doubt if the circumstances in this case included either of these criteria one could consider that the existence of those circumstances discovered after the death of a party would ordinarily be factors warranting the making of the application. As is illustrated by the comments of Priestley JA in Churton v Christian the concept of factors warranting extends to wider factual circumstances.

26 In a number of cases there have been attempts to suggest that a property settlement was inappropriate and for that reason alone there existed factors warranting the making of the application. Examples include Mulcahy v Weldon [2001] NSWSC 474. That was a decision of Bryson J in which His Honour concluded in paragraph 24 that there was no evidence that the settlement was not just and adequate or that it could be set aside by the Family Court. Another is Cannell v Seary (unreported) a decision of Master McLaughlin of 22 August 1997 in which it was submitted that the failure to take into account the husband’s superannuation at the time of the property settlement were factors warranting under s 9(1). The learned Master found on the facts that the parties each had appropriate legal representation, that both parties had superannuation of which each was aware at the time. As a consequence he found there were no factors warranting under s 9(1).

27 In a decision of Lynch v Lynch unreported 24 August 1992 I commented that the demonstrable unfairness (although on legal advice) of a settlement may be a factor warranting the making of the application. In that case there were also other factors, which related to the caring of the deceased by the plaintiff after the property settlement. In the present case what is alleged is a serious misleading of the court as to the deceased's assets at the time of the settlement. I turn to the factual circumstances which have been disclosed which of course are highly relevant to deciding whether or not in this particular case there are factors warranting the making of the application.

28 Mr Justice Cohen made orders, to which I have already referred, in the Family Court on 20 March 1991. In his affidavit in support, which was the basis for the husband’s application, the deceased swore on 1 March 1991 that his income for year ending 30 June 1990 was $52,261. He also swore that his expenses for the same period totalled $73,551. He swore that the gross value of his assets amounted to $951,237. This was made up, inter alia, of the property at Drummoyne estimated at $900,000 and his apartment in Manila estimated at $41,250. His only liabilities disclosed were his legal costs estimated at $25,000.

29 The property settlement provided for the payment of $50,000 by 19 April 1991 and a further $450,000 by 19 July 1991. The second plaintiff says that she was paid the balance of the funds in July 1991 although this is not established by production of documents. Company searches show that at the date of the property settlement the Drummoyne property was unencumbered. There is in evidence a mortgage given by the deceased to National Australia Bank on 9 August 1991 and the stamping indications on the mortgage (which is a copy obtained from the Land Titles Office) shows that it was stamped for $200,000. There is in evidence a number of statements made by the deceased at the time of settlement in which he indicated that he had to borrow to pay out the second plaintiff.

30 By the time of his death on 2 April 2003 the deceased had discharged the mortgage held by National Australia Bank and had accumulated approximately $240,000 in savings. This was notwithstanding that he had retired in 1997. Apparently the deceased obtained lucrative employment in the Far East following the property settlement in 1991 and there are some indications on the evidence that he worked away from Australia prior to the property settlement.

31 It is perfectly plain, based upon the deceased's financial statement, that he only had very limited cash resources and it would be necessary for him to borrow substantially more than $200,000 in order to meet his obligations under the property settlement. The first question is whether I should infer that the deceased only needed to borrow $200,000 to meet his obligations under the property settlement. If that fact is inferred the next fact to be considered is whether I should infer that at the time of the property settlement he had access to other funds which were not disclosed in his affidavit placed before the Family Court.

32 The copy of the mortgage in evidence is a copy of the permanent copy held by the Registrar General. Any increase in the loan after lodgement would lead to an obligation on the bank to update the stamping of the bank’s duplicate copy of the loan document. Such stamping would need to be done within six months of any additional advance.

33 It was suggested that the failure to produce the duplicate copy from the bank’s records did not allow one to infer that the advance was only for $200,000. However, the evidence that there was only one final payment and that the purchase of the new house needed funds of at least $293,000 indicates that there was no occasion for there to be separate advances by the bank.

34 I bear in mind the gravity of the matters alleged, namely, a fraudulent withholding of facts by the deceased but, nevertheless, I am satisfied that the deceased only borrowed $200,000 to pay out his wife.

35 Given the deceased’s disclosed income, the short time between the property settlement and the time of final payment, I think it is reasonable to infer that the deceased had access to other funds which he did not disclose to the Family Court.

36 In these circumstances there was a serious non-disclosure of a material matter which would have enabled the wife to have set aside the settlement in the lifetime of the deceased had she been aware of the relevant facts.

37 I am satisfied on the traditional basis that there are factors warranting the making of the application.

38 In these circumstances I do not need to consider the alternative basis suggested by Fitzgerald AJA, namely, that there are reasonable prospects of success. This requires a consideration of the situation in life of the plaintiffs and others having any claim on the bounty of the deceased. However it is also a useful starting point for considering the first jurisdictional question, which has to be considered in respect of the claims made by the plaintiffs. In applications under the Family Provision Act the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

"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 Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

The situation in life of Fiona Dolman

39 Fiona is years 33 years of age, single and lives with her mother. She has no dependants. She pays board of $125 a week. She has a car worth between $3000 and $3500, various items of furniture and personal effects valued at approximately $10,000 and savings of $13,704. She has accrued superannuation of approximately $18,000 and is presently employed as an assistant visual merchandising manager by Myers on an annual gross salary of $50,000. Her weekly expenses total $860.

40 Fiona is in reasonable health although she says she has suffered from depression since the death of her father. Her interaction with her father is subject to some further medical evidence that I will deal with later. She attended a chiropractor from time to time and finds that this is of assistance. She clearly is able to engage in full-time work and there is no reason to think that she will not do so in the future.

The situation in life of Pamella Dolman

41 Pamella is 71 years of age, single and has no dependants. She lives with her daughter at the property at Rodd Point. That property which she owns outright is valued at $870,000. She has furniture and other household items of a value of between $10,000 and $20,000. She has a 1990 car valued at $5,450 and has cash in the bank of $3,500. Her only liabilities are a credit card debt in the sum of $600.

42 Pamella is in good health and continues to work part time. She receives a pension of $235 per week and also receives money by working in the school canteen for which he receives $100 dollars per week. She also receives board from Fiona of $125 per week. The present weekly expenses amount to $463.50 per week. Obviously she is just making ends meet and would like to be able to cease her part-time work.

The situation in life of Gregory William Dolman

43 Gregory is 41 years of age. He lives with his longstanding de facto partner in Queensland in rented accommodation. He intends to marry in the near future. He owns a car worth $1500 and jointly owns with his partner land at Cooroy having a value of between $60,000 and $75,000. They have some other personal assets of small value. They both operate a business known as “Crystal Clear Crystals” which operates in Eumundi near the town of Noosa. The business currently runs a loss.

44 So far Gregory has received a distribution of $735,000 some of which he has put into the business but the majority of which he still has in a bank account.

45 Gregory is in good health and previously had carried on business as a personal trainer.

Relationship with the deceased

46 Gregory moved out of home in 1984 and for many of the years in the latter part of the deceased’s life he lived in Queensland. It is plain that he had very little contact with the deceased although there was no falling out between the deceased and Gregory. From time to time the deceased complained that because of the distance that separated them their contact was quite limited. However, there was nothing in the relationship which would lead me to direct that the burden of any legacy to be awarded should be borne by Gregory’s interest which he takes under the will by reason of this somewhat limited contact.

The situation in life of the other residuary beneficiaries

47 No admissible evidence was placed before the court as to the financial circumstances of the other residuary beneficiaries. In these circumstances the court can assume that they do not wish their financial circumstances to be taken into account when the court decides the applications. The details of their relationship with the deceased are somewhat scant. Apart from their relationship in the broad sense with the deceased their evidence was more directed to defeating the plaintiffs’ claims.

The claim made by Fiona Dolman the first plaintiff

48 I have already set out the details of the first plaintiff's financial situation. As is no doubt apparent the critical matter in relation to the first plaintiff's claim concerns the relationship between herself and the deceased.

49 Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person “it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person.”

50 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows:

…..

The Act draws a distinction between the eligible persons referred to in par(a) and par(b) on the one hand and par(c) and par(d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased’s person spoken of in s.3 of the 1916 Act and s.7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased.

In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478–479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin J both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that “many cases suggest that an applicant must show a moral claim …”, he went on to say that this was a gloss on the Act and was unwarranted and inconsistent with the language of the legislative scheme.

It seems to me that the introduction into s.7 of the present Act of the word “ought” in replacement of the words from s.3 of the 1916 Act “as the Court thinks fit” shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word “ought” seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par(c) and par(d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par(a) and par(b) although it is unnecessary to decide that in this case.”

51 Meagher JA (NSWLR at 570) agreed with Priestley JA.

52 Meagher JA had previously expressed a view in Hughes v Hughes (Court of Appeal unreported 6 June 1989) (an adult daughter case) that the duty arose to make provision as established in that case as follows:-

“Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right , but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be.” (Emphases added).

53 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

54 In Benney v Jones, Mahoney JA at 560 said:

“Where the applicant is a member of the deceased’s family, as referred to in the earlier paragraphs of s.6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear.”

55 In Gorton v Parks (1989) 17 NSWLR 1 at 7 ff, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, His Honour noted:

“It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation:”

56 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales Case) (1962) 107 CLR 9. Scales’ case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18):

“The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. … In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator’s death.”

57 At 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales Case. He said:

“Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; … Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962.”

58 Bryson J in any event distinguished Scales case (p 11) on the basis that on the facts before him the plaintiffs,

“In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. ..”

59 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton’s case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse as follows:

“In Singer’s case , a widow who had been married less than one year to a 68 year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at page 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that “we doubt this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to “moral duty” or “moral obligation” may well be understood as amounting to a gloss on the statutory language”. They then say “the determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”

60 Young J also observed:

“In Fraser’s case, Kirby P at p29 said that “I do not consider that it would be safe for this court, or other courts in this state, to disregard the obita dicta in Singer v Berghouse concerning “moral duty”. However, His Honour’s decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law “either by the observations of the majority in Singer or by the High Court’s reference, in the footnote, to what Murphy J said earlier (p27).”

“Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words “moral claim” in decisions under this Act.

“Sheller JA again did not consider that the High Court’s suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p42 “the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant’s case but not alone sufficient to justify an order in the claimant’s favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order.”

61 The concerns expressed about any change in the law as a result of Singer v Berghouse were recently put to rest by the High Court in Vigolo v Bostin [2005] HCA 11 at 25, 74-75 and 121.

62 In Walker v Walker, (p 27) Young J noted:

“It is often impossible to work out whether the degree of separation between parent and child at the date of the parent’s death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.

The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.

63 In this case it is the totality of the relationship between the first plaintiff, Fiona Dollman, and the deceased which is critical. It is necessary when considering the relationship to determine if possible whether the separation between Fiona and her father was solely the fault of either or whether as Young J noted it came about by factors too strong for either to control or somewhere in between.

64 Fiona Dolman was born on 7 December 1971. Her parents separated in 1984 shortly after Gregory had left home. The deceased moved to the upstairs area of the property while his wife, Pamella Dolman, and Fiona occupied the ground floor. At that stage Fiona was 12 years of age. At that stage she was a young person and it is quite natural that she would stay with her mother and indeed appropriate. Fiona remembers very little of her interaction with her father prior to the separation although she remembers him being distant at times and perhaps having high expectations of her. There is no suggestion of any ill treatment or improper conduct in their relationship prior to separation in 1984. After separation in 1984 there was one incident when Fiona recalls her father coming down stairs and being angry at being locked out of the ground floor. There is no evidence of any conduct by the deceased which in any way affected Fiona. He paid for her dental work during this period.

65 In 1991 Fiona’s parents were divorced and Fiona and her mother went to live at Rodd Point. It is plain that after they moved to Rodd Point the deceased used to send cards to Fiona and he kept contact in that way. In 1993 or 1994 when Fiona was 22 or 23 years of age and she had been living with her mother for some two or three years at Rodd Point that she took the initiative to cut off any further overtures to her by the deceased. She did so by writing a letter to her father which is not in evidence but which the first plaintiff concedes was a brutal and honest letter. In cross examination she described the letter in these terms:

Q. And you told Dr Apler a year ago that although your
father didn't ring you, he did send you birthday and
Christmas cards to which you did not reply?
A. And I've acknowledged that.

Q. And you said to Dr Apler in 1993 or 1994 you wrote
your father an angry letter. Do you remember telling Dr
Apler that?
A. Yes, I do.

Q. And you told Dr Apler you want to get your feelings
off your chest?
A. Yes.

Q. And that was the purpose of you writing the final letter to your father?
A. Yes.

Q. And you said to Dr Apler that you recall being brutal
in your honesty about the way that you felt of your
father?
A. Yes.

Q. Telling your father that he was never there for you?
A. Correct.

Q. And after that he stopped sending you cards didn't he?
A. I believe so, yes.

Q. Because he respected the wish you expressed in that
letter to terminate the relationship?
A. I believe so, yes.

Q. You then went on to tell Dr Apler that there was no
further contact between you and your father until he was
admitted to hospital in March of 2003?
A. Yes.

Q. In fact I think it was 31 March 2003 was the first
time you saw your father in that intervening period?
A. Yes.

66 The next incident occurred in 1996 or 1997 when the plaintiff drove past her father’s house and made eye contact with him and kept driving on. When cross examined she suggested that she was fearful of her father and that she never knew what he was going to say. She mentioned that she thought she was never good enough for dad. At this stage she was 26 years of age and was working and living her life as an adult.

67 Some two weeks before the death of the deceased. Fiona, who was 32 years of age, was told by a former neighbour that her father had cancer and did not have long to live. She did nothing about it. In cross examination she was asked about a visit to the deceased a day or so before he died in these terms:

Q. And you've given an account in your very first
affidavit of some conversations you had with him in the
last days of his life?
A. Yes.

Q. And you recall that one of the statements that you
attribute to yourself during that first visit, this is
reading from paragraph 37 of your first affidavit, is that
you said to him, "I can not regret my decision not to see
you." You remember saying that to him?
A. Yes, I do.

Q. And you maintained your rejection of him right up
until the moment of his death?
A. I couldn't change it. I regret it now and I have to
live with it, but at that point because things were moving
so fast, you know. I find out my father's sick on the
Friday and I lose him on the Wednesday. How am I supposed
to put five days into 12 years or 31 years of my life? I
do remember saying that and at that time I was telling
myself I do regret it because I couldn't change it and now
I have to live with it.

Q. In your affidavit you're say that although he was
disappointed in your decision he understood; do you recall
saying that?
A. Can you say it again.

68 Plainly, Fiona, maintained her rejection of her father up until his death. The plaintiff’s motives for bringing her proceedings were expressed by her in cross examination.

Q. Do you recall you also said to Dr Ravi that after your
father passed away you started to think about the terms of
his will?
A. No.

Q. And you told Dr Ravi that you had said to Greg that
"twelve people had been left something and I'm his
daughter, I should get something"; remember saying that to
Dr Ravi?
A. I remember the initial phone call from my brother that
I had the conversation with him after mum had told me that
I was excluded. And at first, I don't know if it was
shock or disbelief or just because what we were going
through was surreal. I had the conversation with Greg I
think somewhere along the lines of, yes, you know, I
should get something.

Q. Do you recall telling Dr Ravi it was only after you
were told twelve people outside the family were receiving
half the estate that you decided to contest the will?
A. I decided to contest the will for my own reasons which
my father wasn't there for me emotionally, and he should
have been. And if I can sort of justify to myself that
I'm worth something, that's why I'm doing this.

Q. You say you certainly haven't read the opinions
expressed by Dr Ravi?
A. No.

Q. Were you aware that Dr Ravi, other than by reading
this report, concluded that you had no insight into the
fact that you rejected your father?
A. I rejected by father because he rejected me. Can I
get a tissue?

MASTER: You may step down and get a tissue.

(Witness returned to the witness box.)

69 It is apparent that Fiona’s rejection of her father once she was an adult was a deliberate act on her part and maintained by her up until the date of death. What has to be considered is whether there is any reason for this which might be attributed to fault on the deceased’s part or, alternatively, something which was too difficult for Fiona to overcome and thus be understandable.

70 Dr Eli Revai, a psychiatrist, gave detailed evidence following a long interview with Fiona. His conclusion was as follows:

Ms Fiona Dolman is a thirty-three year old single woman (the only daughter of the late William Lance Dolman), who had no contact with her father from the ages of nineteen to thirty-two, due to her own choice. On one brief occasion, eight to nine years ago, Ms Dolman drove past her father and made brief eye contact, but nothing came of that contact. A few weeks prior to her father's death, Ms Dolman was informed that her father was suffering from cancer and had looked extremely ill. A few days prior to her father's death, Greg, Ms Dolman's brother, travelled from Queensland and shortly thereafter, Ms Dolman was advised that her father was near death. It was only then that Ms Dolman decided to visit her father, which makes one wonder whether this was because on this occasion (due to her father's weakened condition), she felt that she would not be likely to be the recipient of what she had felt was his hostile and rejecting attitude in the past. Ms Dolman allegedly only uttered the words “I love you" to her father, after his death, so one can only assume that her hostility towards him, had remained during his dying days. Ms Dolman claims to be grief-stricken, but I find this hard to accept. There is a past history of Ms Dolman becoming depressed and resorting to substance abuse with alcohol after a break-up with her relationship with Ian, her former boyfriend. Apparently Ms Dolman began binge drinking after her father's death, but fortunately was able to cease this abuse and either concurrently, or since then, has become addicted to chocolate.

71 Dr Revai was not cross examined on his evidence.

72 Evidence was also given on Fiona’s behalf by Dr Alex Apler, a forensic psychiatrist. In his evidence Dr Apler expressed an opinion and made the following comments.

Ms Fiona Dolman is a 32 year old woman who lives with her mother. She works as a visual merchandising manager full-time. She has been in a relationship with her boyfriend for the past two years.

Ms Dolman's father passed away on 2 April 2003. Following his death Ms Dolman developed depressive symptoms with tearfulness, poor sleep and periods of moodiness and irritability. She has been able to continue working full-time despite these symptoms, although at present she is looking for a less demanding job. Her depressive symptoms persist almost a year since her father's death. Ms Dolman's depressive symptoms constitute a normal grief reaction. I do not consider them abnormally severe or prolonged. She is at risk of developing an abnormal grief reaction given the unresolved difficulties in her relationship with her father, although there is no evidence of an abnormal grief reaction at this stage.

Ms Dolman has been alienated from her father for most, if not all of her life. She perceived her father to be distant, critical and unavailable. She was afraid of his anger and putdowns. She perceived him as unpredictable and was fearful of his reaction. She avoided contact with him, even when living in the same house. She felt more confident when away from her father.

In contrast, Ms Dolman described her mother as a helpful, kind and generous woman. She felt close to her mother and could turn to her for support and advice. This relationship seems to have overcompensated for Ms Dolman's lack of intimacy with her father. She may have become over-reliant on her mother for support and continues living with her. It is likely that Ms Dolman and her mother drew support from each other as a way of coping with the adversity in their relationships with Mr Dolman.

It was natural for Ms Dolman to remain with her mother when her parents separated in 1984. It was natural, given that she was a girl, was alienated from her father, and had a strong bond with her mother. This pattern of family alliances became entrenched following parental divorce in 1991. In this context, it is understandable that Ms Dolman avoided communications with her father following parental separation and divorce. She felt fearful and angry towards him. She also felt that communication with her father may somehow betray her mother with whom she had a close relationship.

It appears that the criticism that Ms Dolman endured in her relationship with her father left her feeling unconfident and full of self-doubt in relation to her work and relationships. She worried about being abandoned and found it difficult to trust men. She became depressed following termination of her relationship with Ian. She is at risk of having further episodes of depression if presented with threatened or actual abandonment. She is particularly at risk of depression should her mother's health deteriorate.

73 Dr Apler went on to deal with specific questions which he was asked to answer. In answer to question 7, “What effect did the separation by the parents have on Fiona’s relationship with her father?”, his answer was that she avoided contact with her father following parental separation.

74 Question 8 that he was asked was in these terms:

“If you accept the contents of Fiona’s affidavit in relation to her father, what effect did the father’s personality have on Fiona and would it explain her reluctance to see her father in later years?”

75 Dr Apler’s answer was as follows:

“Mr Dolman’s tendency to be demanding, critical and unpredictable resulted in Ms Dolman being fearful, avoidant and unconfident. It explains her reluctance to see her father in later years.”

76 Dr Apler was cross examined on the grief reaction which the plaintiff suffered following her father’s death. He described her reaction as a normal grieving reaction and he was of the opinion that she did not have any psychiatric illness. In cross examination Dr Apler made it plain that at the time the parties separated when Fiona was 12 years of age Fiona’s decision was quite natural having regard to the close relationship she had enjoyed with her mother prior to that time and having felt alienated from her father. In regard to Fiona’s decision in 1993 or 1994 to cut off communication with her father Dr Apler was asked whether that decision would have been a conscious decision by an adult of an age when they were able to rationalise what had happened in their childhood. Dr Apler’s reply was, “It was certainly a decision of an adult but I can’t say it was independent of what happened in Fiona’s life when she was growing up. That line of questioning was not taken any further.

77 There was some cross examination of Dr Apler as to whether Fiona had any insight into her rejection of her father. The cross examination was in these terms:

“Q. Dr Revai was the psychiatrist who saw Fiona at the
request of the estate in order to respond to the report
you provided. Have you read his report?
A. Yes.

Q. Under his Conclusions, one conclusion he addressed
is that Fiona has no anxiety owing to the fact that she
rejected her father. Is that an opinion you agree with?
A. I haven’t got a copy of the report in front of me.

Q. Just look at this (shown)?
A. Yes.

Q. Do you agree or disagree with that proposition?
A. I am not sure what that means, having no insight. I
presume he is saying she does not understand that she is
rejecting her father. Can I accept that interpretation of
what she is saying?

Q. Yes?

A. I thought what he is saying here is that the blame or
the responsibility for the rejection in that relationship
lies with both parties, the father and the daughter. I
think that is unfair. When it comes to children, it is
unfair to place the responsibility for mending a
relationship on the child. I think that would certainly
lie more with the parent. In the next sentence he refers
to children as well as their parents. Children and
parents can resolve their day to day differences. Well
yes, sometimes they can. But I think in my experience the
relationship between a parent and a child has to be viewed
differently to a relationship such as a marital
relationship, where the responsibility might be placed
differently.

78 We are here dealing with a plaintiff who perhaps lacked some insight but who is not suffering from any psychiatric illness. Although there are statements by the plaintiff about being fearful of her father she gives no evidence of any conduct of the deceased which might have led to those feeling. Given her closeness with her mother at separation it is quite natural that she remained with her mother. To my mind it does not explain what happened once she was an adult. At the age of 22 years she made a very conscious decision to reject her father’s overtures, which had been taking place for a number of years, to maintain contact. After that rejection her father did not cut off contact but wrote to her and to use his expression he “left the door open to her” to come back and have contact with him.

79 Fiona’s mother, the second plaintiff, gave evidence before me and she, of course, was the person who would most likely be able to give evidence of any conduct of the deceased which might have led to Fiona’s upset and fears. She gave no evidence of any such circumstance prior to the separation and indeed there is no evidence before me which deals with the fault of either party in respect of that separation. In paragraphs 17 and 18 of Pamella Dolman’s affidavit of 23 March 2004 she gave evidence of occasions when the deceased would come downstairs between 1984 and 1991 to look through the windows. She gave evidence that Fiona commented that if her father were home she would not make a noise and would sneak around the house. When asked for an explanation she said Fiona said, “Because I did not want him talking to me. Whatever I do is not good enough. I don’t want him to tell me I’m not up to scratch”. No doubt this is evidence of the high expectations the deceased had of his daughter but it does not really explain the decisions which his daughter made later on in her adult life.

80 Notwithstanding reminders of her father when she saw him in 1996 or 1997 she did not establish contact. I do not accept that the reason was that she was fearful of her father because there is no evidence of anything which one often hears in these cases to lead to such a fear. It seems to me that for her own reasons the plaintiff decided to throw her lot in with her mother and maintain loyalty to her while having nothing to do with her father in his later years. That rejection continued up until the death of the deceased. It was only when the plaintiff realised she had been left out of his will that she became upset and for that reason she has brought these proceedings.

81 In my view, when considering the totality of the relationship between the first plaintiff, Fiona Dolman, and the deceased, the plaintiff’s conduct was such that it is not appropriate for her to receive provision. In other words, I do not think the first plaintiff passes the jurisdiction hurdle of being left without adequate and proper provision for her maintenance, education and advancement in life.

Consideration of the second plaintiff, Pamella Dolman’s, claim

82 It is necessary to see how the second plaintiff says that she has been left without proper and adequate and proper provision for her maintenance, education and advancement in life.

83 There are a number of ways in which the second plaintiff says she has been left without support. She needs to do some work on her house she estimated at $36,000. She wishes to have a new car which would be in the order of $20,000. Certainly that amount for a new car is appropriate and it is likely to be the only one she will have having regard to her savings of slightly over $3,000 at the present time. The claim in respect of costs for repair of the house were analysed by a builder called by the defendant who suggested that $9,250 was appropriate for immediate repairs and that a further $14,000 should be spent over the next five years. His analysis rejected additions to bedroom furniture and reduced a number of items such as air conditioning. In my view, bearing in mind this will be the only opportunity for the second plaintiff to do some repairs given her capital position and her small income it is appropriate that there be a reasonable assessment of her needs. To my mind an appropriate allowance would be $34,000.

84 The second plaintiff does casual work which she would like to stop and for this work she receives approximately $100 per week. Her pension entitlement is $235 per week and Fiona contributed $125 per week. In order to have a reasonable lifestyle she would like to be able to spend approximately $711 per week. This is a shortfall of $321 per week. Her life expectancy is 15.6 years and a sum to allow for this shortfall would be $182,135. This would of course have some effect on her pension. Assuming that she receives no pension and that Fiona stays at home and still contributes $125 per week the sum is $332,496. Assuming Fiona leaves home the amount is $403,421. Given Fiona’s age and relationship there is a real possibility that she will leave home. The plaintiff should have some funds for emergencies which could occur.

85 As I have earlier indicated the financial situation of the residuary beneficiaries, who take one half of the estate, are not in evidence before me. The son of the deceased receives a very substantial provision. Although he suggested in his affidavits many extravagant ventures on which he would like to spend his money it is perfectly plain that he will receive an adequate entitlement.

86 Bearing in mind all these matters and the large size of the estate, I think an appropriate order would be for the second plaintiff, Pamella Dolman, to receive a legacy of $500,000.

87 In the circumstances I think the second plaintiff’s legacy should be charged against the estate generally and not in any particular proportion.

88 The orders that I make are as follows:

89 I will hear argument as to the costs of the first plaintiff, Fiona Dolman’s claim.

**********

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Citations

Dolman v Palmer [2005] NSWSC 327

Most Recent Citation

Clemens v Byrnes [2007] NSWSC 421

Cases Citing This Decision

3

Palmer v Dolman [2005] NSWCA 361

Fricano v Lagana [2009] NSWSC 840

Clemens v Byrnes [2007] NSWSC 421

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Statutory Material Cited

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Lodin v Lodin [2017] NSWCA 327

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CITATION:	Dolman & Anor v Palmer [2005] NSWSC 327
HEARING DATE(S):	29/03/05, 30/03/05 and 31/03/05
JUDGMENT DATE :	31 May 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:	Paragraph 88

CATCHWORDS:	Family Provision. Application by an ex wife and daughter of deceased. Property settlement with ex wife affected by deceased's failure to fully disclose his assets. Existence of factors warranting the making of the application under s9(1) of the Family Provision Act 1982. - Daughter deliberately cuts off all contact with deceased for last 12 years of deceased's life. Her claim dismissed.
PARTIES:	Fiona Dolman & Pamella Dolman v Michael John Palmer (Estate of late William Lance Dolman)
FILE NUMBER(S):	SC 6383 of 2003
COUNSEL:	Mr D.E. Grieve QC with Ms D. Coulton for plaintiffs Mr C.J. Bevan for defendant
SOLICITORS:	Vizzone Ruggero & Associates for plaintiffs Turner Freeman for defendant