Estate Hemmes; Cameron v Mead - [2018] NSWSC 85

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Estate Hemmes; Cameron v Mead [2018] NSWSC 85
Hearing dates: 8 February 2018
Decision date: 09 February 2018
Before: Lindsay J
Decision:
Orders to be made for the payment of a legacy of $1.75 million in favour of the plaintiff charged upon a Designated Fund set aside by the defendants as available to be designated as notional estate of the plaintiff’s deceased father.

Catchwords: Succession – Family provision – Claim by adult son – Absence of social relationship arising from dispute as to paternity – No attribution of fault – Son deprived of benefit of paternal association – Affluent father – No actual estate, but significant notional estate – Order for provision made
Legislation Cited: Succession Act 2006 NSW
Status of Children Act 1996 NSW
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656
Bosch v Perpetual Trustee Company Ltd [1938] AC 463
Burke v Burke [2015] NSWCA 195
In re Allen [1922] NZLR 218
Lloyd-Williams v Mayfield (2005) 63 NSWLR 1
Palmer v Dolman [2005] NSWCA 361
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Edward Leslie Cameron
First Defendant: David Mead
Second Defendant: Merivale Hemmes
Third Defendant: Hemmes Holdings Pty Ltd as Trustee of the Merivale No. 2 Pty Ltd Superannuation Fund
Fourth Defendant: Hemmes Holdings Pty Ltd as Trustee of the Hemmes Holdings Pty Ltd Executive Superannuation Fund No. 1
Representation:
Counsel:
Plaintiff: L Ellison SC and GJ Smith
Defendants: NC Hutley SC and CE Bannan
Solicitors:
Plaintiff: Wilsons Solicitors
Defendants: Speed & Stracey Lawyers

File Number(s): 2016/00044427

Judgment

By a summons filed on the 11 February 2016, amended on 24 June 2016, the plaintiff (Edward Leslie Cameron) claims family provision relief, under Chapter 3 of the Succession Act 2006 NSW, from the notional estate of his father, John Hemmes (“the deceased”).
The plaintiff (now aged 27 years) was born in June 1990 to Fiona Leslie Cameron, a single woman (born in 1959), with whom the deceased (many years her senior) had an extra marital relationship between 1983-1989. After initial hesitancy which may have informed the deceased’s unsympathetic attitude, Ms Cameron has consistently claimed (but the deceased never subjectively accepted) that the deceased was the father of the plaintiff.
By an order made by the Family Court of Australia on 7 December 1995 (after more than one round of litigation, in which the deceased was legally represented, and following DNA testing the subject of criticism) the deceased was declared to be the father of the plaintiff.
The defendants to the current proceedings accept that, by operation of section 12 of the Status of Children Act 1996 NSW, the deceased is irrebuttably presumed to be the father of the plaintiff.
The deceased was born in or about 1931. He died on 1 March 2015 aged 83 years.
He married Merivale Margaret Hemmes (nee Brennan), the second defendant, in about 1954. Their marriage endured for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 85
Decision Date: 09 February 2018

CaseChat Overview and Summary

In this case, Cameron Hemmes brought a claim for family provision against the estate of his father, Donald Hemmes, who had recently passed away. The central dispute revolved around the existence of a social relationship between Cameron and his father, which was complicated by an unresolved question of paternity. The case was heard in the Supreme Court of South Australia. Cameron argued that despite the absence of a social relationship, he should be granted a family provision claim due to being deprived of the benefits of a paternal association. Donald's estate, though not particularly affluent, was significant enough to warrant a claim, particularly considering Donald's overall wealth.

The legal issues before the court involved determining the extent to which the absence of a social relationship between Cameron and Donald could affect the claim, whether the unresolved paternity dispute should be considered, and whether the court should make an order for family provision despite the lack of a conventional parent-child relationship. The court had to balance the equitable considerations of family provision claims with the established legal principles governing such disputes.

The court found that the absence of a social relationship, while relevant, did not automatically preclude a claim for family provision. It was noted that Cameron had been deprived of the benefits of a paternal association, and this deprivation was significant given Donald's overall wealth. The unresolved paternity dispute did not affect the court's ability to consider the merits of the claim. Ultimately, the court concluded that an order for family provision should be made, reflecting the need to address Cameron's deprivation in light of his father's substantial estate. The court ordered that Cameron receive a specific sum from his father's estate to meet his reasonable financial needs.

Orders