Flanagan v Fisher

[2021] NSWSC 598

Supreme Court

New South Wales

Medium Neutral Citation:

Flanagan v Fisher [2021] NSWSC 598

Hearing dates:

20 May 2021

Date of orders:

27 May 2021

Decision date:

27 May 2021

Jurisdiction:

Equity - Family Provision List

Before:

Kunc J

Decision:

Provision ordered

Catchwords:

SUCCESSION – Family Provision – Claim by adult child – Deceased and former wife were legal guardians of plaintiff – No significant contact between plaintiff and deceased for 26 years – Whole estate left to RSPCA

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Evidence Act 1995 (NSW)

Family Law Act 1975 (Cth)

Infants Custody and Settlement Act 1899 (NSW)

Probate and Administration Act 1898 (NSW)

Succession Act 2006 (NSW)

Cases Cited:

Camernik v Reholc [2012] NSWSC 1537

Foley v Ellis [2008] NSWCA 288

Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47

Marshall & Ors v Redford [2001] NSWSC 763

Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11

Category:

Principal judgment

Parties:

Andrew Peter McGuinness Flanagan (Plaintiff)
Matthew John Fisher (Defendant)

Representation:

Counsel:

L Clarke (Plaintiff)
Dr S Chapple (Defendant)

Solicitors:

Hudson Law (Plaintiff)
Thurlow Fisher Lawyers (Defendant)

File Number(s):

2020/255646

Publication restriction:

No

Judgment

Summary

1. These proceedings are an application by the plaintiff, Andrew Flanagan, for provision out of the estate of the late Ronald Michael Flanagan under s 59 of the Succession Act 2006 (NSW) (the Act). Without intending any discourtesy, and with the exception of the defendant and an independent witness, I shall refer to the plaintiff and others in this judgment by their given names. The defendant is the solicitor executor of Ronald’s estate (the Estate).

2. Andrew is a 43 year old Aboriginal man. Ronald was not indigenous. Neither is Ronald’s former wife, Wilma, with whom Andrew continues to live.

3. When Andrew was 5 months old, Wilma and Ronald were given legal custody of Andrew by order of the Children’s Court under the Infants Custody and Settlement Act 1899 (NSW). When Andrew was nearly 13 years old, Ronald and Wilma separated. They were divorced two years later.

4. For the ensuing 28 years after Ronald and Wilma separated up to Ronald’s death in 2019, contact between Andrew and Ronald diminished from minimal to non-existent. By his will dated 22 May 2017 (the Will), Ronald left the Estate to the RSPCA. Ronald made clear in the Will that he was deliberately excluding Andrew and that he did not wish Andrew to receive anything from the Estate.

5. The distributable value of the Estate is approximately $570,000. To the credit of the parties, by the conclusion of the hearing the only issue for the Court’s determination was what amount of provision the Court should order in favour of Andrew. Dr S Chapple of Counsel, who appeared for the defendant, accepted that $80,000 ought to be allowed to Andrew, representing the upper end of Andrew’s estimate of how much it would cost to undertake necessary repairs and modifications to the house in which he lives with Wilma and which they own as tenants in common in equal shares. Ms L Clarke of Counsel, who appeared for Andrew, submitted that provision of half the Estate ($285,000) should be ordered.

6. At the conclusion of the hearing, I indicated to the parties that the Court would make an order for provision out of the Estate in favour of Andrew for $160,000. This was on the basis that it could be applied either to eliminate Andrew’s mortgage of approximately $163,000, or in some lesser sum to enable the proposed repairs and modifications to be carried out with the balance being applied to make a significant reduction in Andrew’s mortgage. After hearing argument as to costs, the Court invited the parties to bring in short minutes. They have done so and those orders will be made concurrently with the electronic publication of these reasons.

Preliminary matters

7. With respect, Dr Chapple quite properly made the following concessions on behalf of the defendant:

1. Andrew had been dependent on, and a member of, Ronald’s household so that Andrew was an eligible person for the purposes of s 59(1)(a) pursuant to s 57(1)(e) of the Act.

2. Given that for all intents and purposes — other than perhaps as a matter of strict legal definition — Ronald was Andrew’s father, there were factors warranting Andrew’s application for the purposes of s 59(1)(b) of the Act.

3. The Will did not make adequate provision for Andrew’s proper maintenance, education or advancement in life.

8. Against the background of those concessions, Dr Chapple did not contest that $80,000 should be provided to Andrew from the Estate. This meant that the sole issue in dispute between the parties was the extent to which the Court should award an amount greater than $80,000, taking into account Ms Clarke’s submission that an award of half the Estate ($285,000) should be made.

9. Notwithstanding this, Ms Clarke was at some pains in her submissions to persuade the Court that Andrew satisfied the requirement in s 57(1)(c) of the Act of being “a child of the deceased person”. She explained that Andrew’s circumstances were such that he had “fallen between the cracks”. Having been disconnected from his Aboriginal heritage, Andrew now had found that what might be termed “white man’s law” did not recognise him as the child of the person whom he has regarded for his entire life as his father. This was distressing to Andrew and it was very important, Ms Clarke submitted, for Andrew that he be recognised as Ronald’s child.

10. The Court has every sympathy for Andrew on this issue. As I develop further below, the Court has no doubt that Andrew is an admirable individual who has made a success of his life in very difficult circumstances. There is much to be said for Ms Clarke’s submission that what happened to Andrew would not be allowed today, given what is now understood about the deleterious effect of severing the connection between Indigenous Australians and their family and country.

11. Recognising all of that, and with the greatest respect to Andrew, it nevertheless remains the task of the Court to determine only those matters that are presented to it that are genuinely in dispute. For the following reasons, the Court declines to embark upon the construction exercise which Ms Clarke sought to make out:

1. Andrew’s status as an eligible person under the Act was not in dispute.

2. The preceding sub-paragraph was reason enough for the Court to conclude that these proceedings are not a suitable vehicle to determine whether, having regard to the proven facts in relation to Andrew’s custodial arrangements, he was Ronald’s “child” as that term is to be understood in the Act.

3. The Court would not have the benefit of a contradictor.

4. The issue was far from straightforward and would take up the time of the parties and the Court in both argument and then preparing a judgment. As such, it would be contrary to the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) for the, relevantly to this case, quick determination of the proceedings.

5. As Dr Chapple, with respect correctly, pointed out, the basis on which a person is an eligible person under the Act does not, in and of itself, affect the strength of that person’s claim: see, for example, Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 at [75] (per Young CJ in Eq, Palmer J agreeing). Once eligibility has been established, the question then becmes a fact-sensitive exercise analysing the nature of the particular relationship between a plaintiff and the deceased. In this case, there was no dispute that Andrew unequivocally regarded Ronald as his father and Dr Chapple accepted that the Court should proceed to exercise its discretion on exactly the same basis as though Andrew was the biological child of Ronald. That is what the Court did.

12. It is also convenient at this introductory stage to deal with the question of two other eligible persons:

1. Ronald and Wilma had intended to adopt Andrew, but that did not happen because Andrew’s birth mother withdrew her consent. However, Ronald and Wilma did adopt another child, David. David took no part in the proceedings because he was unable to be located. On the basis of the evidence adduced by the defendant, the Court finds that all reasonable steps had been taken to attempt to locate David and notify him of these proceedings.

2. The Court finds that on or about 14 October 2020, the solicitors for Ms Lily Micallef were served with a copy of the Summons and a notice of eligible persons. Ms Micallef is listed on Ronald’s death certificate as his partner. She has played no part in the proceedings.

13. Finally, the RSPCA filed no evidence and took no part in the proceedings.

14. Based upon the concessions set out in [7] and the approach to which I have referred in [11(5)], there was no dispute between the parties that the factual issues which required the Court’s attention were:

1. What was referred to for convenience as the lengthy “estrangement” between Andrew and Ronald (recognising that “estrangement” is a morally and emotionally loaded word which was not necessarily apposite for what had occurred in this case). This engages with the matters to which the Court may have regard under ss 60(2)(a), (b), (j) and (m) of the Act.

2. The nature and extent of Andrew’s need, having regard to his health and economic circumstances. This engages with the matters to which the Court may have regard under ss 60(2)(c), (d), (f) and (g) of the Act.

3. The RSPCA’s claim on the Estate. This engages with the matters to which the Court may have regard under ss 60(2)(c) and (j) of the Act.

15. I will set out the relevant evidence, contentions and conclusions on each of these issues in turn. To the extent there were any factual disputes, they were minor and ultimately immaterial to the Court’s decision.

“Estrangement” — evidence

16. There was very little evidence about this issue. Andrew’s affidavit evidence was:

“32   I consider myself to be a son of the deceased.

33   As a child I had a great relationship with the deceased. We were very close. Both the deceased and my mother had wanted children. Before I was adopted, they had signed up for IVF and had also put their names down for adoption. I felt that I was a very much wanted child.

34   After the separation I had to make the effort to keep in contact with the deceased.

35   The deceased was required to pay child support. My mother told me: “He paid for the first two years but once we were divorced, he stopped making payments.”

36   For the first few years after the breakdown of the marriage the deceased would recognise my birthday by sending birthday cards. After that he didn’t recognise my birthday.

37   Occasionally we would go out for lunch and the deceased would pay. This wasn’t a frequent occurrence.

38   The deceased only wanted to take one of us out at a time. He said we were "too hard to handle."

39   The deceased took me to a football match in Balmain.

40   As I got older, I made the contact with the deceased. I visited him in his unit at Bankstown. I would always call him or try to visit him on his birthday, Father’s Day and Christmas.

41   Occasionally I would bump into the deceased when I was working.

42   In the later years the deceased was hard to contact. I would leave messages on his phone, but he wouldn’t return my calls. I kept the same phone number for 20 years so that the deceased and my birth mother could always contact me.

43   In 2011 I contacted the deceased. I had cancer at the time. The deceased was also unwell, and he was upset with me because I wasn’t taking care of him. I explained to him that I wasn’t well and as much I (sic) would like to take care of him I couldn’t. He wasn’t interested in my illness.

44   The deceased was made redundant at the age of 45 years, which occurred shortly after the separation. He didn’t work again. I don’t know whether this influenced his behaviour after the divorce.

45   In 2019 I attempted to make contact with the deceased again. It had been a difficult year as my mother had been unwell. I had taken time off work to care for her. It caused me to think about life. I decided to try to make contact with the deceased again. I made several calls to him but did not receive a response. I did an internet search of his address and saw that his home was about to be auctioned. I contacted my solicitor to see if there was any way to find out if he was unwell. I thought he may be selling his home so he could move to a retirement home or aged care facility. That was when I learned that he had died.”

17. On 31 January 1991, Wilma executed the requisite instrument on behalf of Andrew changing his name to include the surname Flanagan.

18. In 1993, when Ronald applied for the dissolution of his marriage to Wilma, he listed both Andrew and David in the application form as “children of the marriage”, in the case of Andrew presumably by virtue of s 55A(3) of the Family Law Act 1975 (Cth), which at that time provided that:

“For the purposes of this section, a child (including an ex-nuptial child of either the husband or the wife, a child adopted by either of them or a child who is not a child of either of them) is a child of the marriage if the child was treated by the husband and wife as a child of their family at the relevant time.”

19. The same application specifies that the date of separation was 19 March 1991 in these circumstances:

“Unhappy differences existed between the parties and in late February or early March while the parties were cohabitating the Husband received a letter from the Wife’s Solicitor requesting that he vacate the matrimonial home. The Husband asked the Wife in words to the effect: “What’s all this about?” and the Wife said words to the effect: “You should know the marriage is over. I don’t love you anymore”. The Husband then made arrangements to vacate the matrimonial home and did so on the 19^th March 1991 and thereafter considered the marriage was at an end. Since then the parties have not shared confidentiality, cohabitation or companionship.”

20. Under the section of the application headed “Arrangements for the Children”, the following was included:

“EDUCATION: Andrew is in Year 9 at Sefton High School. He has very good progress at school (sic) and often obtains top marks in his class. …

ACCESS: The Wife always permits the Husband access to the children and there is no problems (sic) in arranging access. However the relationship of the Husband to the two boys has deteriorated in the last 12 months and accordingly the Husband has had very little access with the two boys in the last 12 months.”

21. Ronald paid Wilma child support in respect of Andrew and David during the two year period of separation, but ceased to pay child support after the divorce was finalised.

22. The defendant called evidence from Mr Franklin Davies. Mr Davies was not cross-examined. His evidence was that he became a close friend of Ronald’s from about 2000 and ultimately came to fulfil some caring responsibilities for Ronald. He was listed as Ronald’s next of kin at Bankstown-Lidcombe Hospital after 2017.

23. On the question of Ronald’s relationship with Andrew and David, Mr Davies’ evidence was:

“The Deceased rarely spoke about his adopted children however when he did he would say to me words to the effect of: “They have never tried to contact me” or “they have never been in touch with me” and “I’m going to cut them out of my Will”.

24. Clause 7 of the Will provided:

“7.   I HAVE SPECFICALLY MADE NO PROVISION for my step-children ANDREW PETER FLANAGAN and DAVID BENJAMIN FLANAGAN. My solicitor has advised me as to the Succession Act. I instruct my Trustee to vigorously oppose any proceedings issued by either or both of my step-children pursuant to the Succession Act or any other legislation. The reason for this is that, as at the time of making this Will [22 May 2017], neither of my step-sons has had any contact with me for many years and they have specifically avoided attempts at contact. It is my specific intention that no provision be made for them and that any attempt by them to contest this Will be vigorously defended.”

25. In the course of cross-examination by Dr Chapple, Andrew’s attention was drawn to the lack of detail in the description in Andrew’s affidavit of his relationship with Ronald (reproduced in [16] above). Andrew accepted that such conversations as he had with Ronald between 1993 and 2011 were, at best, nothing more than an exchange of pleasantries. Into the early 2000s, Andrew said that he would call Ronald from time to time, but that he often had to leave a message because the call would ring out. He accepted that it did not occur to him to go around to Ronald’s house to check on him or to call the police to undertake a welfare check. At the most he might tell Wilma that he had tried to call Ronald.

26. The phone calls were generally limited to Ronald’s birthday, Father’s Day and Christmas. Ronald would answer the phone maybe once or twice out of those three times a year. In relation to these conversations with Ronald, such as they were, Andrew’s evidence in cross-examination was that Ronald:

“… showed really no interest in me in those conversations. He’d talk about himself. And that’s how it was. He would talk about himself. I knew that he had lupus. I had known that for some time. But he would never ask about how I was. He’d generally just ask how mum is. That’s all he was interested in.”

27. Andrew said that in the 2011 phone call mentioned in [16], Ronald had “berated” him.

28. The cross-examination also included:

“Q. The fact is it seems to me that you really weren't much part of his life and he wasn't much part of your life from the 1990s through the 2000s through to 2011. That's correct, isn't it?

A. I think that there is some truth to that, yes.

Q. And aside from contacting him in an informal way on special occasions you played no role in his life and he played no role in your life?

A. Correct.

Q. And when you did contact him on those four occasions the exchanges that you had didn't delve into anything more than what I might call a surface level conversation?

A. Yes.”

“Estrangement” — submissions

29. Dr Chapple submitted that even taking Andrew’s evidence at its highest, the very fact that it was generalised, vague and devoid of any real detail demonstrated that to the extent there was a relationship between Andrew and Ronald, it was perfunctory: one in which formalities were observed and nothing more. There was no evidence that Andrew had in fact tried to have a meaningful relationship with Ronald, no suggestion that he had made a request for such a relationship or that he had ever questioned Ronald as to why Ronald was apparently not interested in him.

30. In short, Dr Chapple submitted that Andrew was indifferent to having a meaningful relationship with Ronald. Furthermore, without suggesting that Andrew could not be believed, the generality of Andrew’s evidence was such that the Court should not give it much weight. It was uncorroborated and no third party evidence had been called by Andrew. In contrast, the Court did have what was in the Will and the evidence of Mr Davies. If Andrew’s evidence was the best he could put on about his relationship with Ronald, then the Court should conclude that maintaining any kind of meaningful relationship with Ronald was not that important to Andrew.

31. Ms Clarke, for Andrew, reminded the Court of the difficulty and unreliability, after many years, of attempting to attribute blame or explanations for the behaviour of parties in cases of alleged estrangement: see, for example, Foley v Ellis [2008] NSWCA 288 per Sackille AJA at [102]. To the extent that an explanation was required, the evidence suggested that, for whatever reason, Ronald had increasingly rejected and not been interested in Andrew. That provided a more than adequate explanation of why Andrew was less than enthusiastic about maintaining contact with Ronald. In any event, even if the Court were to find that Andrew bore responsibility for the poor state of his relationship with Ronald, that did not disqualify Andrew from relief under the Act: see, for example, Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [110] per Ipp JA, with whom Tobias and Basten JJA agreed.

Andrew’s circumstances and needs — evidence

32. Andrew is 43 years old. He does not have a partner and he has no dependants. There was no dispute that he has been very prudent in relation to his financial affairs. He has a half interest as tenant in common in the property in which he lives with Wilma (the Property). He and Wilma share all expenses equally. The Property is said to be worth in the order of $550,000 and he has a mortgage of approximately $163,000. As at April 2021, he had savings (offsetting his mortgage account) of $62,000. His current superannuation balance was approximately $212,000. Andrew meets all his expenses. Ms Clarke did not disagree with Dr Chapple’s calculation that, based on the evidence, Andrew had saved $28,000 over the past two years and was making repayments on his mortgage in excess of what was required, reducing the principal by $17,500 per year so that, at that rate, he would have paid off his home loan within the next 10 years.

33. Andrew is currently employed as a train guard with Sydney Trains earning $97,000 per annum before tax. With breaks totalling approximately three years (including one year in the Commonwealth Public Service), Andrew has worked for Sydney Trains since 1997. In that time he has also earned a Diploma in Human Resources.

34. Based on things he has been told by his employers, Andrew says that his current position may be made redundant by 2025, when the function of train guards may be completely replaced by cameras. Again taking a prudent approach, Andrew has been looking for redeployment within Sydney Trains and for other public service positions. In addition, Andrew has commenced this year the LPAB course with a view to obtaining legal qualifications as a possible alternative career.

35. Andrew has a number of health problems, past and present:

1. Testicular cancer in 2011 (now in remission);

2. Coronorary artery vasospasm (prinzmetal angina);

3. Diabetes Mellitus Type 2;

4. Sleep apnoea;

5. Hypertension; and

6. Gastric reflux and ongoing stomach issues.

36. Andrew is under the care of three specialists. His employment with Sydney Trains requires him to pass a medical test every 12 months. His evidence was that each year he “fails” that test and is required to obtain a satisfactory report from his medical specialists to enable his employment to continue. By his own evidence, Andrew takes his health very seriously, including compliance with various treatment regimes. There was no suggestion that he had had any difficulty over the years in obtaining the requisite report from his specialists to enable his employment to continue. There was no medical or other evidence to suggest that there was any imminent or other risk of Andrew’s health declining in the foreseeable future by reason of any of his diagnosed conditions.

Andrew’s circumstances and needs — submissions

37. Ms Clarke submitted that Andrew’s asset position should be considered without his superannuation, as that was not an asset that was presently available to him. So viewed, he only had the value of his interest in the Property in which he lived with Wilma (approximately $110,000) and his savings (approximately $60,000). While Andrew was living within his means, both his future employment and health prospects were uncertain.

38. Dr Chapple submitted that it was clear from the evidence that Andrew had no great or pressing financial needs. While there may be some concern about his future employment, he had done other work (including within Sydney Trains) and had obtained his human resources qualification. To his credit, he was contemplating the possible need to retrain by commencing the LPAB course as well as looking for other possible employment.

39. He owned his share of the Property and had no difficulty making mortgage repayments and saving money. Insofar as he had health issues, the only evidence before the Court was that they were well managed. There was no evidence of any adverse prognosis.

The claim of the RSPCA — evidence

40. No evidence was filed by or on behalf of the RSPCA. Pursuant to s 144 of the Evidence Act 1995 (NSW) I proceeded on the basis that it was common knowledge that the RSPCA is a substantial and long standing charity dedicated to the welfare of animals.

41. The only evidence concerning any connection between Ronald and the RSPCA was provided in Mr Davies’ affidavit:

“20.   … I retired about 10 years earlier than expected as I had to care for my elderly and sick father. Since then I dedicated my life to volunteer work. I primarily volunteer at [the] RSPCA.

21.   I often spoke to Ronald about my volunteer work at the RSPCA and with MS. I would often talk to Ronald about the animals that would come in damaged and injured and Ronald would sympathise with them.

22.   Ronald became increasingly interested in my volunteer work with the RSPCA. In about early 2017 Ronald said to me words to the effect of: “I want to start doing volunteer work with you at the RSPCA”. Unfortunately not long after Ronald started losing his balance and became sick and so he couldn’t do volunteer work with animals.

23.   On one occasion in 2017, I recall Ronald told me words to the effect of: “I have decided to give everything to the RSPCA in my Will because animals don’t have anyone to look after them”.”

The claim of the RSPCA — submissions

42. Ms Clarke submitted that the only inference that could be drawn was that there was no relationship between Ronald and the RSPCA other than through his friend and former carer, Mr Davies. She drew to attention what was said by Gleeson CJ in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [13]:

“… It would now be regarded as self-evident that a court would be readier to disturb a testamentary provision in favour of a beneficiary, such as a charity, with whom a testator had no connection than a provision in favour of dependant relatives. Why is this so? The answer, again, lies in concepts of moral obligation.”

43. Ms Clarke also referred to the decision of Master Macready in Marshall & Ors v Redford [2001] NSWSC 763 in which a net estate of $255,453 was left to the RSPCA with no provision being made for the deceased’s two adult children. The learned Master said:

“22   … There is absolutely no evidence of any contact between the deceased and the RSPCA. The situation is thus quite different from where one has a charity which has benefited the deceased during his lifetime, or with whom the deceased had taken an interest during his lifetime.

23   In these circumstances it seems to me that there is little competition against the claims for the plaintiffs in these proceedings.”

44. Ms Clarke made it clear that it was not Andrew’s case that Ronald’s gift to the RSPCA should be cast aside. She submitted that the Estate was of a sufficient size both to recognise Ronald’s desire to benefit the RSPCA and to meet Andrew’s needs for the future.

45. Dr Chapple submitted that while there may not have been a direct connection between Ronald and the RSPCA, there was an emotional connection through Mr Davies. For whatever reason, it appeared that Ronald died without connection to family or friends other than Mr Davies. Mr Davies was his closest friend for nearly 20 years. Mr Davies had been Ronald’s carer, was listed as his next of kin, socialised regularly with him, had taken him to hospital, shopping and various appointments, and had inspired in Ronald a desire to be involved as a volunteer for the RSPCA, a desire that was not able to be fulfilled because of the decline in Ronald’s health. The evidence was that Ronald wanted to benefit the RSPCA because animals had no one to look after them. The Court should conclude that the gift was a way of recognising Mr Davies and what Mr Davies had done for Ronald, by benefiting an organisation that was so close to Mr Davies’ heart.

Provision generally — submissions

46. Ms Clarke relied on:

1. The “estrangement”, such as it was, between Ronald and Andrew was not, to the extent it could be identified, the fault of Andrew. Rather, Andrew could not be criticised for failing to pursue a more than formal relationship with Ronald given Ronald’s lack of interest and his unreasonable criticism of Andrew in their conversation of 2011. On no view did the lack of contact between the two men undermine Ronald’s moral obligation to make provision for Andrew, being the moral obligation of a parent to a child.

2. The uncertainty both as to Andrew’s health and employment prospects. Even if Andrew were to complete the LPAB course, there was no certainty that as a nearly 50 year old individual starting a legal career he would be able to find employment.

3. There was no close or persuasive connection between Ronald and the RSPCA. The RSPCA had not put on any evidence of what it might do with Ronald’s benefaction or of any adverse effect upon its plans if the amount that it was to receive were to be reduced by the making of provision for Andrew. In the circumstances, the RSPCA’s claim was weak when compared to Andrew’s moral claim.

4. In any event, the Estate was of a sufficient size both to provide for Andrew’s future needs and to respect Ronald’s desire to give a substantial benefit to the RSPCA.

47. Taking all of those matters into account, Ms Clarke submitted that provision representing half of the distributable Estate ($285,000) ought be made for Andrew. This would enable him to pay off his mortgage ($160,000), undertake the repairs and renovations to the Property (approximately $80,000) and provide a buffer against contingencies (approximately $45,000).

48. Dr Chapple submitted that Andrew was in steady employment, had accumulated some modest assets, had built a life entirely independent of Ronald and had not demonstrated any significant financial or other need in light of his financial or health circumstances. He submitted that Andrew’s stated needs fell into three categories:

1. A need to undertake renovations to make the Property more accessible for Wilma.

2. A need to reduce his mortgage so that he could purchase Wilma’s interest in the Property in the event that she has to move into aged care. Andrew had provided no reason why, in circumstances where he had surplus income, such a purchase could not be funded by increasing the size of his mortgage.

3. A sum for contingencies in the amount of $50,000. It was submitted that Andrew already had accumulated savings of $60,000 which could be applied to fund any unforeseen contingencies.

49. In assessing appropriate provision for Andrew, it was contended that the Court had to take into account that, for whatever reason, there had been no real relationship between Andrew and Ronald between 1993 and 2019.

50. Dr Chapple submitted that proper provision for Andrew would be at the upper end of what Andrew said he required to perform work on the Property ($80,000). No further need had been demonstrated and the lack of any real relationship with Ronald meant that there was no moral obligation for a larger sum. If Andrew received $80,000, he would have the option to perform the renovations or, together with his savings, largely discharge his mortgage. Alternatively, he could keep the fund in his offset account as and when he needed it and still have his loan registered on the title of the Property. On any view Andrew’s repayments would then be negligible, freeing up further money which, given the evidence of his prudent saving habits, meant he would be able to save to have a fund available for whichever needs might arise, whether it be the need to renovate or the need to buy out his mother’s interest in the Property.

Consideration

51. It is convenient to begin with the Court’s impression of Andrew. He presented as a very intelligent, articulate and honest individual who had worked hard in life to overcome very difficult circumstances. He has maintained good employment and has demonstrated prudence and responsibility in the management of his personal and financial affairs. He takes maintaining his health and dealing with his health issues very seriously. He is devoted to Wilma as his mother and undoubtedly regarded Ronald as the only father he had ever known. He was an honest witness who answered questions in a clear and straightforward manner and made concessions where appropriate. The Court readily accepts Ms Clarke’s submission that Andrew did not wish to be seen as a victim, a mendicant or an unconscientious claimant on the Estate.

52. All of the foregoing is to Andrew’s immense credit. However, as I put to Ms Clarke in response to some of her submissions during the course of argument, the Court’s jurisdiction under the Act is to be applied not to reward achievement but to consider a plaintiff’s need and the deceased’s moral obligation to the plaintiff in the context of, at least and not limited to, the matters set out in s 60(2) of the Act.

53. I will first consider the three specific issues presented by the parties.

54. First, in relation to the “estrangement”, I accept Ms Clarke’s submission that insofar as it is necessary to attribute a cause or blame for the lack of a relationship between Ronald and Andrew, that rests with Ronald due to the indifference which Ronald showed to someone he clearly accepted as being his son. This appears to have been from the time of Ronald and Wilma’s separation (see [20]). Dr Chapple accepted, with respect correctly, that nothing could really be made of the fact that in the Will Ronald referred to his “step-sons” other than perhaps to conclude that Ronald, by the date of the Will, had come to see both Andrew and David as Wilma’s children rather than his. The Court accepts that there was no conduct on the part of Andrew that might be said to reduce the moral claim which he otherwise had on the Estate. Nevertheless, that claim must be assessed, as Dr Chapple submitted, in the light of the stark reality that there had been no meaningful relationship and minimal to no contact between Ronald and Andrew for 26 years (including all of Andrew’s adult life).

55. Second, in relation to Andrew’s circumstances, the Court accepts Dr Chapple’s submission that Andrew has not demonstrated any particular financial or other need that would warrant provision to the extent of half the distributable value of the Estate. Andrew is in good employment, is paying his bills, is saving money and paying down his mortgage. On the basis of the evidence before the Court, it is not possible to conclude any more than that the following are possibilities (greater than mere speculation but no more than that): that Andrew may lose his current employment in 2025, that there may be some decline in his health that shortens his working life, and, if he does lose his current employment, he may have difficulty finding other employment within Sydney Trains or the public service or, if he completes the LPAB course, finding employment as a solicitor.

56. Finally, in relation to the RSPCA’s claim on the Estate, the Court accepts Dr Chapple’s submission that Mr Davies’ evidence supports the inference, which the Court draws, that there was an identifiable and sensible reason why Ronald chose to benefit the RSPCA, notwithstanding the lack of a direct connection between him and the RSPCA during his lifetime. The Court accepts the explanation advanced by Dr Chapple set out in [45] above. This was not a case (and Ms Clarke did not contend that it was) of a charity or charities being chosen at random or in a spirit of spite or malice towards excluded potential beneficiaries. Nevertheless, the Court is also satisfied that this is not a case where there was a strong emotional attachment to the RSPCA forged over Ronald’s lifetime.

57. Considering the parties’ submissions more generally, I have borne in mind the principles in relation to claims by adult children. These were conveniently set out in a passage which I respectfully adopt by Hallen J in Camernik v Reholc [2012] NSWSC 1537 at [159]:

“In relation to a claim by an adult child, the following principles are useful to remember:

(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b) It is impossible to describe in terms of universal application, the obligation, responsibility, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.

(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia.

(d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86].

(e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

(f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17].

(g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.”

58. Without suggesting that the matters recorded by Hallen J are determinative or reading them as a statutory formula, it is nevertheless instructive to consider the circumstances of the present case against criteria that frequently support the making of an order for provision in relation to an adult child. Accepting that Andrew does not have to show some special need or special claim, he nevertheless has reserves, is managing his health problems without indication of any likely decline, is relatively financially secure, has a fund for contingencies and is able to earn an income which enables him to pay his debts with only the possibility that some future events may impact upon his capacity to earn that income. He is not a claimant who has fallen on hard times.

58. Nevertheless, the Court is satisfied that Andrew does have a moral claim to provision from the Estate by way of what might be termed some general assistance in life that an adult child might expect from a wise and just parent testator where the size of the estate permits such assistance to be given. This conclusion depends upon balancing, in particular, that Ronald and Andrew were in a father-son relationship; that, nevertheless, there had been no real contact between them for some 26 years; Andrew’s relatively good financial circumstances and prudent economic habits; the absence of evidence of a substantial or imminent threat to Andrew’s health or employment; the possibility that at some point Andrew may have to buy out Wilma’s interest in the Property; a genuine but not decisive claim to Ronald’s bounty by the RSPCA for the reason identified in [45]; the need to respect Ronald’s testamentary desire to benefit the RSPCA (again, a relevant but not determinative consideration); and the capacity of the Estate both to benefit the RSPCA and provide a degree of real assistance to Andrew.

59. Balancing all of the matters I have referred to in the preceding paragraph, the Court reached the conclusion that provision should be made for Andrew in the sum of $160,000. This accepted, as properly made, Dr Chapple’s concession that Andrew should be put in a position to perform the renovations to the Property if he wishes to do so. This was clearly of benefit to Andrew because, apart from improving the value of the Property, it would enable Andrew and Wilma to stay in the Property for longer and thereby delay, if not eliminate, the need for Andrew ever to have to purchase his mother’s share to enable to her to go into other accommodation.

60. Furthermore, building on the type of analysis put by Dr Chapple which I have recorded in [50], a further $80,000 would significantly assist Andrew. A total fund of $160,000 would enable him to perform the renovations and significantly reduce his mortgage. Alternatively, together with the $60,000 he already has, the fund could be applied to more than offset his mortgage, fund the renovations other than with his own capital and enable him to continue to save for any future contingencies.

61. In my respectful view, and intending no criticism of Andrew whatsoever, the absence of a relationship over such a long period between Ronald and Andrew means that Andrew’s moral claim does not extend beyond assistance in the amount which I have identified. Provision in that amount still leaves a substantial provision for the RSPCA in accordance with Ronald’s testamentary wishes.

Costs

63. When I informed the parties at the end of the hearing that the Court would make an order for provision for Andrew in the amount of $160,000, I foreshadowed costs orders to the effect that Andrew would have his costs from the Estate on the ordinary basis and the defendant executor would have his costs on the indemnity basis.

64. Dr Chapple then tendered a Calderbank offer made to Andrew on 15 December 2020 and open for 28 days (the Offer) which included:

“1. Pursuant to s 59 of the Succession Act 2006 (NSW), that the Plaintiff receive, by way of a provision, a lump sum of $170,000.00 out of the Estate of the Deceased. …

3.   That the provision made for the Plaintiff, together with the Defendant’s costs of the proceedings, be borne by the Defendant, RSPCA Australia, the sole residuary beneficiary named in the Deceased’s Will. 

4.   That the Plaintiff's costs of the proceedings, as agreed or assessed, be paid, or retained, as the case may be, out of the Estate of the Deceased.

5.   That the Summons, filed on 2 September 2020, otherwise be dismissed.”

65. On the basis of the Offer, Dr Chapple submitted that, in the exercise of the Court’s discretion, the appropriate costs orders in relation to Andrew were:

1. Andrew’s costs up to and including 15 January 2021 be paid out of the Estate on the ordinary basis;

2. Andrew pay the defendant’s costs thereafter on the ordinary basis.

66. Dr Chapple informed me that, on his instructions, the defendant’s costs for the period after 15 January 2021 on the ordinary basis were approximately $30,000.

67. There was no dispute between the parties as to the principles applicable to the consideration of a Calderbank offer. The persuasive burden of satisfying the Court to exercise its discretion in his favour lay on the defendant. The two critical questions were, first, whether the Offer was a genuine offer of compromise and, second, whether the rejection of the Offer could be shown to be unreasonable. There was no dispute between the parties that the Offer was a genuine offer of compromise. Their argument focused on whether Andrew’s failure to accept the Offer was unreasonable.

68. Ms Clarke submitted there were four reasons why Andrew’s non-acceptance of the Offer was not unreasonable:

1. Ronald’s death certificate listed the informant as his partner, Ms Lily Micallef. It was common ground that Ms Micallef had threatened family provision proceedings of her own and that this was known to the parties. However, at the time of the Offer Andrew’s side did not know, as was in fact the case (see [12(2)]), that Ms Micallef had been served with a copy of Andrew’s summons and a notice of eligible persons in October 2020. In those circumstances, Andrew and those advising him did not know at the time of the Offer whether or not Ms Micallef would be making a competing claim.

2. Andrew was to be awarded an amount only $10,000 less than what he would have received if he had accepted the Offer.

3. To require Andrew to bear some portion of the costs of the proceedings would be to deprive him of the benefit of the provision which the Court had determined to make in his favour.

4. It was not apparent from the terms of the Offer whether the RSPCA had given its consent to the provision for Andrew being borne from its share of the Estate.

69. Dr Chapple responded:

1. Even if it had been the case that the position of Ms Micallef had not been known and the consent of the RSPCA had not been obtained, these matters went to the risk of the defendant in settling the proceedings on the terms of the Offer. The defendant would be bound to perform the terms of the Offer had it been accepted, irrespective of those matters. In any event, at least as far as the RSPCA was concerned, it would have been a simple matter for Andrew’s solicitors to have inquired whether or not the RSPCA had consented to the Offer being made.

2. There was a significant public policy interest in encouraging the settlement of litigation by giving effect to Calderbank offers. While the effect on the provision to be ordered by the Court was a discretionary consideration, this was not a case where that would outweigh giving effect to the Offer.

70. I accepted Dr Chapple’s submissions and was satisfied that Andrew’s failure to accept the Offer was unreasonable. Had he accepted the Offer, he would have done better than has been the actual outcome. At the time of the Offer, the parties’ principal affidavits had been filed and the evidentiary lines of the litigation had been drawn. Andrew had the benefit of legal advice. The $10,000 difference between the Offer and the amount of provision which the Court was to order was not so small as to reduce the effect of the Offer on the exercise of the Court’s discretion.

71. I took into account that having to pay approximately $30,000 of the defendant’s costs and, presumably, his own legal fees for the relevant period would reduce the benefit that Andrew would obtain from the provision to be ordered by the Court. However, given Andrew’s financial resources and saving and earning capacity as I have set out in [32] to [34] above, I did not consider the effect of the costs order would be so great as to outweigh the undoubted public policy interest in encouraging settlement by giving effect to Calderbank offers. As has been said by several judges of this Division, the ordinary principles in relation to costs generally apply in family provision matters.

Conclusion

72. In accordance with the Court’s request, the parties provided agreed short minutes to give effect to the Court’s decision, which will now be the orders of the Court.

73. The Court:

1. Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that the plaintiff receive, by way of provision, out of the estate of Ronald Michael Flanagan (the deceased), a lump sum of $160,000.

2. Orders that no interest is to be paid on the lump sum if it is paid within 28 days of the date of the making of these orders; and if not so paid, interest is to be paid on any unpaid part thereof, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from the 29th day from the date of the making of these orders until the date of payment in full.

3. Orders that the burden of the provision for the plaintiff is to be borne by the residue of the estate.

4. Orders that the costs of the plaintiff, calculated on the ordinary basis as agreed or assessed, up to and including 15 January 2021 be paid out of the estate of the deceased, and thereafter the plaintiff pay the costs of the defendant, of the proceedings, calculated on the ordinary basis as agreed or assessed.

5. Orders that, to the extent that the defendant’s costs are not otherwise satisfied pursuant to the preceding sub-paragraph, the defendant’s costs of the proceedings, calculated on the indemnity basis, are to be paid out of the estate of the deceased.

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Decision last updated: 27 May 2021