Green v Trevor James Holtom and Theresa Gaye Spence (As Joint Executors of the Estate of the Late Douglas Hector Green (Dec))
[2006] WASC 1
GREEN -v- TREVOR JAMES HOLTOM and THERESA GAYE SPENCE (As Joint Executors of the Estate of the Late DOUGLAS HECTOR GREEN (Dec)) & ANOR [2006] WASC 1
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 1 | |
| Case No: | CIV:1265/2004 | 29-30 NOVEMBER 2005 | |
| Coram: | JOHNSON J | 9/01/06 | |
| 43 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim allowed | ||
| B | |||
| PDF Version |
| Parties: | JOHN DOUGLAS GREEN TREVOR JAMES HOLTOM and THERESA GAYE SPENCE (As Joint Executors of the Estate of the Late DOUGLAS HECTOR GREEN (Dec)) TREVOR JAMES HOLTOM |
Catchwords: | Adequate provision Adult claimant Disentitling conduct |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972 (WA) |
Case References: | Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 Dun v Dun (1957) 99 CLR 325 Goodman v Windeyer (1980) 144 CLR 490 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors & Agency Co of Australasia Limited (1979) 143 CLR 134 Kleinig v Neal & Anor (No 2) [1981] 2 NSWLR 532 McColl v McComish & Anor, unreported; SCt of WA (Master Adams); Library No 950299; 16 June 1995 McCosker v McCosker (1957) 97 CLR 566 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Re Allen (Deceased), Allen v Manchester [1922] NZLR 218 Re Clissold [1970] 2 NSWR 619 Re Mercer [1977] 1 NZLR 469 Re Sinnott [1948] VLR 279 Singer v Berghouse (No 2) (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11 Wentworth v Wentworth; unreported; SCt of NSW; Library No 3748/89; 14 June 1991 Wilson v Wilson; unreported; FCt SCt of WA; Library No 930705; 17 December 1993 Allardice v Allardice (1910) 29 NZLR 959 Anderson v Teboneras & Anor [1990] VR 527 Annason v Phillips, unreported; SCt of NSW (Young J); 4 March 1988 Drioli v Rover [2005] SASC 395 Ellis v Leader (1951) 82 CLR 645 Roberts v Roberts (1992) 9 WAR 549 Walker v Walker, unreported; SCt of NSW (Young J); 17 May 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
TREVOR JAMES HOLTOM and THERESA GAYE SPENCE (As Joint Executors of the Estate of the Late DOUGLAS HECTOR GREEN (Dec))
First Defendants
TREVOR JAMES HOLTOM
Second Defendant
Catchwords:
Adequate provision - Adult claimant - Disentitling conduct
Legislation:
Inheritance (Family and Dependants Provision) Act 1972 (WA)
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Result:
Plaintiff's claim allowed
Category: B
Representation:
Counsel:
Plaintiff : Mr J C Curthoys
First Defendants : Mr G D Burgess
Second Defendant : Mr G D Burgess
Solicitors:
Plaintiff : Cahill Billington
First Defendants : Hammond Worthington
Second Defendant : Hammond Worthington
Case(s) referred to in judgment(s):
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494
Dun v Dun (1957) 99 CLR 325
Goodman v Windeyer (1980) 144 CLR 490
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors & Agency Co of Australasia Limited (1979) 143 CLR 134
Kleinig v Neal & Anor (No 2) [1981] 2 NSWLR 532
McColl v McComish & Anor, unreported; SCt of WA (Master Adams); Library No 950299; 16 June 1995
McCosker v McCosker (1957) 97 CLR 566
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re Allen (Deceased), Allen v Manchester [1922] NZLR 218
Re Clissold [1970] 2 NSWR 619
Re Mercer [1977] 1 NZLR 469
Re Sinnott [1948] VLR 279
Singer v Berghouse (No 2) (1994) 181 CLR 201
(Page 3)
Vigolo v Bostin [2005] HCA 11
Wentworth v Wentworth; unreported; SCt of NSW; Library No 3748/89; 14 June 1991
Wilson v Wilson; unreported; FCt SCt of WA; Library No 930705; 17 December 1993
Case(s) also cited:
Allardice v Allardice (1910) 29 NZLR 959
Anderson v Teboneras & Anor [1990] VR 527
Annason v Phillips, unreported; SCt of NSW (Young J); 4 March 1988
Drioli v Rover [2005] SASC 395
Ellis v Leader (1951) 82 CLR 645
Roberts v Roberts (1992) 9 WAR 549
Walker v Walker, unreported; SCt of NSW (Young J); 17 May 1996
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1JOHNSON J: The plaintiff, John Douglas Green seeks an order pursuant to s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA) ("the Inheritance Act") for provision to be made for him out of the Estate of his father, Douglas Hector Green ("the deceased"). The plaintiff is the deceased's eldest son. The second defendant, Trevor James Holtom, is the deceased's youngest son. For ease of reference, and without intending any disrespect, I propose to refer to those mentioned in these reasons by first name rather than surname.
2 The deceased died on 31 October 2002. He is survived by his two sons, the only people with a significant claim against his Estate. The deceased left a Will dated 28 July 2002 ("the Will") which appointed Trevor Holtom and Theresa Gaye Spence as joint executors. Under the Will, the deceased left the entirety of his Estate of $191,325.23 to Trevor. Probate was granted on 1 September 2003. However, the Estate was distributed to Trevor Holtom prior to the grant of probate and used by him to purchase a property at 11 McConkey Road, Greenough ("the Greenough property") on 9 June 2003. The Greenough property was purchased in the joint names of Trevor and his wife Ann. On 5 September 2005 the Greenough property was sold for $437,000 and the net proceeds of sale of $382,901.72 used to purchase a property at 97 Warton Road, Thornlie ("the Thornlie property") and to repay a draw down on the home loan for the purchase on 23 August 2005 of a 2005 Mitsubishi Pajero motor vehicle for the sum of $52,785. For reasons to which I will later refer, the Thornlie property was purchased in Ann's name only.
3 The sale of the Greenough property, the purchase of the Thornlie property and the purchase of the Pajero vehicle all took place after Trevor had been advised that John intended to challenge the Will. On 6 August 2003, a solicitor from Cahill Billington, a firm of solicitors acting for John, sent a letter to Trevor formally notifying him as joint executor of the Estate that John would be challenging the Will pursuant to s 6 of the Inheritance Act. The letter further advised that, as joint executor of the Estate, Trevor was under a duty not to make any distribution of the Estate following notice of the intended application. The letter further advised that, as an executor, Trevor might be personally liable for any loss suffered by John if such a distribution were made. Trevor was also asked to advise of the present situation with respect to applying for probate. The other executor was similarly advised.
4 On 25 August 2003 Trevor responded by advising, inter alia, that:
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- "The total value of the Estate on my Fathers death was NIL. The current value is still NIL. In fact expenses have yet to be totalled."
- The letter concluded in the following terms:
"I do make the following statement there is no money in the Estate and legal expense will not be recognized. I also add that I do not believe your client has any claim."
6 Before dealing with the plaintiff's claim for provision out of the Estate, it is necessary to outline the family history and John's circumstances up to the time of his father's death. The deceased married Mamie Elizabeth Green on 10 March 1945. There were only two children of the union, John, born on 9 January 1945 and Trevor, born on 21 January 1948. In 1947, when Mamie was approximately six months pregnant with Trevor, the deceased was imprisoned for three and a half years for stealing. The house which they owned, and in which they had lived, was sold and the proceeds of sale used to make restitution for the deceased's offences. Mamie was left destitute. When Trevor was born Mamie and the children went to live with the deceased's parents in Cottesloe. However, after a time, the deceased's mother told Mamie that she would have to go to work as she could not afford to have her and the children living with her. At this time, Mamie had no money or home of her own. Mamie and the children then moved into a room of her sister's house in Clackline. Eventually she obtained work running a boarding house. It is clear from this account that John was approximately 3 years old when his parents separated. It is also clear that the deceased provided no financial support to his wife and children following the separation. The deceased and Mamie ultimately divorced on 1 April 1952.
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7 Some time after the separation, Mamie met George Holtom and she and her two sons ultimately moved with him onto a farm near Manjimup. They married on 1 April 1964 having lived together for a number of years. Mamie and George had two sons together, Gary and Rick, and a daughter who died in infancy. The family stayed on the farm for some years but later moved into the town of Manjimup where John lived until he was 15 years old. John's recollection of his childhood was one of violence at the hands of George. Trevor admits that on several occasions George "beat the Plaintiff and myself". Mamie's affidavit evidence was that George was never violent, either to her or to her children, a view disputed by John in his responsive evidence. I am satisfied from the evidence of John, about which I will later make some detailed observations, together with the affidavit evidence of Trevor, that George was indeed violent, at least towards John and Trevor. Mamie's contrary position on this point may bear some connection to the attitude of the times to such issues or to guilt over the effect of her choice of partner on her young sons.
8 As children, both John and Trevor used the surname of Holtom. However, according to John, when they were older George told them that if they did not change their surname to Holtom he would not put them in his Will. Trevor elected to change his name but John declined to do so. Ultimately, however, neither John nor Trevor received anything from George Holtom's Estate.
9 John attended school in Manjimup but left in September 1959 at the age of 14. In that same month he commenced work as a mechanic's offsider at a garage in Manjimup. He stayed in that position for about six months. He then commenced employment at Manjimup Drycleaners as an assistant where he would sometimes work long hours. An incident in which John arrived home from work late and was beaten by George, was the catalyst for Mamie to arrange for John to live and work at a farm at Woodanilling owned by his uncle. John never returned to live with his mother and George.
10 The deceased had also remarried. In approximately 1960 he married Violet and together they lived at 45 Second Avenue, Claremont, ("the Claremont house") which was the home that Violet had previously shared with her former husband who had died. Violet had one daughter from her previous marriage, Anne McKendrick, who lived with her mother and step-father at the Claremont house. In April 2001 the marriage between the deceased and Violet became strained culminating in Family Court proceedings.
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11 Until he was approximately 15 years old, John believed that George was his natural father. It is apparent from this evidence that there had been no contact between the deceased and John and Trevor, either during or after his release from prison. Mamie sheds no light on the reason for the deceased's failure to support and keep in contact with his children.
12 In early 1961, John was told by his mother's father that George was not his father and that the deceased was his and Trevor's natural father. John asked his mother for his father's address and was given the address of his father's mother, referred to as Nanna Green, who still lived in the house in Cottesloe at which Mamie and her two children had stayed after the deceased was imprisoned. It was around this time that John took his father's surname of Green. John wrote a letter to his father saying that he would like to meet him and sent it care of Nanna Green's address. Some weeks later, the deceased and Violet drove down to the farm at which John was working and visited him for approximately one hour. During that conversation John described his childhood and spoke of what he hoped to do with his life. At the conclusion of the visit the deceased gave John his address and telephone number. A few weeks later John telephoned the deceased and told him that he wished to visit Perth to buy a car. When John arrived in Perth he was told that he could stay at the Claremont house with his father and Violet. There he met Anne, Violet's daughter. By this time John's father had already visited a number of car yards looking for a suitable vehicle for John and went with him when John bought a Standard 12 sedan. However John paid for the vehicle himself.
13 This account of the renewal of John's relationship with the deceased is not disputed by Trevor who concedes that John's account is consistent with what Trevor was told by his father. These events occurred in 1961 when John was 16 years old.
14 Approximately one month after John had returned with his car to the farm at which he worked, he telephoned the deceased to tell him that he had decided to move to Perth. In response, the deceased invited John to stay at the Claremont house. Two months after his arrival, John was told by his father that he had made arrangements for him to stay with Nanna Green and his grandfather, who operated a boarding house. He told John that he did this because John's presence was interfering with Anne's university studies. For a time, John lived at his grandparents' boarding house. He paid board and helped to maintain the garden. Shortly after moving in he obtained employment with a firm of drycleaners in West Perth as a cleaner and boiler operator. During his
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- stay with his grandparents, John became friendly with Anne and on a number of occasions they went out with a group of friends. During this time John was in contact with his father. On occasions his father would visit him at his grandparents' house and at other times John would see him when John and Anne dropped by the Claremont house.
15 After two or three months of living with his grandparents John was asked to leave. The circumstances surrounding John's departure from Nanna Green's house is the subject of dispute and will be referred to later in these reasons. Having been asked to leave Nanna Green's house, John then asked his father if he could stay with him but his father declined on the basis that John would interfere with Anne's studies. John then moved into a boarding house in West Perth, close to the drycleaners at which he worked. He telephoned his father to tell him of the new address, however, John later lost touch with his father. The father/son relationship was rekindled in 1989 but again fell away in 1992.
16 In early 1965 John met Antoinette Giglia and they married on 22 July 1967. John paid for the wedding reception. For the first five years of their marriage John and Antoinette lived in various rental properties in Perth. On 9 September 1972 they jointly purchased a house at 688 Wanneroo Road, North Balga ("the North Balga property") and continue to reside there. John and Antoinette have two children, Sharon May Gonzales who was born on 7 January 1970 and Wayne John Green who was born on 16 October 1972. Sharon currently runs her own shop and Wayne is a cabinet maker. Both children were independent as at the date of the deceased's death and have maintained that independence.
17 Between September 1960 and September 1971 John worked in a variety of jobs including working as a farm hand, an assistant at a dry-cleaning business, general labouring and truck driving. Between September 1971 and October 1999 he was employed as a mechanic at various service stations and car yards in the Perth metropolitan area. Since June 2000, John, in partnership with Antoinette, has operated a mini-bus hire service ("the business") and drives the bus. Antoinette operates a home-based day care centre for three days each week.
18 I turn now to address the legal principles which apply to a claim of this type. Section 6 of the Inheritance Act relevantly provides that:
"(1) If any person (in this Act called 'the deceased')dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will….is not such as
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- to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
- (2) ….
(3) The Court may attach such conditions to the order as it thinks fit, or may refuse to make an order in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient."
19 Section 7 (1) (c) of the Act permits a child of the deceased to make an application for provision out of the Estate of any deceased.
20 In McColl v McComish & Anor, unreported; SCt of WA (Master Adams); Library No 950299; 16 June 1995, the Master observed that the principles of law applicable to an application under the Inheritance Act are well settled (at 8 - 9). The following list summarises the principles identified in McColl v McComish (supra) together with those referred to in other authorities on applications of this type:
1. The Court is required to undertake a two-stage process in exercising the discretion conferred upon it by the Inheritance Act: Singer v Berghouse (No 2) (1994) 181 CLR 201 (at 208); Vigolo v Bostin [2005] HCA 11 per Gleeson CJ at [5];
2. The first question to be determined is whether the disposition of the Estate by the testator was not such as to make adequate provision for the proper maintenance, support, education or advancement in life of the claimant. This question goes to jurisdiction and is to be determined at the date of the death of the testator: Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 per Dixon CJ (at 508), Bondelmonte v Blanckensee [1989] WAR 305 (at 307), McColl v McComish (supra)(at 9), Vigolo v Bostin (supra) per Gleeson CJ at [4];
3. The jurisdictional stage requires the Court to have regard, amongst other things, to the claimant's financial position, the size and
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- nature of the testator's Estate, the totality of the relationship between the claimant and the testator, and the relationship between the testator and other persons who have legitimate claims upon the Estate: Singer v Berghouse (supra) (at 209 - 210); Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 (at 19) per Dixon CJ.
- 4. Having regard to the character or conduct of the claimant in relation to the testator is also a necessary part of the Court's inquiry as to whether or not the deceased has breached a moral duty to the claimant to make proper and adequate provisions for him or her in all the circumstances: McColl v McComish (supra) (at 10);
5. If the answer to the first question is "yes" then the Court, in exercising its discretion to make such provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the order: Coates v National Trustees Executor & Agency Co Ltd (supra) (at 331), Dun v Dun (1957) 99 CLR 325 (at 331), Goodman v Windeyer (1980) 144 CLR 490 (at 496 – 7);
6. The fact that the Will may be most unjust from a moral point of view is not enough to make the Court alter the testator's disposition of his or her property. It is not for the Court to make a new Will for the deceased: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 (at 478 – 9);
7. The duty of a parent towards his child to make adequate provision on his death, if he can, for the proper maintenance, support, education or advancement in life of the child, continues in spite of disharmony or disappointment, and the statute obliges the court to consider whether it has been performed. The court must take into account the whole scene and make the judgment that it considers that a wise and just parent would have made in the circumstances: In Re Allen (Deceased), Allen v Manchester [1922] NZLR 218 (at 220 – 1), Bosch v Perpetual Trustee Co (supra) (at 479), Kleinig v Neal & Anor (No 2) [1981] 2 NSWLR 532 (at 539);
8. The mere fact of a relationship between the claimant and the testator is generally not of itself sufficient to establish a moral claim: Wilson v Wilson; unreported; FCt SCt of WA; Library No 930705; 17 December 1993 per Seaman J (at 5), disapproving Hawkins v Prestage (1989) 1 WAR 37;
9. A period of estrangement between the deceased and the claimant may affect the claimant's moral claim: Re Clissold [1970] 2
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- NSWR 619 (at 621 – 2) and Re Mercer [1977] 1 NZLR 469 (at 474). However, a state of estrangement, or even hostility, or a clearly established termination of all communication does not necessarily bring to an end any moral duty to make provision for an eligible person: Wentworth v Wentworth; unreported; SCt of NSW; Library No 3748/89; 14 June 1991 per Bryson J (at 125). Where there is an estrangement it should be appraised and its causes considered. Respectful submission to paternal wishes, even if they are reasonable, is not a condition of paternal duty: McColl v McComish (supra) (at 12);
- 10. Conduct which does not disentitle a claimant to further provision may still have some bearing in considering the amount of any further provision: Re Mercer (supra) (at 472);
11. It is not essential for an adult child of a deceased to show some special need or special claim: Kleinig v Neal (supra) (at 541), Bondelmonte v Blanckensee (supra) (at 310).
21 This last point has been the subject of much debate. In Bondelmonte v Blackensee (supra) (at 309) the Court observed, with respect to an application by an adult child, that:
"The learned judge referred to the test in the course of his reasons but also referred with apparent approval to a passage in the judgment of Fullagar J in Re Sinnott [1948] VLR 279 (at 280) to the effect that, in the case of an application by an adult child of deceased, generally speaking, some special need or some special claim must generally be shown to justify the intervention of the court."
- The passage in Re Sinnott [1948] VLR 279 (at 280) was cited with approval in Pontifical Society for the Propagation of the Faith v Scales by Dixon CJ (at 19 – 20): see also Gibbs J in Hughes v National Trustees Executors & Agency Co of Australasia Limited (1979) 143 CLR 134 (at 147). However, as Malcolm CJ observed (at 309), the relevant passage was not followed by Holland J in Kleinig v Neal (supra) (at 538, 542 – 543). Malcolm CJ expressed the view that it was not the intention of Fullagar J to lay down a rule of law or any principle. The passage and its approval by Dixon CJ must be seen in the context of the facts of Re Sinnott and Scales and the fact that the relevant statutes contain no reference to a testator's duty to provide for the advancement in life of an adult child. As Holland J pointed out in relation to the NSW legislation (at 543 - 545), the proper approach to the claim of an adult child was laid down in McCosker v McCosker (1957) 97 CLR 566 per
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- Dixon J (at 571 – 572) and per Williams J (at 575 – 576). As their Honours said in their joint judgment in McCosker (at 571):
"The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. …"
23 In Bondelmonte v Blackensee (supra) (at 310) Malcolm CJ concluded his analysis of the issue in the following terms:
"Thus, if 'special need' is indeed required under the Western Australian statute, as distinct from the Victorian statute, there are no rigid rules and the question depends on all the circumstances."
24 The views expressed by Malcolm CJ in Bondelmonte v Blackensee and by Holland J in Kleinig v Neal lead me to the conclusion that in the circumstances of this case there is no requirement to establish a special need.
25 In considering the effect of estrangement between a testator and a claimant on the testator's duty to an adult child, the difficulty confronting the Court is that it can never know all the circumstances. This is because the testator does not have the opportunity to defend the adequacy of the provision or the absence of any provision: Pontifical Society for the Propagation of the Faith v Scales (supra) per Dixon CJ (at 20). Sir Owen acknowledged the existence of a duty to an adult child, but said:
"It is but an element, however important an element, that is to be taken into account in weighing all the considerations. One consideration here is that the son has made his way in life and though, like most people, he would find more money an advantage, he is not in need. If one really considers the situation of this old man in the closing stages of a long life in which his son has played no part at all, a son to whom his father has meant nothing and who did not even know him, it is hard to
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- see why the testator, in the interest of his son, should be deprived of his complete freedom of testamentary disposition."
26 I have some difficulty with this statement in circumstances where the estrangement between the testator and his adult child results, as in this case, from the testator withdrawing himself from the relationship when the child was young and thereafter making little, if any, effort to re-establish contact. It seems to me that the absence of a relationship in those circumstances is wholly attributable to the conduct of the father and should not constitute a reason for failing to make an award in favour of the adult child. Whilst the Court may not know all the circumstances, it should not be assumed that it is in all cases reasonable to attribute the absence of a relationship to the claimant.
27 It can be seen from the summary of principles that the threshold question to be determined is whether the disposition of the Estate by the testator made adequate provision for the proper maintenance, support, education or advancement in life of the claimant. This jurisdictional question falls to be determined at the date of the death of the deceased. It is also apparent that there are many factors which impact on this threshold question as well as on the final determination. For that reason I propose to deal with the two questions in the appropriate order but after considering all the evidence.
28 As a starting point it is appropriate to consider John's financial and personal circumstances as at 31 October 2002. The primary financial material adduced in evidence was accurate as at 26 February 2004, the date of John's first affidavit filed in the proceeding. The financial material was then updated in subsequent affidavits.
29 The first observation that can be made about John is that he has a strong work ethic and has been in almost constant employment for the whole of his adult life. Having worked on farms and in some dry-cleaning business as a teenager, for the major part of his working life John has been employed as a mechanic. When he commenced work in approximately 1970 he had no qualifications for the job. However he worked as a mechanic for approximately 29 years between 1970 and 2000. In almost every employment he worked for a substantial period of years. His work included management duties and he was given a considerable amount of responsibility. The ability to hold down a job and to be seen as a responsible employee with management capabilities is somewhat inconsistent with the picture of John as an abusive and drunken man.
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30 In terms of assets, John and Antoinette still own the North Balga property. On 16 February 2004 John obtained a market appraisal stating that the property is marketable at between $190,000 and $215,000. The property is unencumbered. Although the property would have had a reduced value as at the date of the deceased's death, I do not believe the reduction is of significance. John owns a 1996 Jeep 4x4 Sports Wagon he purchased in September 1996 for $43,420. He funded the purchase by a trade-in of his Toyota Land Cruiser for the sum of $20,200, a payment of $18,000 by way of a bank loan and the balance in cash. As at 26 February 2004, the Jeep was said to be worth approximately $15,000 and owned by John outright. John also owns a 2001 4.75 metre aluminium boat which was purchased for $19,350. The purchase was funded by way of a trade-in allowance of $12,750 and the balance in cash. In his affidavit of 26 February 2004 John estimated the current value of the boat to be $15,000. Another asset identified by John is a box trailer purchased in 1985 for $400 with an estimated current value of $150.
31 John and Antoinette jointly hold an ANZ bank account with a balance as at 26 February 2004 of $26,408.23. They also jointly operate an ANZ cheque account which, as at 16 January 2004, had a balance of $4110.47.
32 John's business also owns a 13 seater Toyota Hi-ace Commuter Minibus purchased on 11 March 2000 for $17,850. The purchase was funded by a hire purchase agreement between John and Antoinette and GE Auto & Fleet Finance. The hire purchase agreement was fully paid out on 6 March 2004. As at 26 February 2004, the mini-bus was valued at approximately $10,000. The net value of John's assets as at the relevant date was approximately $270,000 exclusive of superannuation.
33 The business has an annual contract to provide a bus service to the WA Retinitis Pigmentosa Foundation. For the financial year ending 30 June 2002 John's taxable income was $16,564. His net income of $14,670 equated to $564 per fortnight. For the financial year ending 30 June 2003 John's total income was $26,270, however, he contributed $19,475 to superannuation leaving a taxable income of $6586. John's after tax income was $6586, which equates to $253 per fortnight.
34 Antoinette has operated a home child care business for over 25 years. For the financial year ending 30 June 2002, Antoinette's taxable income was $18,937. Her net income was $16,604 equating to $638 per fortnight. For the financial year ending 30 June 2003, Antoinette's taxable income
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- was $15,728. Her net income was $14,091 which equates to $542 per fortnight.
35 As at 26 February 2004 John and Antoinette's joint net income per fortnight was $891. Of that sum, they managed to save approximately $266.78 per fortnight. The savings are used to purchase clothing, entertainment and presents.
36 John has a superannuation fund which, as at 26 February 2004, had a balance of approximately $51,000 which he will be able to access in 2010 at the age of 65. Antoinette has no superannuation moneys. It is clear that, as with many self-employed people on relatively low incomes, finding enough money to build an adequate superannuation fund has proved difficult. I make that comment without criticising John's or Antoinette's financial management. It is clear from the financial material that John and Antoinette have been prudent with their money. They have raised two children on a relatively low income and still managed to pay off the family home, save money and acquire other assets. In the financial year ending 30 June 2003, John contributed $19,475 of his taxable income of $26,270 to superannuation. Prior to that date, John's superannuation fund held approximately $31,000, a clearly inadequate sum for a couple only seven years from retirement.
37 With the exception of the balance of the superannuation fund, the assets, liabilities and expenditure of John and his wife as at 26 February 2004 was substantially the same as their assets, liabilities and expenditure as at 31 October, the date relevant to the consideration of whether the deceased made adequate provision for John's proper maintenance, support, education or advancement in life. As at the date of the deceased's death, John and Antoinette's children were not financially dependent on them.
38 In his affidavit of 27 July 2005, John provided additional financial information. Although an up to date valuation or market appraisal of the North Balga property had not been obtained, John stated his belief that its value would have increased to $215,000. He attributed the following values to the remaining assets: Jeep - $12,000; Boat - $13,000; Trailer - $100; Mini-Bus - $8000; ANZ account - $18,802; ANZ cheque account - $6645.41. The value of household items is stated to be $8855.
39 The increase in value of the North Balga property, together with a reduction in the value of the other assets due to depreciation and changes in the balance of the bank accounts, results in a net asset value, exclusive
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- of superannuation, of $282,402.41. It can be seen that there has been only a small change in the net value of John and Antoinette's assets.
40 As at 4 May 2005, the withdrawal value of John's superannuation fund was $66,871.36. In his oral evidence John stated that, if he were to receive any monies from his father's Estate, he intended to invest those monies in his superannuation fund to fund his retirement.
41 In the affidavit of 27 July 2005 John provided more recent income figures for himself and his wife. He also indicated that the business' contract with the Retinitis Pigmentosa Foundation to provide its clients with a bus service had been renewed on two occasions. In his oral evidence John expressed the belief that the Foundation would continue to renew his contract until he ceased business. Although the tax returns for John and Antoinette for the financial year ending 30 June 2005 had not been completed by their accountant, the affidavit provides the figures for the financial year ending 30 June 2004. In that year John's net annual income was $13,896 which equates to $1158 per month. Antoinette's net income was $18,820 which equates to $1568.33 per month. Their joint monthly income for that year was $2726.33 per month. John deposed to the fact that he had been advised by his accountant that the figures for the financial year ending 2005 would be very similar. According to John, after deduction of expenses and outgoings, he and his wife are generally able to save approximately $665.19 per month.
42 It is clear from this summary that John and Antoinette are relatively low income earners but are careful with their money and manage to save quite a surprising amount of their income. This approach has undoubtedly led them to the situation where they own their home and a number of other assets of a very modest value and are virtually debt free. However, the one aspect of John and Antoinette's financial position which would create justifiable concern on their part is the level of John's superannuation so close in time to the normal retirement age.
43 As to John's health and his future employment prospects, John had an operation for bowel cancer in November 1986. He is required to have a check up every three years. He has had an operation to fit steel rods into the L3 and L4 vertebrae in his spine. The operation was only partly successful resulting in the need to take pain and anti-inflammatory medication. He has gout and suffers from hay fever and sinus problems. He also suffers from asthma. He wears glasses for visual difficulties. John suffers from deafness in both ears and also from tinnitus. The deafness in his left ear was caused by an abscess that burst when he was
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- 16 years of age. In early 2000 he suffered what he believes to be a mild stroke with a resulting abnormal facial sensation. However, I note that there is no mention of this in his general practitioner's report.
44 Health permitting, John intends to continue operating the business until retirement age. Antoinette intends to retire within the next one or two years.
45 It is apparent from the evidence relating to Trevor that, although he too suffers certain medical problems, his financial position was at all relevant times much better than that of his brother. In his affidavit of 20 May 2004 Trevor, who was then 56 years old, stated that he was suffering from post traumatic stress disorder and was unable to work. In addition to post traumatic stress, Trevor suffers from gastrointestinal problems, hypertension, severe depression, a hearing disability, lower back trauma and short-sightedness. When he finished work Trevor received $4991 in "termination pay" which he and his wife used to supplement his disability pension of $260 per fortnight. As at the date of the affidavit, Trevor was awaiting approval of his application to the Department of Veteran Affairs for a totally and permanently incapacitated ("TPI") pension in the sum of $760 per fortnight. On approval of a TPI pension, Trevor would then be able to draw a service pension through Veteran Affairs of approximately $480 per month. Further, Ann, who retired from nursing in May 2003 despite being only 56 years of age, would be eligible as a dependant spouse for a service pension of approximately $434 per month. In those circumstances, Trevor and Ann's combined pension would total $3348 per month. Trevor and Ann's assets as at the date of the affidavit were the Greenough Property, a 1991 Subaru motor vehicle, a 2001 Magna motor vehicle, a ride-on lawn mower, a tractor, trailer, moneys in the bank, superannuation, personal effects and general household goods. Trevor values his half share in these assets at $333,982. The liabilities are stated to be the mortgage over the Greenough property and an ANZ bridging finance loan totalling $74,948. The net value of Trevor's half share in these assets is $259,034. As I have indicated, superannuation is included in the list of assets. Trevor's half share is stated to be $81,925 which puts the value of the fund at $163,850. Despite referring to the potential for Ann to obtain a pension, Trevor failed to disclose his wife's income in his initial affidavit. In cross-examination, he said that he believed it to be in there. I do not accept that explanation. In my view, the omission is consistent with Trevor's attempt to understate his financial position. Trevor agreed that, as at the date of his father's death, his and Ann's joint income per annum was in excess of $90,000. John and Antoinette's combined income per
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- annum was approximately $35,500, less than half that of his brother and sister-in-law.
46 Trevor deposed to the fact that in August or September 2003 he and Ann sold their two properties in Thornlie and Rangeway and purchased the Greenough property. He stated that he "refinanced a mortgage with the ANZ Bank". Trevor makes no mention in his affidavit of 20 May 2004 of using the moneys from the Estate to facilitate the purchase. A market appraisal of the Greenough property is attached to the affidavit and values the property at $340,000.
47 Based on the list of expenditures, it is apparent that, as at the date of the affidavit, Trevor's expenditure exceeded his income. However, in his affidavit, Trevor does not address the position prior to commencing on a disability pension when both he and his wife were in full time employment.
48 In his subsequent affidavit of 5 July 2005, Trevor confirmed that his TPI pension had been approved and as a result his and Ann's joint income per fortnight was $1581.80, or $3427.23 per month. The joint monthly expenditure is stated to be $2705. Consequently, the expenditure no longer exceeded the income. The joint surplus of income over expenses is stated to be $721.29 per month, equating to personal savings of $460.65 per month. A revised list of the values of Trevor's half interest in the assets totals $258,275. The liabilities have been reduced to $27,489.75 and include legal fees. Therefore, Trevor's half share in the net assets at the date of the affidavit were $230,785.25.
49 In the affidavit of 5 July 2005, the half share in the mortgage over the Greenough property and the bridging loan has been reduced from $74,948 to $20,000. The explanation provided is that Trevor and Ann have accessed their superannuation and used the moneys to reduce the mortgage and extinguish the bridging loan. It is in this affidavit that Trevor first mentions that he used all of the net funds from the deceased's Estate, except $10,000, to purchase the Greenough property. The $10,000 was divided equally between Trevor's two sons. According to Trevor, he acted in accordance with a wish expressed by the deceased shortly before he died.
50 In his affidavit of 24 October 2005 Trevor deposes to the fact that he and his wife sold the Greenough property and purchased the Thornlie property in his wife's name only. The ride-on lawnmower and tractor were sold as part of the Greenough property. The 1991 Subaru motor
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- vehicle was traded in for the Mitsubishi Pajero. The 2001 Magna motor vehicle was registered in Ann's name and Trevor states that he mistakenly listed it as part of his assets "as my wife and I have always regarded everything as being jointly owned".
51 As to the value of his assets, Trevor states his current assets which consist only of the Mitsubishi Pajero, the trailer, personal effects, the moneys in the joint ANZ bank account and a half interest in general household goods amounts to $109,756.23. He does not include any portion of the Thornlie property or the proceeds of sale from the Greenough property in his list of assets. According to Trevor he has no liabilities.
52 Trevor further deposes to the fact that his pension has increased to the sum of $1199.40 per fortnight. Ann's war service pension has increased to $401.44 per fortnight, providing a joint income per fortnight of $1600.84, which equates to a combined monthly income of $3468.48. The joint monthly expenditure is stated to be $2739.64, leaving a surplus of $728.84 per month. I note in passing that some of the expenditure items such as entertainment ($240 per month) and alcohol ($420 per month) are quite high and would explain the comparatively low level of surplus income.
53 Trevor's explanation for purchasing the Thornlie property in his wife's name only is far from compelling. In his affidavit Trevor explained that he has for the past 2½ years consulted a psychiatrist with respect to his depression and a post-traumatic stress disorder. In one of the consultations, his psychiatrist is said to have recommended to Trevor that he needed "to be less self-possessed". After discussion with Ann and with the accountant, the decision was made to purchase the Thornlie property in her name only. No medical reports were produced to support Trevor's claims of psychiatric illness or his claims of the advice he received. Nor was the treating psychiatrist called as a witness. On Trevor's evidence it appears that he interpreted the psychiatrist's advice as encouraging him to divest himself of assets. Curiously, the need to be "self-possessed" did not prevent the purchase of a $52,000 motor vehicle.
54 Not surprisingly, Trevor was cross-examined on his account of his financial circumstances and his actions in divesting himself of any real estate prior to the hearing of his brother's claim against the Estate. Trevor explained the proposition that he needed to be more self-possessed in the following terms. In the psychiatrist's evaluation of Trevor's medical condition he concluded that Trevor needed to "download responsibilities"
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- and become "less possessed" about what he does, what he thinks and how he approaches life. According to Trevor, it was for that reason that the Thornlie property was purchased in his wife's name only. He denied that he considered it to be a joint asset. His explanation was that he simply lived there with his wife. He further denied that he wanted to divest himself of assets. However, when asked to explain why the house needed to be in his wife's name only he responded: "Because my accountant suggested that that was the only way to avoid crap like this occurring." It was apparent from his further explanation that the purpose was to prevent a claim because the property would belong to his wife. However, when it was directly put to him that his intention was to avoid a claim he denied that to be the case. He gave even more evasive responses to further questions on this point, unsuccessfully attempted to convey that the expression "crap like this" meant something other than the legal proceedings brought by John for a share of the deceased's Estate.
55 Trevor was also cross-examined on his response to the plaintiff's solicitor's letter regarding the Estate. Trevor agreed that he advised that the current value of the Estate was nil and that he intended his brother should rely on that statement. This was despite his concession that, as at 22 April 2003, the net value of the Estate was approximately $191,000 and that he had used all of it to pay for the purchase of the Greenough property. He also conceded that he received the moneys as beneficiary of the Estate but then cavilled with the proposition that the moneys were from the Estate, responding that the moneys were from the Family Court action that he pursued after his father's death, albeit on behalf of his father. He explained that the money never went into the Estate. He said: "I have never to this day received any money marked to the Estate of Douglas Hector Green … I received a cheque made out to Trevor J Holtom on 2 March 2003 for $197,000". In my view, none of these responses constitute a reasonable and informed response to a legitimate inquiry.
56 Despite the concessions to which I have referred, Trevor persisted in denying that he had given a misleading impression of the value of the Estate. However, the misleading nature of the statement to the solicitors lies in the failure to advise that the balance was nil because the funds had been dispersed and used to purchase the Greenough property. Under cross-examination it was clear that Trevor falls into that group of witnesses who maintain a particular position in the face of all evidence to the contrary. It does not reflect well on his veracity. Trevor disputed the proposition that anyone reading the letter would gain the impression that no moneys had been received as a result of his father's death. He denied
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- that that was the impression that he intended to give but, in my view, no other reasonable conclusion is open.
57 In re-examination Trevor maintained that the value of the Estate was nil at the time of the deceased's death because there was nothing in the Estate until the compromise judgment was made in the Family Court on 31 January 2003. This explanation overlooks the fact that the letter was written after the Family Court proceedings had been settled and the amount owing to the Estate as a result of the Family Court proceeding was known.
58 I found Trevor to be a wholly unsatisfactory witness. He was both defensive and evasive in giving his evidence which was often contradictory. At times he made no real attempt to answer quite straightforward questions that were being put to him. Overall, he had a contemptuous attitude to the proceeding and I found much of his evidence to be inconsistent with objective facts and his explanations lacking in credibility. The result is that I am not prepared to accept Trevor's evidence on any disputed matter unless it is supported by other evidence from an independent source.
59 On behalf of the second defendant, it is submitted that the Court should refuse to make an order in favour of the Plaintiff on the ground that his character or conduct is such as to disentitle him to the benefit of an order. The submission relies on a number of factors:
1. The plaintiff's character as evidenced by the request that he leave Nanna Green's house;
2. The plaintiff's character as evidenced by an incident at Trevor's daughter's wedding;
3. The plaintiff's estrangement from the deceased;
4. The plaintiff's failure to visit the deceased during the course of the deceased's terminal illness or to make enquiry about his condition.
60 There is a degree of overlap in the evidence with respect to each factor but, for convenience, I propose to deal with each factor separately. However, it is the submission of counsel for the second defendant that it is the combination of these factors rather than the effect of any single factor which operates to disentitle the plaintiff from the benefit of an order.
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(1) Leaving Nanna Green's house
61 When John decided to move to Perth in 1961 he first stayed with his father at the Claremont house. However, after two months, John was told by his father that he had made arrangements for him to stay with Nanna Green and his grandfather. He told John that he did this because John's presence was interfering with Anne's university studies. According to John, when he lived at Nanna Green's house he was employed and paid board and helped to maintain the garden. Nanna Green did his washing, cooked his food and did most of his cleaning.
62 After two or three months of living with his grandparents John was asked to leave. According to John, Nanna Green said to him that it was too much for her to wash and prepare his food when his grandfather unwell.
63 Trevor's version of the events surrounding John's departure from Nanna Green's house is allegedly based on what he was told by his father "in subsequent years". The version of events given by Trevor is that on one occasion John was aggressive and abusive towards his grandmother. On another occasion John was abusive, violent and threatening towards his grandmother when she complained about a wasted meal. When his grandfather intervened John was also abusive and threatening to him. Allegedly the grandfather expressed the view that he was sick of John's abusive language. It was apparently as a result of this last incident that the deceased was contacted and told that the grandparents did not want John to live with them any more. Trevor alleges that the deceased was very disappointed with John's conduct towards his grandmother. He also alleges that:
" … at the time my Father had wanted the Plaintiff to help him with his trucking contracting business and the Plaintiff's actions had deleteriously affected my Father's relationship with the Plaintiff and the Plaintiff did not see my Father again until 1988".
64 This evidence is, of course, hearsay. The weight to be attached to it is not only influenced by the fact that the father's veracity cannot be tested, the time lapse since the events occurred and the account was given, the account may have been affected by the fact that the relationship between the father and John did not develop into a loving father and son relationship. The weight of the evidence is also adversely affected by Trevor's recollection of matters told to him some time ago.
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65 John denies the allegations. He maintains that he never abused his grandparents or acted aggressively towards either of them. He states that the principle reason he was asked to leave was because his grandfather was quite frail and it was too much work for his grandmother to look after both of them. John was disappointed but he understood that it was the best for his grandparents. John also denies that his father ever rang him to tell him to leave his grandparents house or that he had an argument with him about his grandparents. John also disputes that his conduct towards his grandparents resulted in his father deciding against asking John to help him with his trucking contracting business. As John points out, these events occurred in 1961 and before he moved into Nanna Green's house. At that stage his father was employed as a truck driver. It was not until 1963 that the deceased bought a truck from his employers and some of their contracts and operated his own business. According to John, on one occasion, his father asked him to go out in the truck with him for the day but he never offered him a job and could not because he was not self-employed at that time.
66 I found John to be a credible witness who did not exaggerate or attempt to evade difficult issues. In all matters, including those to which I will later refer, his evidence was consistent and plausible. In my view, cross-examination served only to reinforce his credibility.
67 To a certain extent, John's version of events is supported by Anne McKendrick who recalls John living with her and her parents at the Claremont house for a short time before moving in with his grandparents. She was never aware of any abuse by John towards his grandparents and they never spoke to her of any argument with John despite the opportunity to do so when she visited them with her parents. According to Anne, John moved into his own accommodation because he was "causing a bit too much work for Nan and Pop Green".
68 She also confirms John's account that it was not until 1963 that her father's employer went out of business and he took over the truck as an owner/driver. She also confirms that her stepfather never spoke about offering a job to John or being disappointed with John. Anne McKendrick's evidence has considerable weight because of the close relationship between her and her mother and step-father which continued through her adult years and came to include her husband. In my view, the probability is that if John were to be violent to his grandparents, such a serious matter would have become known to Anne. I found Anne to be a reliable and credible witness who gave her evidence in a calm and controlled manner. Although freely admitting to socialising with John
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- when he first came to Perth to live and maintaining some small degree of contact over the years, she gave no impression of being partisan. I prefer her evidence to that of Trevor's in all respects.
69 Perhaps one of the most significant factors in determining whether there is any substance to these allegations is that the only evidence of them comes from a witness that I have already found to be lacking in credibility and who rarely misses an opportunity to cast the plaintiff in an adverse light. Indeed, some of Trevor's comments relate to such minor matters they can properly be described as petty. However, there are other factors that would lead me to reject the event as disentitling conduct, either on its own or together with other factors. Even if there were some truth to the allegation, it takes no account of the fact that John was only about 16 years old at the time. Without condoning any degree of violence to the elderly, it would not be reasonable to hold against a 57-year-old man an incident of this type which occurred when he was 16 years old.
70 There is another factor which makes John's explanation more plausible. On one hand, it is difficult to accept that a teenager's grandmother would ask him to leave her house simply because he caused too much work. It is tempting to think that there must be some underlying reason. However, it must be kept in mind that Nanna Green was quite prepared to tell the homeless and penniless mother of her two small grandchildren to leave and get work because it was proving too costly to care for them. When this conduct is considered it is not difficult to accept John's version of events.
71 I am not persuaded that the request that John leave his grandparent's house resulted from any misconduct on his part. I consider the allegation of violent and abusive behaviour by John towards his grandparents to have no substance and therefore cannot constitute disentitling conduct.
(2) Lee's Wedding
72 On 4 April 1992 John and his family attended the wedding of Trevor's daughter, Lee. At the wedding John told the deceased that Antoinette had been in hospital during the previous week for a hysterectomy and that she had two blood transfusions. The deceased chastised John for not contacting him to tell him of his wife's operation. In response, John said words to the effect that his father also owned a telephone and that "if he bothered to ring me then he might have been aware of my wife's operation".
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73 On John's affidavit evidence, the only event which occurred at the wedding reception was a "very minor argument between himself and Gary". In his oral evidence John admitted to having words with his half-brother, Gary. He admitted to saying to Gary "You're finished, mate. You're not my brother. That's it." and walking away. It would seem from this account that the incident was somewhat more than "a very minor argument". However, according to John, Gary's wife made more of a scene than anybody else. John denies that he was abusive or drunk at the wedding. The deceased was sitting right next to Gary but John denied that his father had any words with him about the incident or his behaviour at all. John sat at his father's table until 11.45 pm and then said goodnight and shook his hand.
74 Trevor attributes the later estrangement between John and his father, and also between John and himself, to what he variously described as his brother's drunken, abusive, aggressive, violent and threatening behaviour at the wedding. Trevor maintains that he was trying to calm the situation and put an end to John's behaviour. The behaviour is said by Trevor to have begun when John became loud, obnoxious and abusive towards his wife and used extremely course language to her and about her at the table. He then acted in the same manner towards his step-brother, Gary. Because the deceased was seated at the same table as Gary, he became involved and reprimanded John. The result was that John's behaviour worsened considerably with threats to assault the deceased and to kill Gary. According to Trevor, John's behaviour subsided when Trevor asked him to leave the reception. Trevor states that, to his recollection, his father was deeply disappointed and disturbed about John's behaviour. Trevor suggested that his father "had not seen such an abhorrent display of behaviour before at a family occasion" and believed that John should apologise for his behaviour.
75 It is clear that there is some difficulty in reconciling John's account of the evening with that of Trevor. However, there is other evidence concerning the event. Trevor's son, David, also alleges that at Lee's wedding John came up to his table and said that he was going to kill Gary. Robert, another of Trevor's sons, gave affidavit evidence that during the evening of the wedding it became apparent that John was intoxicated and extremely volatile towards Gary and to the people sitting with Gary at his table. Trevor's wife, Ann, gave no evidence about events at the wedding. Presumably, if she had been privy to any such event she would have mentioned it in her evidence.
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76 Antoinette confirmed her husband's account of the incident by repeating what he had told her. She refutes any assertion that John was abusive or aggressive to her at the wedding. She said that John was very thoughtful that night and was taking care to look after her because she had only recently been released from hospital. Antoinette denied witnessing any incident between her husband and his stepbrother. She denies that Trevor came and spoke to her and John and said that Trevor spent most of the night with his wife's family who were visiting from Sydney. She said that at 11.15 pm John took her up to her room at the hotel and then returned to the reception. Her husband did not tell her that he had had words with his father. However, she knew that at the church the deceased had asked John why he had not told him about her operation.
77 Anne McKendrick was also at Lee's wedding and sitting at the table of her mother, her step-father and Gary. She maintained in her evidence that she did not see or hear any abusive behaviour or threats by John at the wedding towards anyone. She said that he was chatting to everyone at the table after his wife had gone to bed.
78 There is a clear conflict between the evidence of Anne and that of Trevor and his sons. I have already expressed my views on the comparative credibility of Anne and Trevor. In the circumstances I am not satisfied that John's behaviour was drunken and abusive. Clearly there was an argument between John and Gary but I am not persuaded that John's conduct has been accurately described by Trevor or his sons.
79 Even if Trevor's account of the incident is without exaggeration, I am still not persuaded that a single incident of drunken and aggressive behaviour to a maternal half-brother at a family function, involving no assault or physical injury, would disentitle a son from any provision being made for him from his father's Estate. It is the sort of event about which there would be much disappointment on the part of a parent but it is, in my view, highly unlikely to lead to a wise and just father ceasing all contact with his son.
(3) The Plaintiff's estrangement from the deceased and from Trevor and his family
80 As I have already mentioned, when John found out the name of his biological father, he immediately contacted him. When he advised his father that he was coming to live in Perth, he was allowed to stay at his father's house for two months before being asked to leave because his presence might interfere with his stepsister's studies. When he lived at Nanna Green's house, on occasions his father would visit him at his
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- grandparents' house and at other times John would see him when John and Anne dropped by the Claremont house. Having been asked to leave Nanna Green's house, John then asked his father if he could stay with him but his father declined, again on the basis that John would interfere with Anne's studies. John then moved into a boarding house in West Perth. He telephoned his father to tell him of the new address. John said in his evidence that he later lost touch with his father but, in view of other evidence given by him, that must be a reference to the period following 1992.
81 Trevor appears to attribute to the incident at Nanna Green's the reason why the relationship between John and the deceased failed to flourish. However, in view of my findings on John's departure from Nanna Green's there can be no substance to that proposition. Although the relationship failed to flourish, it does not mean that there was no relationship between John and his father.
82 John was questioned about his reaction to being denied a place in his father's home and being asked to leave his grandparent's home. John rejected the proposition that he must have been lonely and frightened on the basis that he was "big enough to look after himself". However, Anne considered that John was disappointed that he was not living with his father. She said:
"He would have very much liked to have been living with his father, I think. He'd made the effort to contact him and it didn't sort of work out quite as he expected."
- John conceded that it did cause him some distress when he was asked to leave Nanna Green's. However, he denied that it caused him to feel resentment towards his father. As he pointed out, he went back and saw his father after that, which is inconsistent with any real resentment.
83 After John left his grandparent's house he did remain in contact with his father. When he moved into the boarding house in West Perth he rang his father to tell him where he was and to give him the phone number of the place where he was working. About a month later John caught the bus down to Cottesloe and saw his grandparents and the following weekend he caught the train and went to see his father. He had no further in person contact with his father after that until 1989. Until approximately August or September of 1989, contact with his father consisted of occasional phone calls, usually initiated by John. John called his father to let him know that he had married. He explained to him that he could not invite him to the wedding because of his concern that there might be problems
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- between his mother and George on the one hand and with his father and Violet on the other. John also called his father when each of his children was born. He told him what hospital Antoinette was in when his daughter was born "but he never bothered to visit". He did not visit when his son was born either. The first time John's father saw his grandchildren was on Father's Day in 1989.
84 Attempts on the part of counsel for the second defendant to show a lack of contact and a distance between John and his father only served to underline an inexcusable lack of interest and responsiveness on the part of the deceased, even in the face of repeated attempts by John to build a relationship. The question: "Did you ever send any Christmas cards?" elicited the poignant response: "Once or twice, but I never ever got any back." Sadly, the deceased did not even bother to tell John that Nanna Green had passed away. That information was communicated to John only when he initiated in person contact with his father in 1989.
85 John denied that the lack of contact by his father caused him stress and resentment. He said he just accepted it. Indeed, his father's behaviour was far from new to him.
86 John's evidence of his attempts to develop and maintain a relationship with his father is confirmed by Anne McKendrick. She knew that John contacted his father on several occasions between 1961 and 1988 because she was present in the house when he rang. He would to tell the deceased that he was getting married and that the deceased was a grandfather and the news would be passed on to her. In view of my findings on the credibility of John and of Anne, I accept that there was continued, unreciprocated, contact between John and his father following John's departure from Nanna Green's house.
87 I note that Trevor states "and the Plaintiff did not see my Father again until 1989". Trevor asserts that the plaintiff had no further contact with his grandparents or his father until Trevor made contact with his father in 1989. Throughout his evidence Trevor's approach is to place responsibility for the development of a father/son relationship entirely on John. I note in passing that Trevor provides no reason for waiting approximately 40 years to contact the deceased.
88 It is the case that there was a resumption of a closer relationship between John and his father in 1989. There is a dispute on the evidence concerning which of the two brothers initiated the contact and exactly when in 1989 it first occurred. According to John, in August or
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- September of 1989 he asked his wife and children if they would like to meet his father. He also rang Trevor to ask whether he and his family would also like to meet his father. All agreed and John rang Violet and arranged a surprise Father's Day visit to the Claremont house. Ann McKendrick and her husband were also present on the day. This was the first occasion on which Trevor had met his father. At this gathering the deceased told John and Trevor that their grandfather and Nanna Green had died and that he had received some money from Nanna Green's Estate. Several months later, when John was visiting his father, his father gave him two cheques of $1000 each, one payable to him and one payable to Trevor. John passed Trevor's cheque on to him. Apart from the cheque for $1000 John has no recollection of ever receiving any money or any other gift from his father. Neither is he aware of receiving any financial support during his childhood.
89 According to Trevor, contact was first made with his father in July or August 1988. That contact was instigated by his wife, Ann, who was researching and preparing a family tree. They discussed Trevor contacting his biological father. Ann telephoned the deceased and arranged for Trevor and his family to meet his father at the Claremont house. After spending a Sunday afternoon with his father Trevor telephoned John and advised him of the visit. Trevor was later told by his wife that she had spoken to John and told him that that they planned to visit his father again on Father's Day. Trevor later rang John to tell him of the intended visit and John and his family joined Trevor's family in the visit. Trevor's account of the initial contact with the deceased in 1989 is supported by his wife, his daughter and his sons.
90 Trevor's version of events is denied by John who maintains that it was he who initiated the first contact on Father's Day. Anne McKendrick confirms John's recollection. She maintains that the first time Trevor and his family met the deceased was on Father's Day 1988. That was the first time she met them and she was under the impression on that day that that was the first family get together. She refuted the proposition that Trevor and his family had met the deceased a couple of months before that. She knew that John organised the reunion because it was talked about on that day.
91 To my mind, nothing turns on which family first initiated contact. It is clear that Trevor was willing to commence a relationship with his father and John was willing to resume a closer relationship with his father. I can see no purpose in determining which version of this event is accurate.
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92 It is also the case that, following the meeting in 1989, there was continued contact between Trevor and his father and between John and his father. In February 1990 John's father and Violet visited him in hospital following back surgery. During 1991 the deceased was injured in a motor cycle accident and John and his wife visited him in hospital and at the rehabilitation clinic. Trevor confirms these events as does Anne. Between Father's Day 1989 and April 1992 on average John would call his father about four or five times a year to see how he was keeping and give him news about his family. During that period attempts were made to involve the deceased and Violet in family functions such as birthdays but generally the deceased would decline because he did not like being around large groups of people and he was also quite fussy about what he ate. In his affidavit evidence, Trevor admits John's assertion that the deceased generally did not attend family functions because he did not like being around large groups of people and was quite fussy about what he ate. Anne also confirmed that the deceased was not a social person at all and often refused invitations to attend large gatherings. He was very much a homebody who did not like going out but he liked people to come and visit. He preferred to stay at home and would not instigate contact with family members of his own accord.
93 John and his family would visit the deceased and Violet on their birthdays but Christmas time was not shared. Other than that, the contact extended to a call every two or three months, including a call to tell the deceased that a grandchild had been born. However, by 1992 the contact between John and his father ceased altogether. Trevor attributes the breakdown in relations between John and the deceased to John's behaviour at Lee's wedding. Trevor stated that during the evening John became abusive, aggressive and threatening and "again distanced himself from my Father". Trevor also expressed the view that, after Father's Day, the plaintiff did not foster a relationship with the deceased as did Trevor. I do not accept that evidence. I prefer the evidence of John, Antoinette and Anne that considerable efforts were made on John's part but, for whatever reason, they were not reciprocated.
94 The proposition was put to Antoinette in cross-examination, but denied by her, that her husband told her around the time of the wedding that he did not want any further contact with his father. Antoinette was a nervous witness but not evasive. She was cross-examined without any adverse impact to her credibility. I consider her to be a credible witness and I accept her evidence on matters within her direct knowledge.
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95 John denies any breakdown in the relationship between him and his father as a result of anything which occurred at the wedding. John simply decided to have no further contact with his father because he was "fed up that any contact between he and I was due to my contacting him". Understandably, John resented the fact that his father never instigated any contact and that all the effort was on his part. He intended to sit back and wait to see whether his father contacted him. When he did not, he simply let the relationship lapse. At one point in his evidence John said:
"Because after 1991, when we were at my father's birthday on 7 September 91, Vi gave me a card and said, 'We don't celebrate birthdays. We don't buy presents.' So after we left there I made – 'We'll wait and see what goes on.' My son's birthday was 16 October. He didn't even phone. My daughter's birthday is 7 January. He didn't even phone. My wife's is 23 March, and he didn't phone. So after that I wasn't going to do any more effort to contact him, because I was doing it all."
96 I have already concluded that I do not accept that anything which occurred at the wedding would adequately explain the failure on the part of the deceased to nurture the relationship between him and John or which would constitute disentitling conduct. Further, I do not consider that John's conduct in letting the relationship lapse in the circumstances which prevailed should operate to disentitle him from an order making provision for him from the deceased's Estate. To my mind, none of the matters referred to in the course of these reasons reflect adversely on John. They do, however, speak volumes of the character of the deceased and how undeserving he was of John's repeated attempts to maintain a relationship.
97 It is the case that at around the same time, contact ceased between John and his family and Trevor and his family. John maintains that the cessation of contact with Trevor and his family was not caused by any alleged incident at Lee's wedding but because of the conduct of Trevor and his family such as the failure to thank them for Lee's wedding gift, failing to attend John and Antoinette's 25th wedding anniversary party, comments which Trevor would make about their mother and a dispute over who should pay for the cost of John's daughter's bridesmaid paraphernalia for Lee's wedding.
98 Trevor and his family attribute the loss of contact to John's conduct at Lee's wedding. According to Lee, her Uncle John and his family were never present at any family occasion after her wedding in 1992.
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99 In my view, the break down in the relationship between the two brothers and their families does not assist in determining the outcome of the plaintiff's claim. However, if it were necessary for me to attribute responsibility it would appear that members of both families have contributed to the souring of the relationship.
100 In his evidence Trevor identified the numerous deficiencies in the relationship between John and the deceased. At the same time, he deposed to the closeness of his relationship with the deceased. To Trevor's recollection, from the early stages of his contact with his father, there was a similarity between them that amused members of Trevor's family. His father is said to have expressed sadness at not having contact with him earlier. From that time onwards, according to Trevor, he made an effort to have regular contact with his father and his father enjoyed being with him and his family. Trevor states that over the next 14 years he became very close to his father and his father came to know and love Trevor's family. They were in contact approximately once every month. In December 1988 Trevor's wife had her 40th birthday party which was attended by the deceased and by his former wife, Mamie, with her husband. Trevor observes that this was the first meeting between his biological parents in more than 30 years.
101 John maintains that he, too, had much in common with the deceased. He also did farm work, truck driving and gardening and was involved with motor racing. He also raced at Forrestfield Raceway. John and his wife also attended at Ann Holtom's birthday party. To John's recollection, his mother did not have a partner when she came and drove herself to the party. The deceased and Violet were there and Violet was upset because she did not know that Mamie would be there. John states that his mother told him that his father went over to Trevor's house on the Monday to speak to him because he was not very happy about the situation.
102 In approximately 1989 the deceased taught Trevor's sons and three of their friends to ride a horse. In 1991 the deceased bought a motorbike which he would ride to Trevor's house for a visit. Later in the year the deceased was involved in a traffic accident whilst riding his bike and was seriously injured. He spent three weeks in Royal Perth Hospital and 10 - 12 weeks in the Shenton Park rehabilitation facility. According to Trevor he phoned his father every night and visited him every weekend. In 1993 the deceased rang Trevor to tell him that he had been diagnosed with prostatic cancer and he needed to make a decision about what treatment to receive. He consented to an orchidectomy. For the next seven years until 2000 the deceased remained in relatively good health
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- and, according to Trevor, he and the deceased shared many wonderful times. Conversely, Violet suffered poor health. At this time Anne McKendrick moved to Denmark and Trevor and Ann provided the only source of local support to the deceased and Violet. Trevor maintained that they kept in regular contact with them and did errands such as shopping and collecting medicine for them.
103 In 2000 Trevor was living in Geraldton. On Trevor's evidence, he would return to Perth every second week and would visit and telephone his father. In addition, Trevor telephoned his father nearly every Wednesday. Trevor provides an account of an ongoing relationship with the deceased which involved regular contact and appropriate responses to the deceased's requests or need for assistance.
104 Lee deposes to the fact that she enjoyed a close relationship with her grandfather and went to his home often. Her grandfather would also visit her parent's home regularly. Her grandfather was present at many family celebrations such as weddings and birthdays and was close to her children. Her brother's evidence also supported Trevor's account of the relationship between him and his family and the deceased.
105 Trevor stated in his affidavit evidence that, in mid-2000, Ann experienced problems with her car on the way to visiting the deceased and discussed the problem whilst there. The deceased suggested that Trevor and Ann buy a new car. On the next weekend the deceased gave Trevor an old flour bag which contained $20,000 and told him to use the money to buy Ann a new car. According to Trevor, the gift was to thank him and his wife for the assistance and company they had given to him over the years. Approximately $7000 of the money was used to pay for the deceased's legal fees in the Family Court proceedings. At a later time the balance was used to assist in purchasing a new car.
106 On another occasion, the deceased asked Trevor if he wished to have the deceased's car as Trevor was travelling every weekend in a very fuel inefficient vehicle. Trevor states that he initially declined this offer but his father became upset and insisted. I accept that the deceased gave Trevor his car but I found Trevor's account of the surrounding circumstances to be quite implausible. In view of the comments I have made with respect to Trevor's credibility, the conclusion that I have drawn is that Trevor embellishes his evidence to improve his position. I consider that this incident is but one example of that tendency.
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107 On 7 September 2002 Trevor and his family held a party for the deceased's 83rd birthday. Trevor collected the deceased and Violet and brought them back to his house. Trevor states that he had arranged for all their grandchildren and great-grandchildren to be present. Trevor describes his father's response as emotional. For at least six months prior to his death the deceased was in and out of hospital on a regular basis for pain management. Trevor was in regular contact with his father during this period as was his wife who worked at the hospital. On Trevor's evidence his father would become distressed when Trevor was required to return to Geraldton for work. Trevor states that, as his father's condition deteriorated, he asked him if there was anybody else he wanted to see. He said he would like to see Trevor's mother Mamie again and Trevor arranged to pick her up and take her to the hospital.
108 Anne McKendrick disputes Trevor's glowing account of his relationship with the deceased. She considered that he took every opportunity to overstate his involvement with the deceased. As she explained in her evidence, she and her husband and her mother and the deceased were a very close knit family group and spent a lot of time together. They would see her parents more than once a week and were at her mother's house every Sunday. They often had dinner at each other's homes, played cards and went to the theatre and on other outings together. Because of this she was very aware of what was happening in her parent's lives and, in particular, any visitors they had. According to Anne, she cannot honestly say that she saw Trevor and his family there on numerous occasions. She described the contact as less than once a month and even then not on a very regular basis. On Anne's evidence they would drop in for a birthday or Father's Day. They did not spend Christmas day with the deceased. She denied that Trevor and his family frequented her parent's house on a regular basis until her stepfather became very sick in 2002. Initially, up until about 1992, contact was less than once a month. Visits by Trevor and his family dropped away and amounted to virtually birthdays, Father's Day and Christmas. There were a couple of social events at Trevor's house that her parents attended. She stated that Trevor's three children almost never came to see him, especially in their teenage and young adult years until the deceased became very ill in 2002. She knows this from speaking to her parents and from being involved in their lives. She recalls her father being very excited about giving Trevor's boys horse riding lessons but he was disappointed that the boys never followed up with more lessons.
109 Anne also expressed the view that Trevor gave a lot of disinformation to the deceased which influenced his attitude to John.
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- Trevor would tell family members, including the deceased, of arguments or issues that he had had with John. According to Anne, this usually involved Trevor saying "quite nasty things" about John. Anne gave evidence, without objection that Trevor's conduct played some part in the souring of the relationship between John and his father.
110 It was submitted by counsel for the second defendant that the fact that the deceased was able to build a relationship with Trevor and his family supports the conclusion that it was the plaintiff's conduct which prevented a similar relationship forming between him and his father. In particular, much emphasis is placed on the evidence of John's drunken and aggressive behaviour. I have already dealt with the evidence on that subject and reject the proposition that it was as a result of some inappropriate behaviour on John's part that the relationship between him and his father failed to develop.
111 As I have indicated, I have already formed an adverse view of Trevor's credibility. Further, accepting as I do that Anne is not only a witness of truth but was in a particularly advantageous position to evaluate the nature of the relationship between Trevor and his father, I consider that her assessment of the situation is accurate. Between 1989 and 2002 the contact between Trevor and his father was irregular and largely related to contact on birthdays and other occasional contact. In that respect, up until 1992, it was not dissimilar to the relationship which existed between John and his father. However, I accept that, when it became known in 2002 that the deceased was very ill, the level of contact between Trevor and his family and the deceased increased considerably.
(4) The plaintiff's failure to visit the deceased during the course of the deceased's terminal illness or to make enquiry about his condition
112 Anne knew immediately when the deceased was diagnosed with prostate cancer in 1993. She did not inform John because she was not in contact with him at the time. John maintains that he was not told by anyone that his father had been diagnosed with prostate cancer. Some years later the deceased was advised that his prostate cancer had become active again and he would need to undertake further treatment. On 23 April 2002 Trevor and Violet met with the deceased's doctors who advised that, despite providing treatment for the past 18 months, they were now unable to do anything further for him. The doctors predicted that the deceased would only live for another six to eight months.
113 On 19 April 2002 John's mother's then de facto partner died. John went and picked his mother up after she rang and told him that her partner
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- had died. John's family attended the funeral with his mother. His mother stayed with him for another week after John's daughter's wedding on 27 April 2002. He took her home on Sunday 5 May 2002.
114 In approximately August 2002 John's mother again stayed with him for about a week. During that time, she told Antoinette that John's father was unwell. Antoinette told her that she should discuss that issue with John. However, she did not mention it until 20 October 2002 during a telephone conversation with John in which she mentioned that Trevor was going to pick her up the following Sunday and take her to visit John's father who was in hospital. John told her that he did not know that his father was in hospital and asked her why she had not previously told him. John's mother told him that he was always busy and as a consequence she had not had an opportunity to discuss the matter with him. John asked her what hospital his father was in but she did not know. On John's evidence, up until that telephone conversation with his mother, he was unaware that his father was in hospital.
115 Trevor makes an allegation based on hearsay evidence alone that during his mother's stay at John's place, she told John that his father was very sick and John's response was that the sooner he was six foot under the better. According to Trevor, his mother advised John on many occasions about his father's ill health. John maintains that during her visit with him in August 2002, his mother did not tell him that his father was very sick. He expressly denies making the callous statement attributed to him about his father. As John said, at that time he had not had any contact with his father for 10 years from April 1992. He had no ill feelings towards him, he just did not see or hear from him. It was not until 20 October 2002 that his mother told him about his father's illness. Even then she did not tell John that his father was terminally ill or even seriously ill. He was completely unaware that his father had been in hospital until 20 October 2002. John also refutes Trevor's allegation, based on what he was told by his wife, that in December 2001 John came to his home and during the visit was told by Anne this his father was terminally ill. John does recollect an occasion in December 2001 when he met up with Trevor's wife and two children and was invited back to their house. He asked Anne whether she had seen his father. On John's account, she said that they saw him from time to time and that he was okay.
116 Mamie maintains that she told John on several occasions that his father was ill. The first occasion was just after the deceased was diagnosed with prostate cancer. She confirms Ann's evidence that she
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- called Mamie so that she could get in touch with John and tell him to undergo a medical check. According to Mamie she did pass the information on to John and he later told her that he had seen a doctor. John disputes this version of events. On his account, his father had told him as early as 1988 that John's grandfather had died of prostate cancer. After John suffered from bowel cancer in 1986 he had a prostate check. He was already aware that prostate cancer ran in the family and was already having regular checks at this time. According to John, his mother knew that he was having regular prostate checks and there was no need for her to tell him to have one. If he did tell his mother that he had a prostate check it was not as a result of a call from her arising from the deceased's diagnosis with the disease.
117 Mamie also maintains that she not only told John that his father was very ill, she also said he should go and make peace with him. John's reaction was both negative and forceful. John denied his mother's evidence of this conversation and maintains that he did not have anything to make peace about with his father. They did not contact each other but there were no bad feelings between them. According to Mamie, John got angry when she told him that the deceased had been asking to see her and that she had gone to see him. She remembers saying to John, "Your father had wanted to see me and not you". No explanation is given for why she would make such a hurtful statement to her own son. The spite in the statement reflects adversely on Mamie's character and gives an indication of the level of dysfunction within the family.
118 On the evening of 27 October 2002 John received a telephone call from his half-brother, Rick. During that conversation Rick told him that his mother had asked him to call John and tell him a number of things including that his father was terminally ill. On John's evidence this was the first time he was told of his father's terminal illness. During the conversation Rick also told John that the deceased had given Trevor $20,000. There is no explanation for including this information in a phone conversation advising John that his father was dying.
119 On the evening of Monday 28 October 2002 John telephoned his mother to find out about his father's condition and to ask her why she had not told him that his father was terminally ill. He also raised the issue of the $20,000 payment to Trevor and was told by his mother that he was not supposed to know about it. According to John, his mother became upset and the conversation ended. As a consequence, John was not able to clarify his father's medical condition. On the following day John received an abusive telephone call from Trevor about the conversation between
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- John and his mother. Due to Trevor's verbal abuse, John told him not to telephone him again.
120 Trevor denies that he was abusive. He recalls that his mother was extremely upset after a telephone call with John and "she was extremely concerned about her safety". Trevor also states that he was not present when the phone call took place but his mother rang his wife when they were visiting his father. His account of events is based solely on what he was told about the incident by his mother. She alleges that John was abusive and aggressive.
121 Trevor admits that he telephoned the plaintiff's house and spoke to Antoinette, whom he had not spoken to in approximately 10 years. He asked to speak to John but was told that he should ring back later as they had visitors. He rang back an hour later to discuss the matter with John and was accused by John of abusing his wife, which Trevor denies. According to John, Trevor refused to apologise to John's wife and John told him not to ring his house ever again.
122 On 31 October 2002 John received a telephone call from his mother who told him that his father had died earlier that morning. The funeral took place on 6 November 2002. John and his family chose not to attend. John's explanation was that at the time he was very upset with Violet and Trevor for not telling him that his father was terminally ill. He also chose to stay away to avoid a confrontation with Trevor.
123 Trevor maintains that his father was deeply disappointed by John's failure to contact the deceased when he was diagnosed with prostate cancer in 1993 and before his death. Most of Trevor's other evidence is hearsay and provides no assistance in determining the circumstances surrounding the deceased's diagnosis, relapse and subsequent death.
124 According to Antoinette, John first told her that his father was very sick and in hospital on Sunday 20 October 2002 after he spoke to his mother on the phone and he was quite distraught at the news. John did not know what hospital he was in or what was wrong with his father. Prior to that occasion she had no knowledge of his father being in hospital. She also recalls that the following weekend Rick rang John and that her husband then told her that his father was terminally ill. John was upset that no-one had told him this before. John said that he would ring his mother to find out why he had not been told and to obtain more information. He rang his mother the next night and Antoinette was present when he made the call. According to Antoinette, she heard John
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- asking his mother questions and she could hear his mother yelling back at him. She maintained that John was never aggressive or abusive during the phone call. On the Thursday John's mother rang and told him that his father had died. They decided not to go to his father's funeral because they were too hurt about not being told of the deceased's illness.
125 On 29 October 2002 Trevor rang. Antoinette had not spoken to Trevor since Lee's wedding. Antoinette's account of the conversation was of Trevor asking her to put John on the phone and being rude and aggressive. She told John of Trevor's conduct and when Trevor rang back later John asked him to apologise to Antoinette and said that he would not speak to him until he apologised to her. She then heard John telling him never to ring our home again. Trevor continued to ring and John continued to hang up until he took the phone off the hook. In her oral evidence Antoinette agreed that prior to 27 October 2002, when Rick rang, John was aware that his father was unwell.
126 According to Ann, on becoming aware that the deceased had been diagnosed with prostate cancer, she rang Mamie to tell her to get in contact with John because the condition was hereditary. On her affidavit evidence, Mamie subsequently told her that she had contacted John and he had told her he had had the examination done. Again, this evidence is hearsay and can be disregarded. According to Ann, in 2001 she saw John and told him that his father was not well. It is interesting to note that she does not tell John that his father has prostate cancer or that he is terminally ill, she simply says that John's father is not well. John is alleged to have responded, "Who is my father. Do I know him?" Ann states that she "got the impression that the Plaintiff was not really interested in his father's medical condition". Ann also maintains that on many occasions she asked the deceased if he wanted to see John and he always answered in the negative. She states that he would get agitated and hostile whenever she mentioned John's name. John denies that Ann told him that his father was unwell.
127 Lee alleges that she recalls an occasion in November 2001 when her mother told John that his father was ill and he responded "Who is my father?". David confirms John's response. This allegation is also denied by John. David also gives a detailed, though somewhat implausible, account of an incident after the deceased's death during which John is alleged to have used foul language and made threats against David and Trevor. It is interesting to note that a significant component of the conversation was John's complaint that he had not been told of his father's illness. To this extent, David's evidence is consistent with John's position
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- that he was not told of the seriousness of his father's condition. David deposes to telling John that this was "crap" but his dispute is based on a belief that Mamie and Antoinette told John rather than on any actual knowledge. It is clear that the account is intended to place John in an extremely poor light but I note in passing that David's conduct during the conversation was less than exemplary. The conversation ends on an extremely poor note and yet, on David's account, he is minded to call his Uncle the next day, allegedly to "ask him why he had carried on the way that he did". Apparently John again said that it was because he was not told that the deceased was sick or dying. At this point David feels motivated to tell John that the deceased did not want to see him and denied that he was his son. Perhaps not surprisingly, John's response to this piece of information was to become angry and call the deceased an offensive name. David then advised him that the deceased considered the name to apply to him also. Allegedly John's response was to invite David to call in if he was ever in the area because he had nothing against him, only between him and Trevor.
128 John confirms that he met David after the deceased's death and that they had a fight about whether John knew of his father's illness. He denies the balance of the conversation. He agrees that David rang the next day and that he again told him he was upset that he had not been told that his father was sick or dying.
129 Richard gave affidavit evidence of John's anger over hearing that the deceased had given Ann $20,000 to purchase a new car. According to Richard, after imparting this information, he then asked John whether he intended visiting his father. John's reaction was vehement and included statements that the deceased wanted nothing to do with him when he was alive and that the deceased could die and rot for all he cared. John denies that this conversation took place. However, even if it did, an angry reaction would be understandable from a son, who had effectively been rejected by his own father both emotionally and financially, on hearing that his father had given a significant amount of money to his brother's wife.
130 Robert deposes to conversations with his grandfather during which his grandfather expressed his dissatisfaction with John and told him that he had no desire to see him. He is also alleged to have said that he "only ever had one son". According to Robert that was a reference to Trevor. Robert also states that he asked his grandfather if he wanted him to contact John and he always declined on the basis that John had not bothered to contact him so why should he. If there is any truth in Robert's
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- account of the deceased's attitude, there is, in my view, no basis for such an attitude on the part of the deceased. I am satisfied that John made repeated attempt to build a relationship with his father and the failure to do so was the responsibility of the deceased rather than of John. I also accept the submission made on behalf of the plaintiff that, if Robert's account is accurate, then the deceased would not have agreed to a visit from John in any event in which case John's failure to make the attempt ceases to be of significance.
131 Once again, Anne's evidence cast considerable doubt on the veracity of the evidence of Trevor and the members of his family who support his position. According to Anne, when the deceased became ill in late 2002, Anne asked Trevor on numerous occasions whether he had told John about his father's illness. Trevor said to her that he was keeping in contact with John by phone and had fully informed him of his father's illness and prognosis. Trevor told her that John was not interested. One such conversation with Trevor occurred in the last month of the deceased's illness when he was in the palliative care ward. As she believed that Trevor had told John about his father, Anne did not. Anne's evidence is clearly in conflict with all the other evidence on this issue and calls Trevor's motivation into question.
132 In cross-examination it was suggested to John that he made no inquiry about his father's health but I do not consider that his failure to do so was anything other than excusable and a consequence of his father's failure to reciprocate John's repeated attempts to build a relationship.
133 I have the greatest difficulty with the accounts given by Trevor, his wife and his children as to John's knowledge of his father's illness. I find their accounts to be highly implausible. They simply do not ring true. However, the position taken on behalf of the plaintiff was that even if the evidence is accepted, the failure by John to contact his terminally ill father, in all the circumstances that related to their relationship, simply does not amount to disentitling conduct.
Conclusions
134 On the evidence to which I have referred, I have no hesitation in concluding that the deceased entirely failed in his duties as a parent to John. He failed to ensure that John had an adequate education to equip him for life. He failed to provide for his advancement in life. He failed to make any provision for John in life or in death. The Estate was sufficient for the deceased to make provision for both his sons and he should have done so. John is in modest financial circumstances and, despite careful
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- management of his finances, has been unable to amass adequate funds to provide for him and his wife on their retirement. John's health is not good and retirement could be imminent. At most, it is but a few years away. In my view, none of the matters drawn to my attention on behalf of the second defendant detracts from that conclusion. For these reasons, I am satisfied that the jurisdictional requirement has been met.
135 The defendant's position is that the plaintiff, by reason of his character and his conduct, should be disentitled to the benefit of an order making provision for him from the Estate. It is said that the plaintiff has a violent and abusive temperament which has caused the rift between him and his father and him and his brother. Particular incidents relied upon are the circumstances of his departure from Nanna Greens, his conduct at Lee's wedding, his failure to contact his father when his father was terminally ill and his inability, for various reasons, to maintain a relationship with his father. I have made various findings and observations on each of these issues in the course of these reasons. As I have indicated, I am unpersuaded that any of these factors, either together or independently, constitute disentitling conduct.
136 The relationship between the deceased and the plaintiff was never a close one. There is some evidence that John and his family were deliberately frozen out in the last months of the deceased's life. There is also evidence that Trevor undermined John with his father. However, it is not necessary for me to make a finding on such issues. In my view, the cause of the deceased's incapacity to build a relationship with his adult son is immaterial provided it does not arise from any conduct on the part of the plaintiff. In my view, the plaintiff took all reasonable steps to build a relationship with the father who had abandoned him when he was a child; that he failed to do so resulted from a deficiency in the character of the deceased rather than the plaintiff.
137 In Kleinig v Neal (No 2) (at 540) Holland J observed:
"If it is a case of parent and child, another circumstance is that the parent is responsible for bringing the child into the world and having done so assumed a duty to be concerned with the child's welfare. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Difference of outlook between different generations is not exceptional, it is the general rule, so some friction between
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- parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed. The court must take in the whole scene and make the judgment that it considers that a wise and just parent would have made in the circumstances."
138 In my view a wise and just parent would have divided the Estate equally between his two sons. If there were any basis for showing a preference for Trevor the moneys received by Trevor during the deceased's lifetime constitutes a sufficiently added benefit.
139 I consider that the plaintiff should be awarded 50 per cent of the net Estate of the deceased. That will provide him with some capital to augment his superannuation and provide him with a better standard of living in his retirement than would otherwise be the case, notwithstanding his years of hard work and his careful financial management. In my view, there is no conduct or circumstance on the part of John that should reduce that provision
140 I am anxious to ensure that the ploy of using the proceeds of the sale of the Greenough property to purchase the Thornlie property in the sole name of the defendant's wife does not operate to prevent the plaintiff from enjoying the benefit of a judgment in his favour. I will therefore hear counsel as to the formal orders that should be made.
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