Joss v Joss

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2017 05181

IN THE MATTER of Part IV of the Administration and Probate Act 1958
- and -
IN THE MATTER of the Will and Estate of PETER SOLLY JOSS, deceased
JESSICA KIMBERLEY JOSS (In the Will called JEFFREY KENNETH JOSS)	Plaintiff
v
JUDITH JOSS (Who is sued as the executor of the Estate of PETER SOLLY JOSS, deceased)	Defendant

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	3-5, 18 September 2019
DATE OF JUDGMENT:	4 August 2020
CASE MAY BE CITED AS:	Joss v Joss
MEDIUM NEUTRAL CITATION:	[2020] VSC 424

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TESTATOR FAMILY MAINTENANCE – Plaintiff adult daughter of the deceased – Plaintiff seeking orders for provision for her proper maintenance and support from the deceased’s estate – Administration and Probate Act 1958, Part IV.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Wells	Slater and Gordon
For the Defendant	Mr S Pitt Ms R Morison	Arnold Bloch Leibler

HER HONOUR:

Background

The deceased, Peter Solly Joss, was born in May 1923 in Czechoslovakia. After surviving the Holocaust, he moved to Australia, where he became a successful businessman. In May 1956, he married Judith, the defendant. They had two children, Ronald Joss, and the plaintiff, Jessica Joss.

Peter died on 22 March 2017, aged 93. He was survived by Judith, Ronald (and Ronald’s children), and Jessica.

By his will dated 15 May 2012, Peter appointed Judith as executor and trustee of his estate. Judith was granted probate on 22 June 2017.

Because she survived Peter, Judith became the sole beneficiary of the will. The property she inherited included all of his real and personal estate (other than assets in Israel, which do not form part of his estate for the purposes of the will). As at 4 September 2019, the value of the estate under the will was about $12.4 million.

In this proceeding, Jessica says that Peter did not make adequate provision for her in the will. She seeks a family provision order under Part IV of the Administration and Probate Act 1958 (Vic) (‘the Act’). Her originating motion, dated 20 December 2017, did not specify the size of the provision sought. At a directions hearing in May 2018, her lawyer said she was seeking 100% of the estate. At the start of the trial, the amount she claimed had been reduced to a lump sum of $5.56 million, being about 45% of the estate. By the time of closing addresses, she was claiming an amount between $3.7 million and $5.56 million.

The general principles governing claims under the Act

It is a well-established principle that a person has the freedom to dispose of their estate as they see fit. Absent a proper basis under the Act, the court will not interfere with that freedom. This allows a person to leave everything or nothing to spouses, partners, children, friends, and others, on whatever grounds they choose.

This principle was described by Callaway JA as being that:

...it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right.[1]

[1]Grey v Harrison [1997] 2 VR 359, 366.

However, where a person has abused that right, and is considered to have breached their moral duty to those for whom they have a responsibility, the court has the power to override the testator’s wishes. This is the court’s discretion under Part IV of the Act, to make such orders as are required to ensure the proper maintenance and support of those persons for whom the testator was morally responsible. However, making a family provision order under Part IV of the Act does not allow the court carte blanche to re-distribute a will in a manner it may consider more just.

Section 91(2) of the Act relevantly provides that the court must not make a family provision order unless it is satisfied that:

(a) The claimant is an eligible person (as defined by s 90 of the Act);

(b) At the time of death, the deceased had a moral duty to provide for the claimant’s proper maintenance and support; and

(c) The will fails to make adequate provision for the proper maintenance and support of the claimant.

In determining the amount of provision to be made by a family provision order, if any, the court must take into account:

(a) The degree to which, at the time of death, the deceased had a moral duty to provide for the claimant;

(b) The degree to which the will fails to make adequate provision for the proper maintenance and support of the claimant; and

(c) The degree to which the claimant is not capable, by reasonable means, of providing adequately for their own proper maintenance and support.[2]

[2]Section 91(4).

The amount of provision made by a family provision order must not provide for an amount greater than is necessary for the eligible person’s proper maintenance and support.[3]
[3]Section 91(5)(a).

Section 91A sets out various matters which the court either must or may consider, in making a family provision order. These will be considered in detail later in these reasons.

The court’s jurisdiction in this area is a broad, discretionary one. Judicial minds may legitimately differ as to the provision that should be made.

Eligible person

There is no dispute that Jessica is an ‘eligible person’, being an adult child of the deceased who falls within s 90(f).

Moral duty

There is no obligation to provide for an eligible person if the deceased had no ‘moral duty’ to that person. In determining whether the deceased had a moral duty the court considers what, in all the circumstances as at the date of death, a ‘wise and just’ testator, rather than a ‘fond and foolish’ one, should have done. The role of the court is to put itself in the position of the deceased and consider what, according to current community standards, that person should have considered their responsibility. Whether Peter had a moral duty in relation to Jessica is a contested matter in this case.

A moral duty is not the same thing as a legal responsibility. If the obligation were legal, such as by way of a contract or trust, then enforcement would be the subject of separate proceedings. While previous promises or agreements may have weight in determining whether the test under s 91 is satisfied, they are not determinative of whether a family provision order should be made. It is the test under s 91, and the factors under s 91A, as they apply to the circumstances of the case, that the court must use to determine the ‘moral duty’ of the deceased.

In deciding whether there was a ‘moral duty’, the court considers whether there is some ‘need’ to provide proper maintenance and support. As with ‘moral duty’, ‘need’ is relative, and can only be determined when considering all of the circumstances at the date of death:

... those who are capable of supporting themselves comfortably, and are likely to be able to do so for the rest of their lives, will find it difficult to show any breach of moral obligation to make adequate provision for proper maintenance and support. The extent to which this requirement has been satisfied ... must, of course, be considered in the light of the provisions made for each applicant.[4]

[4] Collicoat v McMillan [1993] 3 VR 803, 820 (Ormiston J).

In Walsh v Walsh,[5] Hallen J helpfully summarised from the authorities a number of general principles in relation to claims made by adult children, which relevantly include the following:
[5] [2013] NSWSC 1065.

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

(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, … although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation.

(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child’s life and into retirement … Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute.

(d) …

(e) There is no need for an applicant adult child to show some special need or some special claim.

(f) The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration. … Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant. … In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased.

(g) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim.[6]

[6]At [121]. References to other cases within the quoted passage have been omitted.

Adequate provision for the proper maintenance and support

The concept of ‘adequate provision for the proper maintenance and support’ of a claimant is also a relative one. In Pontifical Society for the Propagation of the Faith v Scales, Dixon CJ noted:

It has often been pointed out that very important words in the statute are "adequate provision for the proper maintenance and support" and that each of these words must be given its value. "Adequate" and "proper" in particular must be considered as words which must always be relative. The "proper" maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is "adequate" must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words "proper maintenance and support", although they must be treated as elastic, cannot be pressed beyond their fair meaning. [7]

[7] (1962) 107 CLR 9, 19.

In Brimelow v Alampi, McMillan J noted:

The Court’s function is not to ensure a fair distribution of the testator’s estate or to achieve equality amongst various claimants. The Court’s role goes no further than making adequate provision for the proper maintenance and support of an applicant.[8]

[8](2016) 50 VR 219, 225.

In determining adequate provision, the factors in s 91A are to be taken into account, particularly the size and nature of the estate.

In cases where the estate is relatively large, the authorities have been summarised as follows:

(1) A generous, and not “niggardly” approach is justified.
(2)The amount of provision should not be limited by the standard of maintenance provided by the deceased or by the standard of living to which the claimant has been accustomed.
(3)A generous approach does not, however, justify the Court in ordering more than is needed for the claimant’s “proper maintenance and support”, as those words “place a ceiling upon what the Court may properly do”.
(4)The Court may be justified in making provision for contingencies that would be disregarded in smaller estates or if there were relevant competing claims:
“For a child, particularly a dependant daughter of an exceptionally wealthy father, the standard of maintenance may justly be set high ensuring a degree of comfort and freedom from anxiety for the future which for those not so circumstanced might well seem somewhat extravagant, but it should fairly come within the conception of maintenance and support. The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance.” [9]

[9]Borebor v Keane [2013] VSC 35, [68] (Hargrave J).

It is important to note that in cases such as this one, where there has for many years been a dysfunctional relationship between the parties, an order is only for the proper maintenance and support of a claimant. It is not a means of obtaining compensation, or assigning blame, for past actions.[10]
[10]Edward Jones (A pseudonym) v Constance Smith (A pseudonym) [2016] VSC 178, [40] (Ferguson JA).

Family history

It is convenient to begin with a consideration of Jessica’s personal history and relationship with her family. Many of the important events are not themselves disputed. However, as is not uncommon in cases such as this, family members have very different perspectives or beliefs about why things did or did not happen.

Jessica was born Jeffrey Kenneth, in August 1959, the younger of Peter and Judith’s two children. She had a traditional Jewish upbringing, which was very focused on education and family. Jessica said she had a close and loving relationship with her father, and happy memories of doing activities with him as a child.

Jessica identifies as transgender. She said she began identifying as female from about the age of 10, and began experimenting with cross-dressing in her mother’s clothing when she was about 12.

From 1966 to 1972, Jessica attended Mount Scopus Primary School. She said she had no friends, and spent most of her time in the library, at least in part due to her issues regarding her gender identity.

Jessica said that on one occasion, when she was about 12, Judith walked in on her trying on Judith’s clothes in her parents’ bedroom. She said her mother immediately walked out, and they never spoke about it.

Jessica admitted in cross-examination that she never discussed her gender dysphoria with her parents when she was a child or teen; she said that was because she was still confused about it herself. However, she firmly believes that her mother knew what she was doing, but never mentioned it.

Judith disputed those allegations. She denied that she ever walked in on Jessica trying on her clothing. She said she never saw any signs that Jessica was transgender when she was growing up. Judith’s evidence was entirely consistent with the fact that, due to her conservative upbringing and lifestyle, she had no awareness or understanding of transgender issues back in the 1970s.

From 1972 to 1977, Jessica attended Mount Scopus Secondary School. She did not enjoy high school, describing it as an awful experience. While at Mount Scopus she was expelled twice, once for pushing her Hebrew teacher into a blackboard. She said she was re-instated after her father spoke to the school Board.

Jessica said that during her teenage years she hated being at home, and spent most of her time alone in her bedroom. She said she was depressed, but her parents would not acknowledge the problem, and she was never taken to see a doctor or specialist.

Judith said that during her teenage years, Jessica demonstrated obsessive compulsive behaviours, was a compulsive liar, was prone to explosions of violent anger, and stole from her parents on several occasions. She says she spoke to two psychiatrists about Jessica’s behaviour, but Jessica refused to go and see a psychiatrist.

In 1981, Jessica completed a commerce degree at the University of Melbourne. Whilst at university, she started looking into transgender material and possible medical treatments. During university holidays, Jessica worked at her father’s office; she said she had happy memories of discussing business with her father and her Uncle Morrie.

After university, Jessica was employed as an economist by Chase NAB, in a well-paid position. She saved money and moved into a rental apartment in East St Kilda.

In 1984, around the age of 25, she moved to Sydney to work for Citibank as a hire purchase collector. Her parents furnished an apartment for her in Sydney. She described it as an ‘average paid position’, but could not say how much she earned. During this period, she presented as male at work, but occasionally cross-dressed in the evening. While living in Sydney, she telephoned her father every week. She believed her family were not interested in her life, and she and her father only spoke about work. She believed he was ‘in denial’ about her gender issues.

While her parents were overseas she broke into Peter’s safe deposit box and stole some shares so that she could buy a luxury car.

In 1986, around the age of 27, she moved to London to work for a stockbroking firm. She told her parents she was not coming home again. Her affidavit described this as ‘a well-paying job which enabled [her] to save up so [she] could transition slowly.’ But in cross-examination, she could not say how much she earned. She thought it was ‘70,000 p.a.’, but could not say if that was pounds or Australian dollars.

In late 1987, she returned to Melbourne and lived in an apartment furnished by her parents.

When Jessica was about 28, she moved to Germany on a conditional visa to work as a trainee with Deutsche Bank. To satisfy the visa requirements, Jessica had to speak German to a required level. However, she was not able to meet the language requirement, and the visa was revoked.

Jessica acknowledged that the move to Germany hurt her father, because of his experiences during the Holocaust. She was well aware at that time that he was still deeply traumatised by his experiences. She denied that she went to Germany to deliberately spite her father. Peter did not speak to her for two years after she went to Germany. Notwithstanding the hurt she had caused Peter, he still paid for Jessica’s airfare home to Melbourne. She complained that he had only bought her an economy fare.

In 1989, when she was about 30, Jessica moved to the USA. She joined the US Marines, but was unable to complete basic training due to back problems. She then worked as a night manager at a hotel in Los Angeles.

She lived for some time in the USA with Peter’s cousins, Rose and Margaret, until rented accommodation could be organised with Peter’s help. Peter provided financial support while she was overseas.

Jessica said that she asked Rose and Margaret to speak to Peter about paying for her gender reassignment surgery, which was estimated at US$50,000. She said that Rose and Margaret told her that Peter had refused.

Jessica married a non-Jewish American woman, Joyce, to whom she had been introduced by a friend. This was a marriage of convenience, entered into solely to enable Jessica’s temporary green card to be extended. Jessica then worked as a financial controller for a Hyatt hotel.

In about 1992, Jessica and Joyce’s marriage broke down. Joyce told the US immigration authorities that the marriage was a sham, and Jessica’s green card was revoked. Peter paid Jessica’s legal costs of the divorce and immigration proceedings.

Jessica said that while she was living in the USA, she tried to telephone her father regularly. However, except for one visit by Peter and Judith to the USA, Jessica had no contact with her mother during that period. During that trip, Jessica’s parents gave her $3,000 for furniture.

It was during that trip to the USA that Judith first learned from one of Peter’s cousins that Jessica was transgender. She said it was a great shock to be told that. Back in the 1990s, Judith said she had no idea that people could be transgender. After returning to Melbourne, Judith spoke to a doctor, who explained to her about gender dysphoria.

Jessica’s own psychiatrist, Dr Shields, noted in a report dated 21 September 1999 that it was during the latter part of Jessica’s time in the USA that she first revealed her gender identity disorder and cross-dressing to her family.

I have no doubt that the disclosure of Jessica’s gender dysphoria was something that was very difficult for her orthodox family to understand and accept. Even now, more than 20 years later, Judith does not accept that Jessica identifies as a woman. Judith continues to refer to Jessica as Jeffrey, and to use male pronouns when speaking of her. That rejection of her identity has, understandably, been very painful for Jessica. But even though Peter and Judith did not understand the implications of Jessica being transgender, they continued to support her financially.

Ronald also visited Jessica in the USA, at his parents’ request. He went to find out more about gender reassignment surgery and its ramifications. Ronald asked Jessica to arrange a meeting between him and her doctor, which she did. Ronald was not trying to stop Jessica from having surgery, but he advised her to take it carefully and slowly. Given how recently they had learned of the gender dysphoria, it is not surprising that Jessica’s family wanted her to undergo psychiatric assessment and counselling, before undergoing something as drastic as gender reassignment surgery.

Jessica ultimately returned to Melbourne. Peter suggested she go and work for Ronald at his Trialia Foods business, and said that he would buy her an apartment.

Peter arranged for an apartment in East St Kilda to be bought in Jessica’s name, secured by a mortgage from PSJ Nominees Pty Ltd (‘PSJ’), one of the Joss family companies. She began working at Trialia Foods, helping with day to day management of sales, market research, stock control, and inventory. Jessica said that during this period she visited her father every Saturday with her Uncle Morrie.

In about 1995, Jessica was in a relationship with another non-Jewish woman, Miriam. The relationship ended after a year. This was her last intimate relationship.

In November 1998, Peter wrote to Jessica, saying that they had decided to give her $500 a month, to be deposited in her bank account ‘until further notice’. Jessica wrote back a day later to say that after Judith had confirmed there were no conditions attached to the offer, she accepted, but that it did not alter her ‘views or any future plans’ she may have. In evidence, Jessica said she could not remember what the reference to her ‘views or future plans’ meant.

In February 1999, when she was almost 40, Jessica started attending the Carlton Clinic and taking feminisation hormones.

In June 1999, Jessica quit her job at Trialia Foods. She was unhappy with her life, and felt that it wasn’t going anywhere. She also felt she lacked support as a transgender person. This was the last time Jessica was in paid employment.

By the late 1990s, Jessica started to take increasingly active steps to try to force her parents to pay for the gender reassignment surgery, which she wanted to undergo. She had also started to make more general and more strident demands for substantial amounts of money, clearly believing that she had some entitlement to her parents’ money, despite having done nothing to contribute to their wealth. At some stage, she came to believe that Peter had given Ronald $6.5 million to buy Trialia Foods; she thought it was unfair that she was not give an equal amount.

One Saturday morning, Jessica attended the service at her parents’ orthodox synagogue, and stood up and told the congregation that she was transgender. This publicly embarrassed her conservative parents, as it was no doubt intended to do.

Jessica frequently enlisted other people (including family friends, relatives, and employees of Joss businesses) to advocate on her behalf with her family. No doubt she thought they would have more success than her in persuading her parents to give in to her increasingly more aggressive financial demands. That other people were brought into what they regarded as private family matters was upsetting for her parents, who were very private people.

In a letter written to Ian Simons, a family friend, in early June 1999, Jessica said that if Peter wanted to sort out ‘this problem, then he must be prepared to sign a contract with my solicitor ... releasing $4 million dollars from my inheritance, 2 million down payment at once, the rest in a trust in my name, no trustees, separate from the family accounts.’ She described this as her ‘birthright’. She said that there would be no conditions, in return for which she would give up all rights to future inheritance. She stated that ‘I do not want any contact with Mum and Dad in the future. This ends our family relationship.’

Sometime before 6 June 1999, Jessica moved out of the East St Kilda apartment, without telling her parents; she simply left the keys with her godparents. She left the apartment standing empty, and it eventually started rotting from mould caused by water damage.

On 6 June 1999, she travelled to Tajikistan, via India, intending to travel on to Afghanistan to fight with the Northern Alliance (also known as the United Islamic Front for the Salvation of Afghanistan). She ended up staying in Tajikistan until 6 September 1999.

Before she went overseas, Jessica told a number of people of her plans. Unsurprisingly, her parents were not supportive. Judith disapproved because Jessica was proposing to go and fight for Muslims. She also thought it was a waste of time, and not something any normal person should be doing. Peter described Jessica as having ‘slammed the door and left.’

Jessica went overseas with very little money, no relevant skills, and no concrete plans. Within a month of arriving in Tajikistan, she had exhausted her funds. She had only taken enough money for the plane ticket and a few nights in India, as she was hoping to fight once she arrived. When she found the Northern Alliance in the mountains of Tajikistan, they suggested she work teaching English, instead of fighting with them.

When she ran out of money, Jessica started requesting that her family send her money. She initially asked them to send her US$3,000, later increased to US$3,500, to repay her debts and get her to Afghanistan. Over a period of about a fortnight, she made multiple requests through Martin Kunert, the general manager of Trialia Foods, and her godparents, as well as directly to Ronald and, eventually, to Peter.

Her family were not keen to discover that she was still planning on going to Afghanistan. Ronald sent her an email, suggesting that she travel a bit and then come back to Melbourne. He said she would definitely not lose any face, and it would only make people happy if she came back.

Ronald was not keen on giving Jessica a lump sum, fearing that she would just use it to travel on to Afghanistan. But he offered to organise her airfare to Israel (where he and his family were living), to send her a few hundred dollars to help her get to an airport, and to sort out any debts she had once she got to Israel.

Although Jessica indicated a preparedness to go to Israel, she kept demanding that Ronald send her thousands of dollars. When Ronald would not agree to her demands, she enlisted her godparents, Benny and Eva, to lobby on her behalf.

Jessica also called Peter directly, asking for US$3,000. Peter asked her ‘why are you ringing me, suddenly you remember me’. He told Jessica he had bailed her out in every continent and city, and he was not prepared to do it again.

Ronald arranged to transfer US$1,000 to Jessica on 19 July 1999. He emailed Jessica to say that he would arrange her travel separately.

Jessica’s response was typical of her belief that her family should give in to whatever she demanded, and on her terms. She replied that her previous request had been for US$2,640, not $1,000, and ‘no further steps’ could be taken until the issue was fixed.

Ronald replied by email saying he had sent Jessica more than what she needed for the moment, and felt he had been more than generous. He wrote ‘How you got yourself into a situation where you not only have no money but you actually OWE people money is unbelievable.’ Ronald pointed out that Jessica was an adult, and should start ‘acting like one’. He wrote that ‘Nobody is out to get you or hurt you, Jeffrey. Try to do it someone else’s way for a change.’

Peter also emailed Jessica, to say he had instructed Ronald to send the US$1,000, and they would arrange travel to Israel or Melbourne. Peter also wrote:

Jeffrey, stop bombarding everybody by pretending you are a poor shnook. ...
I am fed up with you using all our friends. You are 40 years of age and you make your own decisions. Take it or leave it and stop antagonising everybody.

On the same day, Ronald emailed Jessica, saying the tickets could be arranged to get her to Tel Aviv. Ronald wrote:

Jeffrey, no one in the world cares more for you than me, Mum and Dad. For some reason, you refuse to accept this and you then turn to others looking for support. This support and love that you desperately seek is right in front of you.
There are no tricks. Open your eyes and you will be able to relax and get on with your life.
You asked for help to get out of Dushanbe and I offered it to you. Why don’t you stop writing emails and go and book a ticket?

It was put to Jessica that this was a sign that her family cared for her. She said it was a lie – she didn’t believe her family, and had never believed them.

Not content to accept her family’s proposal, she again wrote to her godparents, trying to get them to send her money:

I AM CONFUSED now, as Ronnie has only sent US$1000 to me.
After all you said about DAD and MUM wanting a new understanding and a normal relationship I get MIXED SIGNALS not goodwill like I have shown. If this is their attitude then I will come home to Melb. with your help and have a normal relationship with you and my friends. All I wanted was decency and honesty if that is not possible then I cannot rethink my thoughts about them.

She asked Benny and Eva to help her get home to ‘rebuild’ her life, by sending her US$2,700 net of bank charges. She told them she intended to look for work outside the family business when she returned to Melbourne. In the two decades since then, she has never looked for another job, preferring to live off her parents’ money.

On 23 July 1999, Jessica emailed Ronald to say she had received the funds he had sent, and paid all her debts. She wrote ‘I believe you and our parents care and I am willing to try to bridge the gap between us.’ She said ‘you mentioned the love and support I seek is within the family, so I want finally to see.’ Subsequent emails confirmed that flights were in place for her to travel to Israel at the end of July 1999, and spend time there with Ronald and his family.

In late July, Jessica sent an email to Martin Kunert, saying:

The deal with the Iranians did not happen, they would not take the chance I offered them. I told them I was willing to work for their government in foreign affairs helping them pursue their national interest, especially against the BLOODY Americans. It got very close with Tehran saying no at the last moment. The Iranian ambassador was in favour. Going to Israel next week will be a test for all of us. I intend to tell the kids about my decision to become a women upon my return to Melb. Ronnie knows my feelings but telling the kids in person is something I believe I must do.

Martin replied that it was not bad news that Jessica would not be working for the Iranians. He also said he thought that Ronald and his wife should be consulted, before Jessica told their children about her intention to become a woman. He said he did not know how the children would react, and that it was for their parents to decide whether they should be told. There is no evidence that Jessica had any prior relationship with Ronald’s children, who were then aged between 8 and 17.

Ronald wrote to Jessica, saying that he was totally shocked by her email to Martin. He told Jessica she needed help in ‘sorting out who you are and what you wish to achieve’. He cancelled Jessica’s travel plans to Israel, because:

I am not here when you come.
Dani can clearly not deal with what you have on your agenda.
Neither can my children and I do not want them to have an impression of you that you are indeed troubled and requiring help. That is not the image I want them to have of their uncle. Further, your ideas are totally against our values and beliefs and they are all too young to try and understand you.

In cross-examination, Ronald said he was mainly shocked about the issue with the Iranians and what Jessica was doing in the Middle East, but he was also concerned about the sex change. Ronald went on to write:

Jeff, this does not mean that I and mum and dad do not support you and love you. If we didn’t care, I would not be writing this to you. ....
We will also arrange a mechanism whereby you will receive automatically a sum of money which will be electronically deposited to your account each week, beginning upon your return. This amount will allow you to satisfy your needs comfortably, each week.
It will be done on the condition that you agree now, that upon your return, you will accept and go to a person for therapy, counselling and support. ...
Dr Hearst in LA told me years ago, that you are not happy to be Jeffrey. He also said to me that no doctor would give such an operation without the patient being of sound mind. Given the severity of the program, they test the patient over a long time to ensure that the patient knows what he is doing and can live with the decision for the rest of his life.
Big issues, and Jeff, you cannot go through this on your own. Moreover, the who episode in Tajik now and your comments about the Iranians, partic. from a Jewish boy, also show that you have major problems that you must deal with.
You are 40 now and we all have ignored this long enough.
…
I await your agreement that you will accept to go to this therapy for an extended period ... The financial support offered is TOTALLY conditional on your acceptance of this.
If you do not agree, then I cannot help any further.

Jessica replied:

I respect your decision about you and your family not being able to handle or understand the change to Jessica. That is okay, as your life and mine will go on, there is no clash on that matter.
In the circumstances it is better I go home from here ... As to therapy or counselling being paid for by the family I do not need that, as I have already made contact with a network back home which specializes in this field. ...
This decision to change to a women was taken by me after a long period of unhappiness, I am contend [sic] with what I am doing, I never expected the family to support it financially, only just respect my choice, and if need be leave me alone to do it in peace, if understanding is not possible.
As I am now 40 I want to enjoy the rest of my life in peace, if it possible with the family support okay if not then that is also okay, that’s life.

She also went on to express strong pro-Muslim, anti-Jewish, views about affairs in the Middle East, views which she must have been aware would offend her family.

On 28 July 1999, Peter sent a fax to Martin Kunert, saying that they had decided, on Jessica’s return, not to re-employ her at the company, but to continue to allow her full use of a company car, with its running and maintenance costs paid by the company.

On 29 July 1999, Ronald sent Jessica a further email saying:

Mum and dad are so devastated by your behaviour and how you badmouthed them in Melbourne. They asked me to tell you not to contact them upon your return to Melbourne.
On the one hand you told everyone that you had to go to Afghanistan to protect the women and now you sing the praises of the Iranians, who clearly and openly oppress their women. Would you have entered Iran and donned the chador, as Jessica?
You do not understand what I meant by therapy. I did not mean hormone therapy, but psychiatric help, which you clearly need, if you are ever going to be really happy.
Why didn’t you ask the Iranians or the other muslims for a ticket to India? Why do you need the family to bail you out, yet again? I saw the pitiful state of your empty flat. This is what you have to done yourself and you need to get out of this rut.
Jeff, you are deluding yourself if you think that sex change will solve any of your problems. Again, you need professional psychiatric help first and this has been offered to you.
Frankly, if you cannot realise this, then the bailing out days of the family are over.

Jessica was asked in cross-examination how she expected her parents to react to her being in central Asia and demanding money. Her answer that she ‘didn’t have any expectations from them,’ is completely inconsistent with the tone of her numerous emails during this period.

Jessica returned to Melbourne on a ticket bought by Ronald, and went and stayed at a friend’s place. Jessica was becoming increasingly frustrated that her family were not doing what she wanted them to do to support her gender transition. Although they would willingly have paid for any other medical treatment that their children or grandchildren required, Peter and Judith were not willing to pay for gender reassignment surgery. Even though there is no evidence that she could not have got a job at that time, after she recovered from her hospital admission, and saved up to pay for gender reassignment surgery herself, Jessica regarded it as her parents’ obligation to pay for the surgery. She said in evidence that it was not her obligation to pay for her own surgery. This belief that her parents must pay for her surgery has become the obsession of her life for the past two decades.

In early August 1999, Peter sent Jessica a letter. The letter, which was undated, set out a proposed arrangement for Jessica to receive $800 per week, on the following conditions:

(a) She have no contact, direct or indirect, with her parents;

(b) She cease denigrating her parents to third parties, or acting in a manner designed to undermine their standing in the Jewish community or with business associates;

(c) She would retain the use of her car, with the upkeep and expenses to be paid as long as the car remained in her personal possession;

(d) Expenses for psychological or psychiatric treatment only would be met; and

(e) No other debts or credit would be provided for.

Judith said they set the conditions in the letter because Jessica was going around and telling people they knew that she was transgender, that she had gone to the Middle East to assist Muslims, and was demanding millions of dollars from her family. Peter and Judith did not want their private affairs talked about, and were no doubt embarrassed by the way Jessica had behaved. Judith said she made the decision to have no further contact with Jessica, as it was the only way she could survive and get on with her life.

Jessica’s evidence as to when she received that letter, and the effect it had on her, was contradictory and confusing. In her affidavit, Jessica said she received the letter on 5 August 1999. She deposed that the letter was ‘traumatic’ and had a ‘major impact’ on her mental health, resulting in her becoming depressed and angry. She deposed that, as a result of receiving the letter, she devised a plan to kill her father with a cross-bow, and then stab herself, at the family’s synagogue.

Jessica’s counsel also opened the case on the basis that the contents of the letter were the trigger for Jessica planning to kill Peter and herself.

However, in her oral evidence, Jessica was adamant that the letter played no part in her plan to kill her father. She insisted that she did not see the letter until she was in hospital, where she was admitted on 14 August 1999 in the circumstances described below. She nevertheless blamed her parents for triggering her psychiatric episode, saying ‘they caused me to be institutionalised by their rejection, their lies, their deception.’ All counsel urged me to reject Jessica’s oral evidence as to when she received the letter.

I am satisfied from all the other evidence that Jessica did in fact receive the letter before the proposed synagogue incident, notwithstanding her oral evidence to the contrary.

Shortly after 5 August, she started telling people she was going to kill herself because her parents would not give her money, including for a sex-change operation.

Jessica’s 40^th birthday was on 6 August 1999. The previous day, Ronald made a file note of a conversation he had with Martin Kunert, in which Martin had told him:

Jeff’s latest blackmail if parents don’t let me have a sex operation by my 41^st birthday, then they’ll have a body on their hands, meaning according to Martin, that Jeffrey would kill himself. ...
Again stressed that Jeffrey is now totally obsessed with this operation.

Ronald made the file note because he said it was a shocking and unusual conversation. He discussed it with his parents.

On 12 August 1999, Martin Kunert wrote to Ronald, saying he had been called by Jessica the day before, and she sounded ‘more disillusioned and down’. Martin informed Ronald that:

What he basically said is that as he will not get the financial support which he is “entitled to” (as it is “all his parents fault”) and that he requires to become a woman and then live in the third world, he has made a decision on what he has to do. He said he will not tell me what it is but:-
·He has it planned
·It will happen very soon
·He will be at peace and not feel any pain anymore
·His parents will not get over it
·This will be his last phone call to me

Initially he told me not to tell anyone but then said I could tell his father which I did.
I know this is his ultimate ultimatum/blackmail. I don’t know what he has planned (although the inference is obvious) or whether he will go through with it or not. ...
He said he did not want you to call him as you ‘don’t control the purse strings’ but I told him I would give you his number anyway. ...
As I said, I don’t know if he will go through with his plan but I do know that your parents are totally at their wits end over this and can’t take much more of it.

Martin suggested that Ronald ring Jessica or her doctor, who may be able to assist.

Jessica also wrote a letter dated 14 August 1999 to her friends, Ian and Carmel, which she described in evidence as her ‘suicide note’. It referred to some enclosed correspondence from her father and Ronald, though she could not recall in the witness box what the enclosures were. She said she was writing the letter so that ‘when the inquest into my death occurs, there is no misunderstanding as to why I reached the decision to take my own life’. She said she could no longer go on an ‘emotional rollercoaster of hope and despair’ where her parents had not helped her solve her sexual identity over the past 20 years, and walked away from her in LA when she told them about it. She also said that:

[N]ow that the annuity of $1.5 million has been withdrawn and I will not get any relocation money of $500,000 making it possible to go back to the third world as a women, and help other women I want you to know the whys and my reasons for taking my life.

In cross-examination, Jessica said she could not remember what the references to the annuity and relocation money were about. There was no evidence that Peter or Ronald had ever offered such sums to Jessica.

The 14 August letter only spoke of ending her own life, not killing her father as well. Clearly, at some earlier stage, she had started to plan on killing Peter as well as herself.

On 13 August 1999, Jessica’s neighbour called Judith, to warn her that Jessica was planning on killing Peter with a cross-bow the next day. Peter and Judith contacted a lawyer friend, and their family doctor, before calling the police.

The police went to Jessica’s flat, where they arrested her and seized a cross-bow. No charges were laid, because Peter asked the police not to do so. Instead, Jessica was admitted to the Alfred Hospital psychiatric unit, as an involuntary patient.

Jessica remained at the Alfred Hospital from 14 August to 17 September 1999. During that time she was under the care of Dr Rob Shields, a psychiatrist. Dr Shields noted a history of ‘less than 1 weeks presentation with escalating homicidal and suicidal ideation involving an elaborate plan to kill his father with a cross-bow and himself with a knife at their Synagogue during the morning service on Saturday 14 September 1999 with associated threats to kill anybody who attempted to stop him.’ He noted that this was precipitated by a letter from Jessica’s father, which Jessica said threatened to cut off her allowance if conditions were not met, including not proceeding with gender reassignment surgery.

Dr Shields recorded that Jessica’s intention was to enact the plan in such a way as to be ‘maximally humiliating’ to Jessica’s family. He noted that Jessica and her family’s relationship was ‘highly conflicted’, with Jessica feeling she had been emotionally rejected by her parents, and unfavourably treated compared with her brother.

Dr Shields’ diagnosis was an adjustment disorder with mixed disturbance of conduct and emotions, in a highly vulnerable and immature individual with gender identity disorder and a mixed personality disorder (anti-social, histrionic, narcissistic, borderline).

While Jessica was in hospital, her parents took out an interim intervention order against her. Even though they had taken out the order for their own safety, Peter and Judith still paid Jessica’s legal costs of the intervention order proceedings. Judith said they did not persist with seeking a final intervention order, because it was frowned up on in their orthodox community to sue another Jew in a secular court.

It is clear that Judith only visited Jessica once during her time in hospital. However, the two women have very different accounts of what occurred during that visit.

Jessica said that during that visit, her mother told her that during Jessica’s childhood, she had discussed Jessica’s cross-dressing with a doctor at the Royal Children’s Hospital, who had suggested that Jessica may have gender dysphoria and should be seen by a doctor. Jessica said she was furious that Judith had not done as the doctor suggested, and asked Dr Shields to escort her mother out of the room.

That version of events was totally rejected by Judith. Judith said that when she entered the hospital room to visit Jessica, Jessica physically attacked her, and Judith had to be escorted out by orderlies. She also said she did not remember speaking to any specialist from the Royal Children’s Hospital when Jessica was a child, except in relation to the back brace she had to wear for scoliosis.

No hospital staff were called to give evidence, and no hospital records were produced by either party which dealt with this incident.

While this incident clearly looms large in both women’s memory and perception of their relationship, it is not necessary for me to resolve the factual conflict for the purposes of this decision.

Whatever took place between Jessica and Judith that day at the hospital, there is no dispute that they did not have any contact for the next 20 years.

Whilst in hospital, Jessica also contacted her godparents about killing herself. On 27 August 1999, she stabbed herself once in the stomach.

After being released from hospital, social workers arranged accommodation for Jessica in a motel in South Yarra. She lived there for a number of years. She continued to received psychiatric care, all of which was paid for by Peter.

In December 1999, Jessica was reviewed by Dr Trudy Kennedy at the Gender Dysphoria Clinic, on referral from the family’s general practitioner, Dr Rabinov. Dr Kennedy’s report noted that ‘Jeffrey’ had stabbed herself twice in the stomach in September, ‘in order to send a message to his parents that they had to listen to him, or they would be faced with a grave.’ Dr Kennedy further noted that:

He states that his communication with his family is on the basis of emotional blackmail and that this is how his father has taught him to communicate. He seems extremely over involved with his family, especially his father, for a man of forty.

Dr Kennedy noted that Jeffrey wanted Peter to pay for his gender reassignment surgery, as ‘retribution and “come back” for twenty years out in the cold.’ Dr Kennedy said this was a worrying reason for surgery.

Jessica said in evidence that she ‘did not recall’ telling Dr Kennedy about sending a message to her parents, communicating through emotional blackmail, or wanting retribution from her family. This was typical of Jessica’s selective memory throughout the hearing, in which she could apparently recall in great detail matters which suited her case, but apparently had no memory of things which were harmful to it.

It is evident from Jessica’s communications with her godparents and others that Jessica did indeed wish to punish her parents for not being the parents she would have wished for, and for not accepting her as a transgender woman.

Around 2000, Jessica began increasingly dressing as a female, wearing makeup, and undergoing hormone treatments to become more feminine. On 27 November 2000, she changed her name by deed poll from Jeffrey Kenneth to Jessica Kimberley. In early 2001, she began facial electrolysis and facial plastic surgery, when she could afford it, to make her appearance more feminine.

Jessica’s credit card debts escalated to $30,000 during this period. She contacted her father’s general manager, Graham, to speak to her father about financial assistance. Peter paid off her credit card debts.

In 2003, Jessica left the South Yarra motel where she had been living since leaving hospital in 1999, and moved into the Evancourt Motel in East Malvern. Two years later, she moved again, to the Chadstone Executive Motel. She also adopted a male cat, Tigga, for companionship.

In September 2010, Peter sold the East St Kilda apartment, in which Jessica had chosen not to live since 1999, even though it had been bought for her.

In late 2013, Jessica was diagnosed with paraprotein anaemia. She required regular appointments with a haematologist and dermatologist for monitoring. Peter paid for all medical treatments in relation to this condition.

In 2014, Peter bought a new car for Jessica to use, which was registered in PSJ’s name. This was the last time Jessica saw Peter.

In March 2016, Jessica sought Peter’s assistance to rent a new home. Jessica said it had taken her seven months to find a ground floor apartment in Armadale which was suitable for herself and Tigga.

She emailed Peter on 1 March 2016, seeking funds for a bond, the first month’s rent, and moving costs. Five days later, she emailed again, saying she had been approved to rent an apartment in Denbeigh Rd, Armadale, and intended to come into Peter’s office the next morning to do the paperwork to secure the property. She said she had 24 hours to complete the paperwork, before the property would be released for renting again. She wrote:

Please be patient with me tomorrow as I really want this it fulfils a long-term goal to live in Armadale. Being with uncle Morrie in Armadale were happy times for me.
The apartment meets all my requirements. ... Dad and illeen [sic] thank you for your support during this and when I get settled I would like to show you both the apartment.
My life is finally getting good see you tomorrow.

Jessica gave evidence that when she went to Peter’s office the next day, Eileen, the general manager at PSJ, said her father was no longer prepared to provide financial assistance. Jessica said she spoke to her father on the phone, and he told her ‘he was not the same man he used to be and [she] had to wait for Ronnie to return from overseas’. She said she was ‘heartbroken’ at losing the apartment.

Eileen Li, the general manager of PSJ, gave evidence. She did not think that Jessica came to their office on the suggested day. She had no memory of any conversation of the type alleged by Jessica. Ms Li searched the PSJ email system for any other correspondence with Jessica after 6 March 2016. Ms Li could not locate anything further until 30 March 2016, when she emailed Jessica to say that the requested funds to pay for the costs involved in leasing and moving into an apartment in the near future had been agreed, being $6,000. A cheque for $6,000 was posted to Jessica’s PO Box that day.

Jessica emailed Peter on 4 April 2016, saying she had received the cheque for $6,000, and would bank it that day. The bank statement for the relevant Joss company showed the money was paid out of its account on 5 April 2016. Jessica said nothing in her email about having received the money ‘too late’, or having missed out on the apartment (which one might have expected her to say, had her evidence in court been accurate).

Asked what she did with the $6,000, which Peter had given her to help her move out of the motel and into the apartment, she said she spent it on paying bills and reducing her credit card debts.

It is not clear what ultimately happened with the original apartment that Jessica said she had wanted to rent. However, it is clear that even though Peter had provided her with the money which would have enabled her to do so, Jessica chose not to look for any other apartment. Instead she chose to remain at the Chadstone Executive Motel, where she still lives with Tigga. She conceded that she could rent an apartment in Malvern or Armadale for less money than she pays to stay at the motel. When asked why she had not done so, she said ‘I did try it and my dad abandoned me at the last minute’. She said she was not willing to try again because she was emotionally ‘gutted’ after what her father did. This was consistent with Jessica’s evidence throughout the trial, in which she held her family responsible for everything bad that has ever happened in her life.

It is clear from her own evidence that the real reason she has chosen to live for all those years at the motel is because Paul, Ben and Gary, the people who run the motel, care for her and are like family to her.

In January 2017, Jessica sought legal advice about taking legal action against her parents, because she believed that her weekly allowance did not enable her to build up assets or have gender reassignment surgery.

She wrote to Ronald on 17 January 2017, saying she was tired of the current state of affairs, and had been patient long enough. She wanted $6.5 million to be transferred to her to buy a townhouse, have gender reassignment surgery, and set up an income source. She also wanted her car to be transferred to her name from PSJ. She described the $6.5 million as an advance on her inheritance, ‘not a replacement.’ The letter concluded with the threat that ‘the alternative is a contested will hearing in court’.

A further email from Jessica on 23 January 2017 said her lawyer was willing to put her proposed legal arrangements in place, at Peter’s expense, and that her lawyer would be willing to help if court action was needed. But she said court action ‘would be a bad choice for everyone concerned as all matters come out and is public knowledge’. She said it was now up to Ronald to make Peter ‘see some sense’, and she expected an answer shortly.

Ronald replied by email, saying:

I did not respond earlier as I was surprised and upset by your tone and threat of legal action.
You have an expectation for a big payout and I do not know why you feel it is owed to you.
I have never received such a payout.
I told you when I come to Melbourne that I would raise your issues with our parents.

Jessica replied:

The figure of 6.5 million is based on what dad gave you to purchase Trialia foods all those years ago the guarantees to the suppliers and the lost income that would have been generated if invested.
This was verified by Jackie Smith and Graham Whitside. As to the morality of it I was also his child and he and mum ignored their responsibilities at the time.
A fixed income as it is now is no substitute for what I wanted then and now.
As to my tone you knew how I feel. It has been long enough I have patiently waited for a change of heart by them unfortunately it has not occurred.
Jeffery apel Michael Kraus agree with me as does graham.
I just want to get on with my life be settled financially and have my own home.
I am tired of hotels and motels and renting.

The following day, Jessica sent a further email saying any further discussions about the $6.5 million would be recorded, as requested by her legal advisors, and that she would prefer to settle, rather than litigate, the dispute. She also said that they did not need to have a personal relationship once those issues were dealt with.

On 6 March 2017, Jessica emailed Peter to say Ronald was incapable of dealing with the financial arrangements, had been dishonest and lacking in sincerity. She wanted a meeting to discuss her financial situation.

On 8 March 2017, Jessica emailed Peter asking for an increase in her allowance to $1,600 per week. It had been regularly increased since its commencement in mid-1999, whenever Jessica had asked for an increase.

Judith responded to Jessica’s 6 March email, saying that Ronald was acting for his parents, and asking Jessica to stop harassing them. She said there would be no meeting, and if Jessica continued to harass and threaten legal action, her weekly support would be stopped.

Jessica’s parents granted the requested increase in her allowance. Ever since then, Jessica has been receiving $1,600 per week, which is approximately $83,200 per annum, tax free. This is in addition to having paid for psychiatric and non-gender reassignment medical expenses, and credit card bills, and providing a car (with its upkeep and registration paid for).

When Peter died on 22 March 2017, neither Judith nor Ronald contacted Jessica to tell her the news. They said they did not do so because there was no relationship between Peter and Jessica. Instead, she learned of his death through a family friend. Jessica attended the funeral, but neither side sought to interact with the other.

Judith arranged for Peter’s monument to refer to Jessica as Peter’s son, ‘Jeffrey’. No doubt that continued rejection by her mother would have added to Jessica’s pain.

In November 2018, Jessica began seeing a psychiatrist, Dr Carolyn Ward. Dr Ward saw her four times between November 2018 and June 2019, and provided a report dated 2 August 2019 for this proceeding. Dr Ward’s report was based on Jessica’s self-reporting at appointments, a four and a half page autobiography written by Jessica, and information from Jessica’s general practitioner. Dr Ward diagnosed Jessica as having gender dysphoria.

Jessica described her current typical day as ‘looking after Tigga going out for lunch, relaxing at home and watching television’. She said that she would like to exercise her mind, and not ‘sit around and dawdle’, but she is not currently capable of work because her most pressing need at the moment is to feel good about herself. She said that once she has gender reassignment surgery, she would be able to work, if an employer was willing take her on.

She told the defence’s expert psychiatrist, Associate Professor Doherty, in August 2019, that she had the capacity to work, but had ‘no intention of doing so’ until she underwent gender reassignment surgery.

Jessica’s life has essentially been on hold for 20 years, as she stubbornly waits for her parents to pay for surgery that she would have been capable of saving for, and paying for, herself at various times during that period.

She wrote in her account for Dr Ward that after she was unable to rent the Armadale apartment, she went into her ‘shelter’ and waited for the day when her father died and she could get her share of his money.

Associate Professor Doherty also reviewed Jessica and provided a report dated 28 August 2019. He did not consider her to have a personality disorder, or to have had any psychotic deterioration since the events of 1999. He agreed with Dr Ward that her only current psychological condition was gender dysphoria. He does not consider her to be at risk of suicide, and says there has been no risk or depressive disorder since 1999. Associate Professor Doherty went as far as to say ‘to suggest that she will be suicidal if her legal proceeding fails, is manipulative rather than a reflection of suicidality due to an aggravation or worsening of a psychiatric condition.’ The following opinions of Associate Professor Doherty were not challenged in cross-examination:

The plaintiff dislikes, if not hates, her mother and had an ambivalent relationship with her father. The plaintiff is determined that the family pay for her gender reassignment surgery, as a retribution to what she perceived as the bigotry, isolation and ostracization within the family. The plaintiff has undertaken … no saving of funds, or attempts to use previous employment as means to save the funds for the procedure. Psychologically, having the family pay for the surgery, will be payback for what she perceives their poor treatment of her. Thus, her steadfast determination to not move forward, until the surgical procedure is funded by the family.

Against that background of Jessica’s personal circumstances and relationship with her family, I turn to consider the legal requirements imposed by the Act.

Did Peter have a moral duty to provide for Jessica?

As is patently clear from the above discussion, the relationship between Jessica and her family has been dysfunctional for decades.

The Act has not, for many years, contained specific ‘disentitling conduct’ provisions. However, Jessica’s conduct is nevertheless a relevant consideration in determining the nature and extent of any moral duty owed to her by Peter.

I do not doubt that Jessica genuinely believes that her gender dysphoria is the root cause of the breakdown in the relationship between herself and her parents. The fact that, even now, her family do not really understand and accept that she identifies as a woman, has no doubt been (and continues to be) extremely hurtful to her. But the reality is far more complicated than that, and Jessica has contributed substantially to the dysfunction and the breakdown of the relationship by her conduct over many decades.

There is no dispute that Jessica was a troubled child, who was prone to explosions of violent anger (including assaulting a teacher).

Even after she was working in well paid jobs, she still expected her parents to provide for her financially. Over many years, they furnished apartments for her in Sydney, Los Angeles and Melbourne, and cleared her credit card debts. They paid her legal costs. She stole shares from Peter to buy a luxury car, at a time when she was working.

Jessica’s family did not discover that she was transgender until she was living in the USA. It came as a complete shock to them. They may not have understood and embraced that fact, as she would have wished them to, but they continued to support her financially after they discovered it. They did not simply cut her off.

When she returned to Melbourne after her time in the USA, she was given a job in one of the family businesses. She started receiving a regular allowance in November 1998, which has been increased over the years, whenever Jessica asked for it.

By the late 1990s, Jessica had started making increased demands for substantial amounts of money from her father, clearly viewing it as her entitlement and birthright to receive millions of dollars.

She announced in a letter dated 2 June 1999 that she did not want any contact with her parents in the future, and that ‘this ends a family relationship. Dad was never the father I needed. Mum was a coward. … My birthright is fair and my offer is reasonable.’ This letter preceded the 6 August 1999 letter from Peter, which she said was so devastating to her because it said that her parents wanted no further contact with her. Contrary to the picture she tried to paint to the court, she was the one who initiated the ‘divorce’ from her parents.

Jessica’s 2 June letter was sent shortly before she travelled to Tajikistan, hoping to join the Northern Alliance. She was well aware that her conduct in going to the Middle East would be hurtful to her parents and their beliefs, just as she had been aware that going to live in Germany would be hurtful to her father. She took insufficient funds to support herself whilst in the Middle East and, as had happened before, demanded that her family rescue her financially (which they did).

She seriously proposed to kill Peter in August 1999. She acquired a cross-bow for that very purpose. She was only thwarted in her plans to do so by the fact that Peter learned of her plans and contacted the police. The fact that she may have intended to kill herself too does not detract from the extreme seriousness of her conduct.

Well aware that her parents were very private and conservative people, she frequently and deliberately discussed private family matters with their friends, acquaintances, staff and members of their synagogue. She wanted to embarrass her family, publicly and privately, to punish them for not accepting that she was transgender, and also to try to force them into paying what she regarded as her entitlement.

Notwithstanding Jessica’s behaviour, including her plans to kill him, Peter continued to support her financially. The weekly allowance that he provided from 1999 onwards was generous enough that she did not need to go and look for work. If she ran up credit card debts, or needed additional financial help, he provided it. The only thing Peter was not prepared to pay for was the gender reassignment surgery which Jessica wanted. So even though she still had reasonable earning capacity after her discharge from hospital in 1999, Jessica chose not to seek employment for more than 20 years. By continuing to support Jessica for all those years, Peter allowed her to become financially dependent on him, and to lose much, if not all, of her capacity for employment. That is the most important consideration in my conclusion that Peter did owe a moral duty towards Jessica, notwithstanding her attitude and behaviour over the years.

Courts have long recognised that family disharmony or dysfunction, and a parent’s disappointment in a child, are commonplace in family relationships; such matters are only one of the factors to be considered by the court under the Act. Accordingly, I do not accept the defence submission that any moral duty that Peter had to provide for Jessica was nullified by their estrangement, as well as by her character and conduct towards Peter and the rest of her family. However, those factors have undoubtedly reduced the extent of Peter’s moral duty, notwithstanding the size of his estate.

Factors to consider

The court must have regard to Peter’s will, any evidence of his reason for making the dispositions in the will, and any other evidence of his intentions in relation to providing for Jessica.[11]
[11]Section 91A(1).

The court may have regard to a list of factors, including Jessica and Peter’s relationship; the size of the estate; Jessica’s age, financial resources and needs; what was provided to Jessica prior to Peter’s death; whether she was being supported by Peter prior to his death; and Jessica’s character and conduct.[12]
[12]Section 91A(2),

I will begin with a consideration of the matters to which the court must have regard under s 91A(1).

The deceased’s will (s 91A(1)(a))

As mentioned earlier, the will made no provision for Ronald or Jessica, unless Judith pre-deceased Peter.

If Judith had died first, Ronald and a lawyer were to be executors and trustees of the will. Ronald would have received certain specific shares, and the remainder of the estate would have been apportioned between Ronald, Jessica, and Ronald’s children as follows:

(a) $5 million to each grandchild;

(b) $3 million for the Jeffrey Joss Testamentary Trust for the benefit of Ronald and his children;

(c) $1 million to provide for a life annuity for Jessica; and

(d) Any remainder to be apportioned between each grandchild and held in a separate trust fund.

So, Jessica was not completely excluded from Peter’s consideration under the will. But neither she nor Ronald nor any of the grandchildren would inherit anything if Judith survived Peter.

Although in an earlier affidavit Jessica made some unsubstantiated assertions about Peter’s testamentary capacity, they were not pursued at trial. Apart from the fact that a proceeding such as this is not the appropriate forum in which to challenge capacity, there is simply no evidence before the court on which Peter’s capacity at the time of making his will should be questioned. Furthermore, there is nothing about a man leaving his estate to his surviving spouse of more than 50 years that raises concerns about testamentary capacity.

The deceased’s reasons for making the disposition in the will (s 91A(1)(b))

In November 2007, almost five years before he made his final will, Peter wrote a letter addressed to Jessica, which was to be given to her after his death. The letter was duly given to her on 20 October 2017. In it, Peter stated:

I believe you have been adequately provided for but I suppose that you will expect more. The purpose of this letter is to tell you why I do not believe that you deserve a bigger amount from my Will.

The letter went on to describe a large number of incidents during Jessica’s lifetime, from Peter’s perspective.[13] They included the following:
[13]Some of the incidents raised in the letter were not put to Jessica in cross-examination, so I do not know what she would have said in answer to them. I have not referred, or had regard, to matters not put to Jessica.

(a) Jessica left home on multiple occasions, slamming the door and saying she would not be coming home anymore;

(b) Jessica left home to move to Germany. Peter was unable to contact her for 6 months, before being told she was in a Palestinian terrorist training camp in Bavaria;

(c) Jessica requested a ticket to return home from Germany after she was dismissed from her job. On receiving the ticket, Jessica called to complain that it was an economy ticket; she demanded it be a business or first class ticket;

(d) Jessica moved to the USA and joined the army, during which time Peter was unable to contact her. He travelled to the USA to find her. Peter says it was at this time that Jessica told him she intended to have a sex change operation;

(e) Jessica brought a non-Jewish woman home from the USA and intended to marry her without telling her family. Peter was told by a neighbour that Jessica and the woman were to be married that Sunday. Jessica and her wife moved back to the USA, shortly after which they divorced;

(f) On returning to Melbourne, Peter bought Jessica an apartment. Jessica sold all the furniture in the apartment and left the keys with her godfather;

(g) Jessica planned to go to Tajikistan to join a Palestinian group which had contact with a terrorist group. Jessica boasted and told friends she was joining Al Qaeda;

(h) Peter received an email requesting US$3,000 immediately. He refused. Ronald sent US$1,000 from Israel. Jessica complained because the money took two weeks to arrive;

(i) Peter was called by a taxi driver saying Jessica had bought a bow and arrow and was planning on murdering him the next day at a bar mitzvah at their synagogue. Peter and Judith took out a restraining order against Jessica; and

(j) Afterwards, Jessica became friendly towards him again because she needed money.

As the earlier summary of events establishes, Peter’s letter was substantially accurate in its description of Jessica’s behaviour towards him and the family, and is supported by other evidence. Given that Peter had continued to support Jessica for decades, notwithstanding her behaviour towards him and other family members, it is understandable that he might have believed that he had done enough to discharge his obligations towards her.

I turn to consider some of the factors to which the court may have regard under s 91A(2).

The relationship between Peter and Jessica (s 91A(2)(a))

The dysfunctional nature of the relationship, and the lengthy period of estrangement between Peter and Jessica prior to his death, has been considered earlier, and is not repeated here.

The deceased’s obligations and responsibilities (s 91A(2)(b))

I have already discussed this matter in the context of considering Peter’s moral duty to Jessica.

The defence did not argue that any obligation or responsibility that Peter had towards Jessica was reduced by virtue of his obligations towards Judith or Ronald, so it is not necessary to consider this matter further.

The size and nature of the estate (s 91A(2)(c))

As previously mentioned, by the end of the trial it was agreed that the net value of the estate at that time was $12.4 million.

In her affidavit dated 5 June 2018, Jessica disputed the size of the estate. She asserted that Peter’s estate should be significantly larger. In support of that claim, Jessica produced a magazine article from 2002, in which a journalist estimated Peter’s worth at $100 million.

Whether or not Peter was in fact worth $100 million in 2002 is not known to the court. Even if he had been, his assets may have been spent, lost, transferred or diminished in value in the 15 years between the article and his death. How Peter disposed of his assets during his lifetime is not a matter for this court, other than in considering matters under s 91A(2)(h).[14]
[14]Jessica did not seek to adduce evidence as to any payments or distributions made by Peter to family members during his lifetime.

Beyond that bald assertion in her affidavit, Jessica made no attempt to challenge the evidence as to the size of the estate.

Financial resources, earning capacity and financial needs (s 91A(2)(d))

As previously discussed, Jessica worked in a series of well-paid jobs between graduating from university in 1981 and mid-1999. For much of her adult life, she appears to have lived beyond her income, expecting her parents to cover any shortfall.

She has no superannuation, savings, or substantial assets.

Jessica has no dependents (except for an elderly cat). Her last intimate relationship was in the mid-1990s, and there was no suggestion that she was likely to acquire any dependents in the future.

It is reasonable to assume that there would have been a period in the immediate aftermath of her August 1999 hospitalisation when she would have been unable to work. But there is no evidence that she has been unable to work in the two decades since then, for medical or psychological reasons. On the contrary, the evidence clearly indicates that she chose not to work since 1999, waiting for her parents to give in to her demands to pay for her gender reassignment surgery.

Jessica is now almost 61 years old. She believes that she will be able to obtain employment once she has had the surgery. However, it seems doubtful whether she would be able to obtain work in areas of commerce in which she previously worked, such as finance and stockbroking, after such a long absence from the workforce, and given her age.

She has no physical or psychological ailments that would prevent her from seeking employment in hospitality or some other non-skilled industry. But she may face problems there too, on account of her age and absence from the workforce for so long.

If Jessica was able to secure employment after her surgery, it would be unlikely to be highly paid.

From late 1998 until August 1999, Jessica received a monthly allowance. In August 1999, the amount was increased and converted to a weekly allowance. The amount of the allowance has been increased whenever Jessica has asked for an increase. Jessica’s allowance has been paid by companies in the Joss group.

At the time of Peter’s death, Jessica’s allowance was $1,600 net per week. Since Peter’s death, Judith and Ronald have arranged for the continued payment of that allowance. Even though Judith and Ronald have indicated an intention to continue paying in the future, the allowance is an entirely discretionary payment, not a legal entitlement.

As far as Jessica’s needs are concerned, she conceded that her current weekly allowance is sufficient for her to live on (in fact, it is slightly more than her actual living expenses), and was an appropriate amount to continue (with CPI adjustments).

Judith earns income from Joss companies in which she owns shares, and that income is more than sufficient to meet her needs. Judith also owns her own home. Otherwise, no evidence was led by either side as to the specific financial resources, earning capacity or financial needs of Judith or Ronald. However, the defence did not suggest that Jessica’s claim should be reduced on account of the financial needs of any beneficiary or other eligible person, so it is not necessary to consider this matter further.

Any relevant physical, mental, or intellectual disability (s 91A(2)(e))

Apart from the period of one month in 1999, when Jessica was an involuntary patient at the Alfred Hospital, Jessica has no psychiatric history.

Jessica’s only current mental health diagnosis is gender dysphoria. The evidence is that it is typical for people with gender dysphoria to wish to move on and get rid of the anatomy with which they do not identify. That is a relevant consideration in my deciding to order some provision for her reassignment surgery.

There is no other eligible person or beneficiary who suffers from any relevant disability.

Jessica’s age (s 91A(2)(f))

Jessica is now almost 61 years old.

Jessica’s contributions (s 91A(2)(g))

Although Jessica had some periods of working for family businesses, she was paid a salary for that work. There is no evidence that she made any contribution to building up Peter’s estate, or towards the welfare of Peter or other family members.

Any benefits previously given by the deceased (s 91A(2)(h))

As discussed earlier, in addition to her generous allowance, the benefits previously provided by Peter to Jessica include the following:

(a) Furniture for homes in Sydney, Los Angeles and Melbourne;

(b) Cash on several occasions when Jessica was living overseas;

(b) An apartment which was bought in 1991, and later sold in 2010 after Jessica abandoned it;

(c) Payment of Jessica’s legal costs in Australia and the USA, in relation to her divorce and immigration issues, and the intervention order application;

(d) Payment of Jessica’s psychiatric bills since the 1999 hospitalisation;

(e) Payment of medical expenses in relation to Jessica’s paraprotein anaemia;

(f) Payment of credit card debts over the years, in excess of $30,000;

(g) The use of fully maintained company cars; and

(h) Payment of the sum of $6,000 which Jessica was given in 2016 for a bond on a rental property, but which she ultimately used for other purposes.

A longstanding source of grievance to Jessica is her belief that Peter provided significantly more financial support to Ronald than he provided to her. As the correspondence discussed earlier indicates, she has been fixated by a belief that Peter gave Ronald $6.5 million for him to buy Trialia Foods. In her affidavit dated 5 June 2018, Jessica said that Peter and her father’s former accountant, Gary Andrews, had both told her that Peter had given Ronald $6.5 million to buy Trialia Foods. No evidence was led by her to substantiate that assertion.

Judith said that she and Peter had bought Trialia Foods as an investment, and the business was operated by Ronald. The costs of that purchase, and what benefits Ronald received from running the business, were not the subject of evidence.

Ronald is not a beneficiary under the will either. Even if Peter had given Ronald money (in his lifetime, or in his will), the cases make it clear that there is no requirement that parents treat their children equally.[15]
[15]See for example, Edward Jones (A pseudonym) v Constance Smith (A pseudonym) [2016] VSC 178, [38] (Ferguson J, as she then was).

Prior maintenance by the deceased (s 91A(2)(i))

Jessica has been wholly maintained by Peter (and, after Peter’s death, by Judith) since at least August 1999. She had received a smaller, monthly allowance between November 1998 and August 1999.

The amount was initially $800 per week. At the time of Peter’s death, it was $1,600 per week tax free. Jessica conceded that every time she asked for an increase in her allowance, Peter gave it to her.

The liability of any other person to maintain Jessica (s 91A(2)(j))

There is no other person with a liability to maintain Jessica.

It is possible that Jessica may be a beneficiary under three discretionary family trusts, but it is unclear on the evidence. In any event, she has never received a distribution from any of those trusts, and has no entitlement to receive any distribution.

Jessica’s allowance has not been paid as a trust distribution; rather, it has been paid by means of a reduction of her parents’ loan accounts with relevant Joss companies.

Character and conduct considerations (s 91A(2)(k))

These matters have already been considered, and it is not necessary to repeat what I have previously said.

The effects a family provision order would have on other beneficiaries (s 91A(2)(l))

The only beneficiary is Judith, who would retain the bulk of the $12.4 million estate after payment of any family provision order.

Judith lives comfortably on income provided by Joss companies. It was not suggested that making a family provision order would adversely affect Judith’s standard of living or ability to support herself.

Determining an amount

In determining the amount of provision to be made, the court must take into account:

(a) The degree to which, at the time of his death, Peter had a moral duty to provide for Jessica;

(b) The degree to which the distribution of the estate fails to make adequate provision for the proper maintenance and support of Jessica; and

(c) The degree to which Jessica is not capable, by reasonable means, of providing adequately for her own proper maintenance and support.[16]

[16]Section 91(4).

As previously discussed, the will makes no provision for Jessica, and, given her age and lack of employment for 20 years, she has little capacity to provide adequately for her own proper maintenance and support.

In her affidavit dated 5 June 2018, Jessica said that her immediate needs were:

(a) A secure income, not dependent on her mother’s discretion;

(b) Funds for her gender reassignment surgery, recovery, and associated expenses;

(c) Secure and appropriate accommodation; and

(d) A capital sum for future contingencies.

Stated as matters of general principle, those do not seem objectionable. But there is considerable scope for disagreement as to how much is required to satisfy those needs.

On 23 August 2019, shortly before the start of the trial, Judith made an open offer to settle the proceeding by the payment of just over $2.5 million, on the following terms:

(a) The purchase of a guaranteed annuity from Challenger Limited, for the cost of approximately $2.4 million, to provide an annual net income to Jessica of $83,000, with annual increases for CPI;

(b) The car that Jessica currently uses be transferred to her at no cost;

(c) The sum of $100,000 be held in a trust account held by Jessica’s solicitors, for use in paying medical expenses associated with her gender reassignment surgery;

(d) The sum of $2,500 be paid to a real estate advisor of Jessica’s choosing, to assist with locating and renting a new residence;

(e) The sum of $20,000 as a one-off cash payment to Jessica; and

(f) Payment of Jessica’s legal fees in this proceeding, up to $80,000.

Judith’s offer was rejected.

At the start of the trial, Jessica wanted a lump sum payment of $5.56 million, plus costs, from the estate. That was broken down into three broad categories:

(a) $2.5 million to purchase a freehold property in Malvern or Armadale;

(b) $2.4 million to be invested by Jessica to provide an income stream to match her current weekly allowance, to be indexed annually; and

(c) $660,000 as a capital sum for other expenses, including gender reassignment surgery.

Jessica provided a schedule which outlined the specific sums she was seeking in relation to her gender reassignment surgery, housing, car, existing debts, and ongoing daily living costs. Her claim at the start of the trial was an unreasonable ambit claim, reflective of her strong sense of entitlement.

By the end of the trial, she had lowered her expectations to an amount somewhere between $3.7 million and $5.56 million.

Income

The parties agreed that a capital sum of around $2.4 million would be needed to provide an income stream equivalent to her current allowance, together with CPI increases. That could be drawn down each year until she reaches the age of 86.

Judith has at all times been prepared to keep paying Jessica’s current allowance on an informal basis. As part of the open offer, she was prepared to pay $2.4 million to purchase an annuity.

The only dispute in relation to this item is as to whether the court should order the purchase of an annuity, or award Jessica a lump sum for her to invest herself. Judith submitted that I should order the purchase of an annuity from a life insurance company or financial institution, so as to provide Jessica with a steady income stream. Jessica wants the $2.4 million as a capital sum, to allow her to invest as she chooses.

I accept that financial autonomy is important to Jessica. None of the medical experts had any concerns about Jessica’s cognitive functions, or her ability to manage money or a capital sum.

In the circumstances, I am satisfied that it is appropriate to award a lump sum of $2.4 million to Jessica, for her to invest as she chooses. She can choose to use some or all of the money to purchase a guaranteed income stream or not.

Paying it as a lump sum will also give her some freedom of choice, if she wishes to spend more on other items than I propose to allow her. It also means she could retain some liquid assets, in case she wanted to go into a retirement facility in the future.

Housing

Initially, Jessica wanted $2.5 million to buy a freehold house in Malvern or Armadale. Jessica tendered a bundle of property advertisements for houses in those suburbs, which had sold in the previous 12 months. She said they were the type of property she wanted. The properties identified could all fairly be described as ‘upmarket’, were in impeccable condition, and had multiple bedrooms and bathrooms, car-parking and gardens. The two to three bedroom properties ranged in price from around $1.9 million to $2.4 million.

For associated housing costs, Jessica wanted a total amount of $377,500, comprised as follows:

(a) $212,500 for stamp duty and purchase costs based on a $2.5 million house;

(b) $100,000 to buy furniture. She said that the amount was reasonable because ‘when you come from a place where you have nothing and no one’s given you anything and you’re living in a motel room, and you walk into your house and you see things that are really nice, it makes you feel better.’ Given that her family have in fact supported her financially for decades, including furnishing previous properties for her, and she has chosen to live for years in a motel room (even though it would have been cheaper to rent a house or apartment), this comment shows just how distorted her perception of reality is;

(c) $50,000 for renovations to whatever property she may buy, on the basis ‘you can never find a house that perfectly fits your requirements’;

(d) $5,000 for security, including alarms and cameras, and $10,000 for installing solar panels;

(e) Money for her ongoing house expenses, namely: $3,000 p.a. for rates; $2,000 p.a. for house insurance; $5,000 p.a. for house and garden maintenance; and $4,800 p.a. for utilities.

Having regard to the extent of Peter’s moral duty, I regard Jessica’s initial property claims as totally excessive and unreasonable, even allowing for the size of Peter’s estate.

By closing submissions, Jessica’s submissions said that if the court regarded those claims as excessive, then a minimum amount of $1 million should be awarded for the purchase of freehold property, and at least $100,000 for other costs related to purchasing and furnishing a property.

It is understandable that a person might prefer the security of owning, rather than renting, accommodation. But Jessica’s desire to own rather than rent is at least in part an emotional decision, which is tied in with her feelings about her family. She totally rejected the suggestion that she could rent a suitable property, saying that, if she did so, she would not get the respect, dignity and security she deserved after being rejected by her family for all these years because she wanted to be a female. Getting her family to pay for freehold property seems to be an inextricable part of the payback she is seeking from them.

As mentioned earlier, after she returned from the USA, Peter bought Jessica an apartment in East St Kilda. She simply walked away from it when she chose to go to the Middle East, without telling her parents, leaving the apartment to deteriorate due to water damage. Her demand for another freehold property from Peter’s estate also needs to be assessed against that background.

Jessica’s own psychiatrist, Dr Ward, agreed that a safe and secure environment could be achieved through means other than home ownership.

There is no dispute that Jessica could afford to rent a suitable flat or house on her income from the allowance. She currently spends $570 per week (around 35% of her income) for her room at the motel.

I propose to allow an amount of $600,000 to be used in connection with Jessica’s accommodation needs. She could purchase a modest apartment outright for that sum. If she wished to buy a more expensive apartment, she could use that sum towards a substantial deposit, stamp duty and transfer costs. She could then pay the balance of the purchase price in one of two ways:

(a) By using some of her $2.4 million capital sum, so as to buy the property outright. Although that would reduce her income from the capital sum, she would be saving the 35% of her current expenses that she spend on rent, so would not need to generate the current level of income; or

(b) By generating an income by keeping the capital sum intact, and taking out a mortgage, which she could service using the $570 per week which she currently pays for rent.

If she decided to remain living with her friends at the motel, or chose to rent in the private rental market, then she would have an additional $600,000 to spend as she wished.

Jessica’s parents have furnished at least three previous homes for her over the years; she has either sold or abandoned all of that furniture. Peter’s moral duty does not extend to completely furnishing another home to a luxurious standard. I propose to allow her $25,000 to enable her to furnish her new home modestly. If she wishes to spend more than that, she can choose to spend money from the miscellaneous sum that I propose to order.

Gender reassignment surgery

Nobody disputed that Jessica’s mental health would benefit from having the gender reassignment surgery, but her claim in relation to this item was quite unreasonable in several respects.

Jessica initially asked for $200,000 for her gender reassignment surgery. That figure included $149,240 for specific costs, rounded up by counsel to include more than $50,000 for any unspecified ‘contingencies’. Even the apparently specific costs contained many unproven or unreasonable amounts.

There is no evidence to suggest that Jessica could not have the surgery competently performed in Melbourne. But Jessica’s preferred surgeon, Associate Professor Peter Haertsch, is based in Sydney. He provided an updated estimate of costs in August 2019, showing a total cost of $93,300, which included all medical and hospital expenses for what will be several different types of surgery performed over a three month period.

As well as the specific items listed in the Haertsch quote, Jessica initially claimed an additional $55,940 for:

(a) Three post-surgery consultations, totalling $900;

(b) $400 for an endocrinologist’s consultation;

(c) $400 for a second psychiatrist’s opinion;

(d) $30,240 for nursing care (3 months post-surgery at $30 an hour, 12 hours per day);

(e) $18,000 for a hotel in Sydney (3 months post-surgery at $200 per night);

(f) $1,000 for return airfares and travel; and

(g) $5,000 for cattery boarding fees (3 months).

No evidence was provided to substantiate any of those additional costs.

I accept Jessica’s evidence that Associate Professor Haertsch advised that it would be better if she remained in Sydney between the different operations, rather than flying back and forth between cities, due to concerns about internal bleeding.

It is reasonable for the estate to pay the necessary costs of and incidental to Jessica’s surgery. But just because she has chosen a Sydney surgeon, rather than a Melbourne surgeon, it is not reasonable for her to expect the estate to pay all the travel and related costs arising from her choice to spend three months living in a different city.

In any event, the accommodation claim seems unreasonable. Jessica could presumably rent a short term apartment for three months in Sydney for considerably less than $18,000.

The amount claimed for nursing costs is also unreasonable. There is no evidence to support her claim that she will require 12 hours of nursing per day, every day, for three months. Asked if she had raised her possible nursing requirements with Associate Professor Haertsch, Jessica said ‘he couldn’t give me a definite answer because he said recovery time varies for every person’. The most he could say is that she would need ‘some nursing’. Twelve hours per day of nursing care for three months is an extraordinary claim, given that some of the operations, such as the nose reduction surgery, would not significantly impact on Jessica’s capacity to look after herself. Whilst I accept that she may require some home nursing care, particularly after the major reassignment surgery, there is no evidence before me to suggest that she would require anything like the amount she is claiming.

By closing submissions, Jessica had dropped the claim for $50,000 for unspecified ‘contingencies’ in relation to the surgery, but was still seeking almost $150,000, including the large sums for nursing and accommodation.

I propose to allow an amount of $100,000 for the costs of and incidental to her gender reassignment surgery. That is sufficient to cover all medical (including pre- and post-operative costs) and hospital costs, leaving $5,000 for nursing costs. If Jessica chooses to have the operation performed in Sydney, she can use some of the miscellaneous amount which I am going to allow, in order to cover the additional costs thereby incurred.

Miscellaneous

Jessica continues to drive a vehicle which is owned and maintained by PSJ. She currently pays for her own petrol. Judith offered to have her present car transferred to her as part of the open offer.

Jessica wants a new car. She would like a Toyota SL hybrid. Initially, she sought $60,000 for the purchase of a new car, and about $2,500 for on-road costs. She also wanted $2,800 p.a. for car insurance, maintenance, and registration, $2,600 p.a. for petrol. By closing submissions, she had reduced her car-related claim to $30,000.

Jessica also seeks $13,049 to discharge her existing credit card debts.

I propose to allow a further sum of $100,000 to cover all miscellaneous items. That is more than sufficient to cover the reasonable costs of a new car and its running costs, and paying off the credit card debts.

Depending on whether she chooses to spend in the order of $30,000 or $60,000 on a new car, it will give Jessica a surplus (after car and credit card payments) of between around $25,000 and $57,000 to use for unforeseen contingencies, or to apply towards the cost of items I have not allowed (such as more upmarket furniture, or travel-related expenses connected with having surgery in Sydney).

Conclusion

Having regard to the matters which I am required to consider, I have determined that the sum of $3.225 million would constitute adequate provision for Jessica’s proper maintenance and support.

I will hear from the parties in relation to the form of order and costs.

[2020] VSC 424

4 August 2020