Palmer v Dolman - [2005] NSWCA 361

NEW SOUTH WALES COURT OF APPEAL

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

FILE NUMBER(S):
40456/05
40564/05

HEARING DATE(S): 18/10/05

JUDGMENT DATE: 12/12/2005

PARTIES:
CA 40456/05
Michael John Palmer (Appellant)
Pamella Anne Marea Dolman (Respondent)
CA 40564/05
Fiona Ann Dolman (Appellant)
Michael John Palmer (Respondent)

JUDGMENT OF: Ipp JA Tobias JA Basten JA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 6383/03

LOWER COURT JUDICIAL OFFICER: Macready M

COUNSEL:
CA 40456/05
I G Harrison SC (Appellant)
D E Grieve QC/D M Coulton (Respondent)
CA 40564/05
D E Grieve QC/D M Coulton (Appellant)
I G Harrison SC (Respondent)

SOLICITORS:
CA 40456/05
Teece Hodgson & Ward (Appellant)
Vizzone Ruggero & Associates (Respondent)
CA 40564/05
Vizzone Ruggero & Associates (Appellant)
Teece Hodgson & Ward (Respondent)

CATCHWORDS:
SUCCESSION - no provision made in estate of deceased for first wife - fraud established on part of deceased at time of property settlement in divorce proceedings with first wife - deceased marrying again - relevance of fraud
SUCCESSION - no provision made in estate of deceased for daughter - Singer v Berghouse two stage approach applied - consideration of 'the totality of the relationship' in determination of 'jurisdictional question' - relevance of concepts 'moral duty' and 'moral claims' in determining the 'jurisdictional question ' - effect of estrangement between parent and child - parent's lack of generosity in providing financial support to child - Gorton v Parks affirmed.
EVIDENCE - standard of proof in civil case where fraud sought to be inferred from circumstantial evidence - Bradshaw v McEwans applied - approach in civil case in the determination as to whether circumstantial evidence leads to the inference of fraud. D

LEGISLATION CITED:
Evidence Act 1995 (NSW), s 140
Family Provision Act 1982 (NSW), ss 6, 7, 9, 11
Inheritance (Family and Dependants) Provision Act 1972 (WA)
Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW), s 3

DECISION:
(A) As regards the executor's appeal (CA 40456/05) (i) The executor's appeal is dismissed (ii) Mrs Dolman's costs are to be assessed on a party and party basis and the executor's costs on an indemnity basis (iii) The costs so identified are to be paid out of the estate (B) As regards Fiona Dolman's appeal (CA 40564/05) (i) The appeal is upheld (ii) The order made by the Master dismissing her claim and the costs order he made are set aside (iii) Fiona Dolman is to receive a lump sum payment by way of a legacy of $655,000 from the estate (iv) Otherwise the provisions of the will remain unaltered (v) The estate is to pay Fiona Dolman's costs of the hearing before the Master and the costs of her appeal (vi) Fiona Dolman's costs are to be assessed on a party and party basis (vii) The executor's costs are to be paid out of the estate on an indemnity basis (viii) The executor of the estate is to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40456/05
CA 40564/05
SC 6383/03
IPP JA
TOBIAS JA
BASTEN JA
Monday 12 December 2005

MICHAEL JOHN PALMER v PAMELLA ANNE MAREA DOLMAN
FIONA ANN DOLMAN v MICHAEL JOHN PALMER

Judgment

IPP JA:
The two appeals
These reasons relate to two appeals that concern two separate applications under the Family ProvisionAct 1982 (NSW) (“the Act”) for orders that provision be made out of the estate of the late William Lance Dolman (the deceased).
The first appeal is by Mr Michael John Palmer, the executor of the estate. The executor challenges an order made by Master Macready (now Macready AsJ) that the deceased’s first wife, Mrs Pamella Dolman, receive a legacy of $500,000 from the estate (Dolman & Anor v Dolman [2005] NSWSC 327). The second appeal is by Ms Fiona Dolman (the daughter of the deceased and Mrs Dolman). Fiona Dolman challenges an order made by the Master dismissing her claim for provision from the estate.
Issues
The primary challenge by the Executor to the legacy made in favour of Mrs Dolman was directed to the finding by the Master that the deceased failed fully to disclose his assets in the course of divorce proceedings under the Family Law Act, settled in 1991. A second challenge concerned the Master’s conclusion that Mrs Dolman’s circumstances demonstrated a need for provision out of the estate of the deceased and, if such a need were established, the size of the legacy.
The challenge by Fiona Dolman was directed to the Master’s finding that she had not been left without adequate and proper provision for her maintenance, education and advancement in life. That challenge turned to a significant extent on the Master’s conclusion that she had “rejected” her father and “maintained her rejection” up until his death: Judgment at [68].
The claims by both mother and daughter were made pursuant to the Family Provision Act, s 7 of which states, relevantly for present purposes:
“7.Provision out of estate or notional estate of deceased person
Subject to section 9, … if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate … of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.”
There was no dispute that both claimants were eligible persons. However, the Act makes separate provision in relation to different classes of eligible persons, a matter relevant to the position of Fiona Dolman. Section 6(1) contains various definitions, including a definition of “eligible person” which reads, so far as relevant:
“Eligible person, in relation to a deceased person, means:

(a)          …
(b)          a child of the deceased person …
(c)          a former wife … of the deceased person, or
(d)          a person:

who was, at any particular time, wholly or partly dependent upon the deceased person …
Mrs Dolman fell within par (c) of the definition. Fiona Dolman would have fallen within par (d), but significantly, also fell within par (b).

The approach to be taken by the Court in relation to an application under s 7 depends in part on which category of eligible person a claimant falls within. Relevantly for present purposes, s 9 provides:
“9.Provision affecting Court’s power under sections 7 and 8
(1)Where an application is made for an order under section 7 by an eligible person who is such a person by reason only of paragraph (c) or (d) of the definition of eligible person in section 6(1), the Court shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors.
(2)The Court shall not make an order under section 7 … in favour of an eligible person out of the estate … of a deceased person unless it is satisfied that:
(a)the provision (if any) made in favour of the eligible person by the deceased person either during the person’s lifetime or out of the person’s estate, …
is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.
(3)In determining what provision (if any) ought to be made in favour of an eligible person … , the Court may take into consideration:
(a)any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:
(i)the acquisition, conservation or improvement of property of the deceased person, or
(ii)the welfare of the deceased person, including a contribution as a homemaker,
(b)the character and conduct of the eligible person before and after the death of the deceased person,
(c)circumstances existing before and after the death of the deceased person, and
(d)any other matter which it considers relevant in the circumstances.”
As will be discussed below, because Fiona Dolman fell within paragraph (b) of the definition of “eligible person”, it was not necessary for the Court to apply s 9(1) in relation to her application.
The deceased died on 2 April 2003 aged 71 years. He was survived by Mrs Dolman, Mr Gregory Dolman (the son of the deceased and Mrs Dolman), Fiona Dolman, and his second wife.
The value of the estate at the date of the deceased’s death was approximately $5,000,000. The substantial asset in the estate was the deceased’s home in Drummoyne which has been sold for $4,125,000.
The deceased made his last will on 1 April 2003, the day before he died. He left one-half of his estate to Gregory Dolman. He left 25% to one of his sisters and her husband, 7.5% to a nephew and the nephew’s wife, 5% to another sister and her husband, 2.5% to Mr Palmer (the executor) and his wife, 5% to two friends and the remaining 5% to a former de facto spouse.
The deceased made no provision for either Mrs Dolman or Fiona Dolman. He left statutory declarations in which he set out the reasons why he took this course. As regards Fiona Dolman, he said:
“I have made no provision in my will for my daughter Fiona Dolman for reasons including that she has made no contact with me, that is she has not visited me until very recently and has shown no interest in my welfare, even though she is aware that I have been ill in hospital.”
As regards Mrs Dolman, he said:
“I have made no provision in my will for my ex-wife, Pamella Dolman, for reasons including [that] we have been divorced now for more than 10 years and, at about the time of our divorce, we reached an agreement which was endorsed by the Family Court of Australia whereby my ex-wife received [an] adequate property settlement and also that she has, since our divorce, shown no interest in my welfare and has made no contact with me.”
The family background, the divorce and property settlement
The deceased was born on 16 December 1931 and Mrs Dolman was born on 22 June 1934. They married on 18 November 1962. In 1967 the deceased acquired, in his name, the home in Drummoyne in which the family was to live for many years and which became the principal asset in his estate. Gregory Dolman was born on 15 June 1963 and Fiona Dolman on 7 December 1971.
In April 1984 Gregory Dolman left home. In the middle of that year the deceased and Mrs Dolman separated. The deceased occupied the upstairs section of the house and Mrs Dolman and Fiona Dolman the ground floor. The deceased occasionally came to the ground floor but Fiona Dolman was not allowed upstairs.
In 1990, after acrimonious litigation, the deceased and Mrs Dolman were divorced. The litigation continued until March 1991 when they settled their property arrangements. By the settlement, the deceased retained the home at Drummoyne, then valued at $900,000. He agreed to pay $500,000 to his wife and to provide her with a car and certain furniture. Mrs Dolman and Fiona Dolman went to live in a property in Rodd Point which Mrs Dolman purchased with the payments she received from the property settlement.
By the settlement the deceased was required to pay Mrs Dolman the $500,000 by way of two instalments, $50,000 in April and $450,000 in July 1991. He paid the $50,000 in March. As regards the balance of $450,000, Mrs Dolman said that she was paid this in July 1991. The Master pointed out, however, that this payment was “not established by production of documents”, thereby implying, I think, that there was some uncertainty as to the date on which the $450,000 was paid.
On 9 August 1991 the deceased executed a mortgage over the Drummoyne property in favour of the National Australia Bank. The mortgage was an all moneys mortgage and, as the Master noted, “was stamped for $200,000”. The Master was satisfied that the mortgage established that the deceased borrowed $200,000 from the National Australia Bank which he used in part payment of the $450,000 payable to his wife.
The inference from the Master’s findings as a whole is that the $450,000 was paid on or after 9 August 1991 and this was accepted by both Mr Grieve QC (who together with Ms Coulton appeared for Mrs Dolman and Fiona Dolman) and Mr Harrison SC (who appeared for the executor).
The finding of fraud and its relevance to Mrs Dolman’s appeal
The following facts, found by the Master, support the overall inference that, at the time of the property settlement in 1991, the deceased concealed the true extent of his assets from Mrs Dolman:
(a)At the time of settlement the deceased indicated that he would have to borrow to pay the $500,000 to Mrs Dolman.
(b)He borrowed from the National Australia Bank against a registered mortgage that was only stamped up to $200,000.
(c)Any increase in the loan from the National Australia Bank, secured by the mortgage, “would lead to an obligation on the bank to update the stamping of the bank’s duplicate copy of the loan document”. Moreover, that stamping would need to be done within six months of any additional advance.
(d)No updated stamping was apparent on the mortgage and the period between the property settlement and the time of final payment to Mrs Dolman was some four months.
(e)The deceased’s disclosed income was only $52,261 per annum. He had limited cash resources and it would have been necessary for him to borrow $250,000, elsewhere, in order to pay the instalment of $450,000.
(f)The only security that the deceased could offer for any additional loan was a further mortgage.
The Master found, on these facts, that the deceased only borrowed $200,000 from the National Australia Bank and had other assets (whether in cash or some other form) which he did not disclose to Mrs Dolman but which he utilised, together with the $200,000, to pay her $450,000.
Implicit in the Master’s reasoning is that the inference that the deceased had concealed assets was more probable than the inference that he had borrowed a further $250,000 without providing any security.
The executor contended that the facts on which the Master relied did not negative the reasonable possibility that the deceased could have borrowed the further $250,000 from a friend or a bank. Hence, it was argued, Mrs Dolman had not discharged the onus that lay on her to prove fraud on the part of the deceased.
Both Mr Grieve and Mr Harrison accepted that, in the circumstances of this particular case, Mrs Dolman’s entitlement to provision from the estate depended upon whether the deceased had fraudulently misrepresented the extent of his assets to her at the time of the property settlement in 1991. In other words, they both accepted that the sole issue as to the entitlement of Mrs Dolman was fraud or no fraud. Should the executor succeed in his argument that the Master erred in finding that fraud had been committed, the appeal would succeed and there would be no need to consider the amount of the provision as found by the Master. Should the executor fail in this argument, the executor’s challenge to the amount of the provision would need to be addressed.
The arguments as to whether fraud had been properly established
The evidence relating to the circumstances under which the $450,000 was paid and the potential sources of the $250,000 forming part of that sum was sparse indeed. There was, for example, not even evidence as to how and in what form the $450,000 was paid. This is no doubt because of the lapse of 14 years between the property settlement and the trial.
Mr Harrison made some point of this. He drew attention to the fact that in the Family Court proceedings Mrs Dolman was represented by eminent and experienced counsel. Moreover, whether the deceased had made full disclosure of his assets was very much a live issue in the Family Court proceedings and was investigated there. For example, in June 1990 Mrs Dolman sought orders in the Family Court requiring the deceased to inform her solicitors “of the branch and the account number and style” of certain specified bank accounts operated by the deceased. The banks mentioned in the application included the ANZ Bank in Australia and two banks in the Philippines. Apparently, this application was resolved by a consent order. Mrs Dolman did not, before the Master, lead any evidence about the bank accounts, the subject of the application in 1991.
Mr Harrison submitted that as, in 1991, the deceased had relations with other banks, a reasonable possibility arises that he borrowed the $250,000 from one of those banks.
Supporting Mr Harrison’s argument, generally, is the fact that the deceased earned sufficient to be able to repay any loan of $250,000 that he might have received in August 1991. Since the mid-1970s the deceased was employed as a project manager on construction sites. In 1987 he worked as a site manager on the construction of the Asian Development Bank head office in Manila, Philippines. He remained in the Philippines until January 1991 when he returned to Sydney and had six months off work. In August 1992 he went to Hong Kong where he was employed as a consultant and project manager on the construction of two hotels in Vietnam. He worked in Hong Kong until July 1994 and thereafter in Vietnam where he supervised the construction of the buildings until the end of 1996. He returned to Sydney in 1997 and in that year there was no evidence as to what he earned subsequent to 1991, but it was not likely to have been insignificant.
At some time before 2004 or early 2005, when Mrs Dolman learned that the mortgage had only been stamped to $200,000, she was told by a neighbour that the deceased “didn’t borrow all the money that he said he did”. Mrs Dolman took no steps to investigate this allegation; she said, “I didn’t do anything further about it”. She said that she did not do so “because I had enough at the time and I didn’t want to go back”. She added that she was “a bit frightened to do so”.
Mr Harrison submitted that, in the circumstances, Mrs Dolman should have raised the issue of fraud at the time when the deceased would have been able to meet the allegations against him. He made this submission as part of his argument that Mrs Dolman’s delay should be taken into account when weighing up all the circumstances.
Mr Harrison submitted that Mrs Dolman’s delay led to the executor experiencing difficulties in finding evidence to rebut the case made so late against the estate. This submission, however, loses some of its force by the fact that the executor made no search of` the deceased’s personal papers in an effort to determine how the deceased found the $250,000 forming part of the instalment of $450,000.
Mr Grieve submitted, on the other hand, that it was highly improbable that a bank would grant a loan of $250,000 without security. A second mortgage had not been registered over the deceased’s home (that being the only security available) and, in any event, there was no apparent reason why the deceased should borrow $200,000 from the National Australia Bank against a first mortgage but borrow the $250,000 from a different bank. These matters, he submitted, negated any probability that the deceased borrowed the extra money from a bank.
In answering the argument that the deceased could have borrowed the $250,000 from a friend, Mr Grieve submitted:
“Mr Palmer [the executor], having been a long-standing friend of the deceased, as a matter of likelihood would have known of that”.
There was, however, no evidence that supported this submission (which I do not accept). Moreover, Mr Palmer was not cross-examined as to whether he was sufficiently close to the deceased to have been aware of his financial position at the relevant time and he was not asked whether he questioned the deceased as to where he obtained the $250,000.
Mr Grieve submitted that the possibility that the deceased could have obtained the $250,000 from a friend involved mere guesswork.
The standard of proof, in a civil case, where fraud is sought to be inferred from circumstantial evidence

It was common ground between Mr Grieve and Mr Harrison that the standard of proof to be applied was that expressed by Menzies J in Plomp v R (1963) 110 CLR 234 at 252, namely:
“[Whether] there was sufficient evidence upon which the jury, fulfilling their duty not to convict unless the inference of guilt was the only inference which they considered that they could rationally draw from the circumstances, could have convicted the applicant.
…The customary direction where circumstantial evidence is relied upon to prove guilt, [is] that to enable a jury to bring in a verdict of guilty it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw…”
Despite the agreement of counsel, however, Plomp was a criminal case and what was there said does not apply to this case.
The relevant principle in regard to civil cases was expressed by the High Court in the case of Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, in a passage that has been repeated many times. The passage is:
“Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674, at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise …”
This statement in Bradshaw was adopted in Luxton v Vines (1952) 85 CLR 352 at 358; Holloway v McFeeters (1956) 94 CLR 470 at 480 to 481; Jones vDunkel (1959) 101 CLR 298 at 304;and Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161 and 168.
In Chamberlain v R (No 2) (1984) 153 CLR 521 Gibbs CJ and Mason J said at 536:
“When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged …”
In Doney v R (1990) 171 CLR 207 Deane, Dawson, Toohey, Gaudron and McHugh JJ said at 211 that when a lesser standard of proof than beyond reasonable doubt will suffice, “the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved”.
On these authorities, it is sufficient in a civil case that the circumstances raise a more probable inference in favour of what is alleged. (See also Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125).

The standard of proof to be applied, together with a non-exhaustive list of “matters” to be taken into account, are now to be found in s 140 of the Evidence Act 1995 (NSW) which provides:
“Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceedings; and
(c) the gravity of the matters alleged.”
Section 140(1) is reflective of the law as stated in Bradshaw. Section 140(2) provides for no new principle.
The approach, in a civil case, in determining whether circumstantial evidence leads to an inference of fraud
Certain principles have become well-established in determining, in a civil case, whether circumstantial evidence leads to an inference of fraud. The following are presently pertinent:
(a)The jury must consider “the weight which is to be given to the united force of all the circumstances put together” (per Lord Cairns in Belhaven & Stenton Peerage(1875) 1 App Cas 278 at 279 - quoted with approval by Gibbs CJ and Mason J in Chamberlain v R (No 2) at 535).
(b)The onus of proof is only to be applied at the final stage of the reasoning process: “[i]t is erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. To do so destroys the integrity of [a] circumstantial case” (per Winneke P in Transport Industries Insurance Co Ltd v Longmuir at 129).

(c) The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful.

(d) Where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved: Bradshaw.

Mr Harrison placed considerable reliance on the approach expressed in Briginshaw v Briginshaw (1938) 60 CLR 336. Although Briginshaw has been quoted so many times, it is helpful to repeat Sir Owen Dixon‘s statement at 361 to 362:
“Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
The question arises as to the authoritative weight that, today, attaches to the observation that, where a serious allegation is made, “reasonable satisfaction” should not be produced by “inexact proofs, indefinite testimony, or indirect inferences”.
In Briginshaw Dixon J at 365 to 367 expressly recognised that adultery (the “serious allegation” in that case) might be proved by “circumstantial evidentiary facts” (see at 366). His Honour approved Lord Buckmaster’s reference in Ross v Ross (1930) AC 1 at 7 to proof of adultery as being “a matter of inference and circumstance”, and accepted that the test for corroboration of confessional material depends on the “surrounding circumstances” (at 366). Later, in Plomp, Dixon J observed at 242 (in a passage quoted in Chamberlain v R (No 2) by Gibbs CJ and Mason J at 536):
“I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.”
It is worth repeating, I think, that in Chamberlain v R (No 2) at 536 Gibbs CJ and Mason J said that in a civil case “the circumstances must raise a more probable inference in favour of what is alleged”.

In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Mason CJ, Brennan, Deane and Gaudron JJ said at 171:
“[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.”
The more recent authorities to which I have referred, and s 140 of the Evidence Act (1995) (NSW) make it plain that there are no hard and fast rules by which serious allegations might be proved from circumstantial evidence. The inquiry is simply, taking due account of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, has the allegation been proved on a balance of probabilities.
Was fraud established?
As I have indicated, the evidence establishes that at the time of settlement the deceased needed to borrow to pay $500,000 to Mrs Dolman as he could not otherwise find the funds. In particular, the deceased’s disclosed income, assets and liabilities at the relevant time were such that he could not have paid the $250,000 (forming part of the $450,000) without borrowing the entire sum. His own public utterances support this finding.
The deceased borrowed no more than $200,000 from the National Australia Bank, and he needed a further $250,000 to pay the final instalment of $450,000. I appreciate that it is possible that he may have borrowed more from that bank but I think that improbable; the probabilities are that once the bank required $200,000 to be secured by a mortgage, it would have required a larger loan to be secured as well.
The only security that the deceased might have provided for a loan of $250,000 was his home valued at about $900,000 and the evidence indicates that his home was not so utilised. Two consequences follow from this. Firstly, whatever loan was obtained (if one was obtained) would have been unsecured unless he had another undisclosed asset. Secondly, the Master’s finding that, on the probabilities, the deceased borrowed no more than $200,000 from the National Australia Bank cannot be challenged.
Had the deceased borrowed the money from another bank or financial institution on an unregistered mortgage, the probabilities are that the institution in question would have lodged a caveat against the title to the deceased’s home to protect such a loan, and there was no evidence of any such caveat. I therefore accept that he did not obtain such a loan.
In coming to the conclusion expressed in the last paragraph, I have had regard to the fact that Mrs Dolman led no evidence about the accounts that the deceased, to her knowledge, had with other banks. I have taken into account the terms of the settlement arrived at which suggest that, whatever investigations were made by Mrs Dolman in the course of the proceedings in the Family Court, they did not throw up evidence of any assets other than those in fact disclosed to her by the deceased. I also have borne in mind that the executor made no attempt whatever to ascertain from the deceased’s papers whether there was any material that could explain where the balance of $250,000 came from. He appears to have conducted no investigation of any kind.
It is within the bounds of possibility that the $250,000 was a gift to the deceased from some unknown person. This possibility, however, is particularly remote and was not even suggested by the executor. It is also within the bounds of possibility that he acquired the $250,000 from gambling; but there was no evidence that he was a gambler and this possibility, too, was not suggested by the executor.
Thus, the question to be weighed in the balance is: did the deceased have cash to the extent of $250,000 (or the wherewithal to obtain cash to that extent) which he did not disclose to Mrs Dolman at the time of the property settlement, or did he borrow the $250,000 without security from a friend?
Support for the proposition that he did not conceal assets from Mrs Dolman (which concealment – if it occurred – must have been fraudulent) is obtained from “the conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct”.
The latter inference is of particular significance in this case as the deceased, is now unable to answer the serious allegations against him.
There are, however, matters that weigh against the conventional perception. The Family Court proceedings were bitterly contested. In such circumstances it is not completely out of the ordinary for some men to attempt to conceal their assets to reduce the amounts they have to pay on divorce to their former wives. Experience tells us that fraud in these circumstances is more frequent than commercial fraud. The deceased, generally, as I will indicate in detail when dealing with Fiona Dolman’s appeal, was not generous, financially, to Mrs Dolman and Fiona Dolman prior to the divorce (or at any time) and seems to have been desirous, generally, of keeping his financial commitment to them to a minimum. It appears from a draft letter he wrote to Fiona Dolman (but never posted or gave to her) that he felt that he had done his duty by Mrs Dolman and Fiona Dolman and given them ample financial support (even though, I think, he had been something of a skinflint towards them). Lastly, at the relevant time there was little love lost between the deceased, on the one hand, and Mrs Dolman and Fiona Dolman on the other. In these particular circumstances, it is not improbable that the deceased might have persuaded himself that it was appropriate to conceal assets from his wife and daughter.
There are other matters that support the inference that there was a concealment of assets and not an unsecured borrowing from a friend. Firstly, what convincing reason could there be for the deceased deciding to borrow only $200,000 from the National Australia Bank and the balance of $250,000 from a friend? There was ample equity in the house to support a borrowing of $450,000. The only possible advantage to the deceased would be if the loan from the friend would be at a lesser rate of interest. Secondly, while it is possible, it is not likely that even a friend, in 1991, would make an unsecured loan, free of interest, in such a significant sum as $250,000. Thirdly, there was no explanation as to where the first payment of $50,000 came from. The deceased’s financial position was such that he would have had to borrow this sum as well. The likelihood of him borrowing this from a friend on an unsecured basis, then borrowing $200,000 from the bank on a mortgage, and then borrowing $250,000, unsecured, from a friend, makes little sense.
The proposition that the deceased obtained the $250,000 (and, indeed, the $50,000) from a friend, without security, is a totally speculative possibility. The proposition that he had these funds (or the wherewithal to obtain them) which he concealed from Mrs Dolman, is also speculative to a degree. It is, however, supported by the various circumstances to which I have referred and in my view is the probable inference to be drawn.
In my opinion, the contrary possibilities – when weighed in the balance – do not rebut the inference that the deceased probably concealed the true extent of his assets from Mrs Dolman. For the reasons I have expressed, I am not persuaded that the Master erred on this issue. Had the test been that in Plomp I might have come to a different conclusion, but Plomp does not apply. Accordingly, I would uphold the Master’s finding that the deceased fraudulently concealed his assets from Mrs Dolman.
The provision to be made to Mrs Dolman
The Master described the situation in life of Mrs Dolman as follows:
“Pamella is 71 years of age, single and has no dependants. She lives with her daughter at the property at Rodd Point. That property which she owns outright is valued at $870,000. She has furniture and other household items of a value of between $10,000 and $20,000. She has a 1990 car valued at $5,450 and has cash in the bank of $3,500. Her only liabilities are a credit card debt in the sum of $600.
Pamella is in good health and continues to work part time. She receives a pension of $235 per week and also receives money by working in the school canteen for which he [sic she] receives $100 per week. She also receives board from Fiona of $125 per week. The present weekly expenses amount to $463.50 per week. Obviously she is just making ends meet and would like to be able to cease her part-time work.”
The Master observed that Mrs Dolman needed to have some work done on her house estimated to cost $36,000. She needed a new car that would cost her in the order of $20,000.
The Master noted that Mrs Dolman wished to be able to spend approximately $711 per week in order to have a reasonable lifestyle. This, according to the Master, represented a shortfall of $321 per week. The Master said that the capital sum that would allow for this shortfall was $182,135 but allowance should be made for the effect that such a provision would have on her pension.

The Master said that, assuming Mrs Dolman received no pension and Fiona Dolman stayed at home and still contributed $125 per week, the capital sum needed to cover the shortfall would be $332,496. But, assuming that Fiona Dolman left home, the capital sum would become $403,421. The Master found that there was a real possibility that Fiona Dolman would leave home and considered that Mrs Dolman should have some funds for emergencies that might occur.
The Master took into account the fact that the financial situation of the residuary beneficiaries, who took one-half of the estate, had not been put in evidence before him and, further, Gregory Dolman was to receive a very substantial provision from the estate.

The Master said:
“Bearing in mind all these matters and the large size of the estate I think an appropriate order would be for [Mrs Dolman] to receive a legacy of $500,000.”
He concluded that that legacy should be charged against the estate generally and not in any particular proportion.
It was pointed out in argument before this Court on the executor’s behalf that Mrs Dolman’s unencumbered home was valued at $870,000 and she had no debts of significance. Mr Harrison submitted that it was open to Mrs Dolman to sell her home and move to cheaper accommodation. He submitted that she had no need to remain in her present home. He also submitted that Mrs Dolman had not demonstrated that she had made any contribution to the deceased of a kind referred to in s 9(3)(a) of the Family Provision Act.
I am not persuaded that Mrs Dolman should sell her home in which she has lived for many years. In my view, the lack of contributions under s 9(3)(a) is counter-balanced by the finding that the deceased had fraudulently misled Mrs Dolman in the course of the Family Court proceedings (with the result that she settled her claim in those proceedings for a significantly lesser sum).
I am not persuaded that the Master’s determination of the provision that should be made to Mrs Dolman was erroneous. In my view it was within his discretion.
Fiona Dolman’s appeal: the jurisdictional question, moral claims and duties
It was common ground that the Master was correct in approaching Fiona Dolman’s claim in accordance with the well-known two stage approach explained in Singer v Berghouse (1994) 181 CLR 201. In that case Mason CJ, Deane and McHugh JJ, when speaking of the Family ProvisionAct, said at 208 to 209:
“It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant. The first stage has been described as the ‘jurisdictional question’.”

Vigolo v Bostin (2005) 79 ALJR 731 concerned an application under the Inheritance (Family and Dependants) Provision Act 1972 (WA), which adopts the same key language as s 9 of the Family Provision Act. Gleeson CJ in that case accepted that the concepts of “moral duty” and “moral claims”, in relation to testator’s family maintenance legislation, remain of value and should not be discarded (see [11] to [25], 734 to 738).
Gummow and Hayne JJ said at [63], 744 that there was a “need for caution in a continued reiteration, as an aid to construction of modern legislation, of the moral duty owed by testators to their spouses and children”. Their Honours said at [73], 745 that concepts of moral duty and moral claims may mislead. They said:
“It is therefore better to forgo any convenience that these shorthand expressions may offer in favour of adherence to the relevant statutory language.”
Their Honours said in effect that the correct approach to the first or “jurisdictional” limb was that indicated in the joint judgment in Singer (see [74], 745) and referred, in particular, to the statement by Mason CJ, Deane and McHugh JJ in Singer at 209 to 210.
Their Honours stressed the importance (for the purposes of the appeal in Vigolo) of the totality of the relationship between the applicant and the deceased but did not, in terms, deny the relevance of what has generally been understood by moral duty and moral claims.
In Vigolo Callinan and Heydon JJ, in discussing the meaning of the word “proper” (which appears, relevantly, in the Act in s 9(2) – the section that concerns the “jurisdictional” question) said at [114], 751:
“Its use, it seems to us, invites consideration of all of the relevant surrounding circumstances … The use of the word ‘proper’ means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the ‘station in life’ of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.”
Their Honours expressed the view that moral duty and moral obligation may be relevant and within the contemplation of the Act and that that view was “generally consistent with the long stream of authority in this Court”. ([117], 752); see also at [113]).
It follows, I think, from Vigolo, that considerations of the kind ordinarily understood to fall within the concepts of moral duty and moral claims remain relevant, generally, and are relevant in determining the jurisdictional question. The Master, rightly, relied on such considerations in deciding the issue before him.
The reasons of the Master as to the jurisdictional question
The Master noted that Fiona Dolman was an eligible person under paragraph (b) of the definition of “eligible person” in s 6(1) of the Act. This meant that the Court was not required, under s 9(1) of the Act, first to determine whether, having regard to all the circumstances of the case, there were factors that warranted the making of the application. The Master proceeded, correctly, immediately to consider the jurisdictional question.
The Master made the following observations concerning Fiona Dolman’s situation in life at [39] and [40]:
“Fiona [is] 33 years of age, single and lives with her mother. She has no dependants. She pays board of $125 a week. She has a car worth between $3000 and $3500, various items of furniture and personal effects valued at approximately $10,000 and savings of $13,704. She has accrued superannuation of approximately $18,000 and is presently employed as an assistant visual merchandising manager by Myers on an annual gross salary of $50,000. Her weekly expenses total $860.
Fiona is in reasonable health although she says she has suffered from depression since the death of her father. Her interaction with her father is subject to some further medical evidence that I will deal with later. She attended a chiropractor from time to time and finds that this is of assistance. She clearly is able to engage in full-time work and there is no reason to think that she will not do so in the future.”
The Master turned to the important issue of “the totality of the relationship” between Fiona Dolman and the deceased. He said at [63]:
“It is necessary when considering the relationship to determine if possible whether the separation between Fiona and her father was solely the fault of either or whether … it came about by factors too strong for either to control or somewhere in between.”
The Master made relevant observations concerning the history of the relationship between Fiona Dolman and the deceased. After remarking that there was “no suggestion of any ill treatment or improper conduct in their relationship prior to separation in 1984”, and that there was “no evidence of any conduct by the deceased which in any way affected Fiona”, the Master said at [65]:
“In 1991 Fiona’s parents were divorced and Fiona and her mother went to live at Rodd Point. It is plain that after they moved to Rodd Point the deceased used to send cards to Fiona and he kept contact in that way. [It was] [i]n 1993 or 1994 when Fiona was 22 or 23 years of age and she had been living with her mother for some two or three years at Rodd Point that she took the initiative to cut off any further overtures to her by the deceased. She did so by writing a letter to her father which is not in evidence but which the first plaintiff [Fiona] concedes was a brutal and honest letter.”
The Master observed that the next incident occurred in 1996 or 1997 when Fiona Dolman drove past the deceased’s house, made eye-contact with him, but kept driving on. She explained that at that time in her life she was fearful of her father and she never knew what he was going to say. She thought that she was never good enough for him. The Master noted that at that stage Fiona Dolman was 26 years of age and was working and living her life as an adult.
The Master stated at [67]:
“Some two weeks before the death of the deceased[,] Fiona, who was 32 years of age, was told by a former neighbour that her father had cancer and did not have long to live. She did nothing about it. In cross-examination she was asked about a visit to the deceased a day or so before he died in these terms:
QAnd you've given an account in your very first affidavit of some conversations you had with him in the last days of his life?
A.           Yes.
Q.And you recall that one of the statements that you attribute to yourself during that first visit, this is reading from paragraph 37 of your first affidavit, is that you said to him, "I can not regret my decision not to see you." You remember saying that to him?
A.           Yes, I do.
Q.And you maintained your rejection of him right up until the moment of his death?
A.I couldn't change it. I regret it now and I have to live with it, but at that point because things were moving so fast, you know. I find out my father's sick on the Friday and I lose him on the Wednesday. How am I supposed to put five days into 12 years or 31 years of my life? I do remember saying that and at that time I was telling myself I do regret it because I couldn't change it and now I have to live with it.
Q.In your affidavit [you] say that although he was disappointed in your decision he understood; do you recall saying that?
A.           Can you say it again.
Q.In your affidavit you responded to that statement that although he was disappointed in your decision he understood?
A            Yes.”
The Master found at [68]:
“Plainly, Fiona maintained her rejection of her father up until his death.”
He concluded at [69]:
“It is apparent that Fiona’s rejection of her father once she was an adult was a deliberate act on her part and maintained by her up until the date of death.”
The Master said that what had to be considered was whether there was any reason for this rejection which might be attributed to fault on the deceased’s part or, alternatively, something which was too difficult for Fiona Dolman to overcome and thus understandable.
After reviewing certain evidence by psychiatrists called by Fiona Dolman and the executor the Master said at [78]:
“We are here dealing with a plaintiff who perhaps lacked some insight but who is not suffering from any psychiatric illness. Although there are statements by the plaintiff about being fearful of her father she gives no evidence of any conduct of the deceased which might have led to those feeling[s]. Given her closeness with her mother at separation it is quite natural that she remained with her mother. To my mind it does not explain what happened once she was an adult. At the age of 22 years she made a very conscious decision to reject her father’s overtures, which had been taking place for a number of years, to maintain contact. After that rejection her father did not cut off contact but wrote to her and to use his expression he ‘left the door open to her’ to come back and have contact with him.”
The Master concluded at [80] and [81]:
“Notwithstanding reminders of her father when she saw him in 1996 or 1997 she did not establish contact. I do not accept that the reason was that she was fearful of her father because there is no evidence of anything which one often hears in these cases to lead to such a fear. It seems to me that for her own reasons the plaintiff decided to throw her lot in with her mother and maintain loyalty to her while having nothing to do with her father in his later years. That rejection continued up until the death of the deceased. It was only when the plaintiff realised she had been left out of his will that she became upset and for that reason she has brought these proceedings.
In my view, when considering the totality of the relationship between the first plaintiff, Fiona Dolman, and the deceased, the plaintiff’s conduct was such that it is not appropriate for her to receive provision. In other words, I do not think the first plaintiff passes the jurisdiction hurdle of being left without adequate and proper provision for her maintenance, education and advancement in life.”
Fiona Dolman’s arguments as to the jurisdictional question
Mr Grieve submitted that there were two errors that “vitiated” the Master’s judgment.
He submitted that the first error was the Master’s conclusion that Fiona Dolman’s estrangement from the deceased since 1991 negatived the inferences flowing from the facts that Fiona Dolman was the daughter of the deceased and was a person in need.
He submitted that the second error was the Master’s finding that the estrangement between Fiona Dolman and the deceased was attributable entirely to her.
The cause of the estrangement
It is convenient to deal first with the second limb of Mr Grieve’s argument.
Mr Grieve commenced by drawing attention to evidence of aspects of the relationship that were not mentioned by the Master in his reasons. The evidence in question was given by Fiona Dolman and Mrs Dolman and was not challenged in cross-examination.
That evidence reveals that even before Fiona Dolman’s parents separated in 1984 (when she was aged 12) the deceased spent little time with his family and her, and I accept that, prior to her parents’ separation, Fiona Dolman did not enjoy much fatherly affection. According to that evidence, following the separation the relationship between the deceased and Fiona Dolman did not improve.
Mr Grieve submitted that the Master erred in rejecting the proposition that Fiona Dolman did not make contact with the deceased when she saw him in 1996 or 1997 because she was fearful of him. The Master said that he came to this conclusion “because there is no evidence of anything which one often hears in these cases to lead to such a fear”. This led to the Master’s finding at [80] that:
“[F]or her own reasons [Fiona] decided to throw her lot in with her mother and maintain loyalty to her while having nothing to do with her father in his later years. That rejection continued up until the death of the deceased.”
Mr Grieve referred to a report dated 31 March 2004 from Dr Apler that was admitted into evidence. Dr Apler stated in that report:
“[Fiona’s] father was critical. He would always say ‘you could have done better’ … Ms Dolman described him as a strict, hard disciplinarian. She felt that he raised his children the way he had been raised himself. ‘You knew when you did something wrong’, she said, recalling her father threatening her with a wooden spoon. She was fearful of him.”
Dr Apler, in his report, described the period after the separation of the parents:
“[Fiona] had always turned to her mother for help. Turning to her father was not helpful as he was unyielding or unavailable. Her father seemed always busy and distant. She felt uncomfortable that her father could come downstairs and enter her space while she was not allowed to go upstairs where he lived. She was scared of his temper and tried to be as quiet as she could be while her father was at home. She was scared of his verbal aggression. She refused to shower or flush the toilet if her father was home as she did not want to attract his attention. She would wait until her mother came home. She felt safer in the company of her mother. She avoided walking in the hallway so that her father would not catch a glimpse of her. She was afraid of what he may say or do.”
According to Dr Apler’s report, following the divorce in 1991 the position did not change. The report recounted:
“She wanted to avoid her father, in whose company she felt unconfident and insecure. In his presence, she felt quiet and unable to contribute to conversations. He would be saying ‘you shouldn’t do this or say that’. She unsuccessfully tried to get a positive response from him. She did not like to be alone with him. She felt afraid not knowing what he would say and she worried that he may judge her or put her down. Having a relationship with him left her feeling that she was not good enough and that she could not live up to his expectations. She described him as perfectionistic with regards to relationships and work.”
Dr Apler expressed the following opinion:
“Mr Dolman’s tendency to be demanding, critical and unpredictable resulted in Ms Dolman being fearful, avoidant and unconfident. It explains her reluctance to see her father in later years.”
Of course, it was open to the Master to reject the evidence of Dr Apler, or not to accept the veracity of the information given to him by Fiona Dolman. The Master, however, made no findings of this kind. On the contrary, he said (as I have pointed out) that he did not accept that Fiona Dolman was fearful of her father on the ground that there was “no evidence of anything which one often hears in these cases to lead to such a fear”.
The testimony that I have set out is evidence that could have led to a fear of the kind articulated by Fiona Dolman. I accept, therefore, that the Master erred by holding that there was no evidence of matters that would give rise to Fiona Dolman fearing the deceased.
I would add that, in setting out the evidence supporting Fiona Dolman’s assertion that she was fearful of her father, I do not intend to make any judgment as to whether such fear was justified or as to whether the deceased’s conduct involves any moral disapprobation. The circumstances described are not particularly unusual in modern society and different personalities react differently to them. The relevance of the evidence supporting Fiona Dolman’s assertion is twofold. Firstly, it supports Mr Grieve’s contention that the Master erred in attributing the estrangement solely to Fiona Dolman. Secondly, to give effect to the admonition to have regard to the totality of the circumstances, a proper understanding is required of the matters that led and contributed to the breakdown of the relationship.
There is another factor, and an important one, relevant to the breakdown of the relationship, to which the Master also did not refer. That is the parsimonious attitude of the deceased in providing financial support to Fiona Dolman and her mother.
In 1991, after Mrs Dolman and Fiona Dolman had moved from the family home in Drummoyne to Rodd Point the deceased left Mrs Dolman a note to the effect that he was leaving her $25 for Fiona Dolman and that Mrs Dolman should “make an appointment to see Social Security”. In effect, he provided irregular payments of $25 a week to Mrs Dolman for the maintenance of Fiona Dolman.

Over the relevant period Mrs Dolman lived in relatively straitened circumstances. She said that $25 per week was insufficient to maintain Fiona Dolman’s living, educational, health and recreational needs. Mrs Dolman said that there was only one occasion from 1984 onwards on which additional assistance was provided, (when the deceased paid for dental treatment for Fiona Dolman). It was difficult financially for Mrs Dolman to provide dinners on celebratory occasions such as Christmas or Fiona Dolman’s birthdays. According to Mrs Dolman, “[v]ery rarely from 1984 to 1991” could she afford to purchase clothing or shoes for Fiona Dolman. From 1984 to 1991 she and Fiona Dolman only ate at restaurants when neighbours offered to pay for their meals. When Fiona Dolman was in her teens, she received invitations to parties but she rarely went because Mrs Dolman could not afford to pay for a present and sometimes the invitations required that she pay for her meal. From 1984 until Fiona Dolman started work in August 1991 she did not buy clothes. She received hand-me-downs from neighbours. She would wear her clothes until they “either fell apart or [she] outgrew [them]”. She wore her shoes “until they were ruined”. She had to be careful with her school uniform because her mother could not afford to purchase any new items for her.
The financial circumstances of Fiona Dolman in this period have to be seen against the context of the deceased (according to the statement of financial circumstances he filed on 7 March 1991 in the Family Court) spending $34,450 in the year ended 30 June 1990 on entertainment.
In my view, it was understandable for a young person in Fiona Dolman’s position, observing the financial difficulties of her mother and experiencing financial difficulties herself, to have feelings of resentment towards her father. These are matters that should have been taken into account in determining the totality of the circumstances relevant to the jurisdictional question. As the Master made no mention of them I infer that he did not take them into account.
The Master said that, after Fiona Dolman had written the deceased a letter (which Fiona Dolman herself described as a “brutal request to stop all communication”), the deceased “did not cut off contact but wrote to her and to use his expression he ‘left the door open to her’ to come back and have contact with him”. Significantly, however, the deceased’s letter, to which the Master referred, was written to a friend, Mrs Chestnut, and Fiona Dolman did not receive it.
Although the deceased did not otherwise communicate with Fiona Dolman, he sent her birthday and Christmas cards to which she did not reply. These cards stopped in 1993 or 1994 when Fiona Dolman wrote the deceased the “brutal” letter. The deceased wrote a reply (presumably a draft) to this letter, but never sent it. It is plain from the deceased’s draft reply that Fiona Dolman had complained about the lack of financial support she had received from him and the time he had spent working and not paying her adequate attention. The deceased’s draft reply is argumentative and aggressive and displays no real sense of affection. Again, these are not matters to which any moral judgment can attach. They merely demonstrate that little significance can be paid to Fiona Dolman’s letter. There are two sides to the story.
In the light of the breakdown that had occurred, and the deceased’s own conduct, it is not difficult to understand Fiona Dolman’s reluctance to visit the deceased when he was in hospital, dying. By that I do not suggest that her behaviour was morally justified. Rather, it seems to me, her conduct - understandable as it is – has little significance in determining whether she passes the jurisdictional hurdle under the Act. I would add that Fiona Dolman’s evidence as to what occurred when she did visit her father suggests that there was a reasonable reconciliation between the two immediately prior to his death (she visited him in hospital on three of the last days of his life).

When regard is had to the totality of the circumstances, I think that the Master erred, with respect, in finding that the estrangement between Fiona Dolman and the deceased was attributable entirely to her. The estrangement resulted from circumstances for which both the deceased and Fiona Dolman were responsible. Furthermore, although the estrangement continued during Fiona Dolman’s early adult years, its roots were in her childhood and it is difficult to pass judgment in respect of such matters.
The effect of an estrangement between parent and child on the right to provision from the deceased parent’s estate

This question must be addressed, as a matter of principle, according to the two-stage approach required by the Family Provision Act. According to decisions with respect to the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW), s 3, factors relevant to the question whether the deceased has made adequate provision for the applicant, at what is now called the first stage, are the same factors which, according to sub-s 9(3), must be considered in determining what provision (if any) ought to be made, at the second stage. Thus, the conduct of a claimant towards the deceased is a relevant factor in determining whether proper maintenance or support has been provided. See, for example, Goodman v Windeyer (1980) 144 CLR 490 at 497 per Gibbs J.
Singer v Berghouse (1994) 181 CLR 201 affirmed that the same approach is appropriate in relation to the first or “jurisdictional” stage of the scheme provided by s 9 of the Family Provision Act. Thus, at 209-210, the joint judgment stated:
“The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”
Their Honours continued:
“The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.”
Pontifical Society for the Propagation of theFaith v Scales (1962) 107 CLR 9 is a case where an estranged son failed, but the circumstances were extreme. The testator was 86 when he died and the plaintiff was aged 50 years. The testator had not seen his son for 46 years. His son had no recollection of his father and had never attempted to communicate with him. He was not a person in need. By a majority the High Court overturned the decision of the trial judge who had made an order in the son’s favour. Dixon CJ at 18 remarked:
“In truth there is the bare fact of paternity and no other mutual relation.”
He said at 20:
“If one really considers the situation of this old man in the closing stages of a long life in which his son has played no part at all, a son to whom his father has meant nothing and who did not even know him, it is hard to see why the testator, in the interest of his son, should be deprived of his complete freedom of testamentary disposition.”
The present is a substantially different case to Scales. The differences are obvious and I do not think that I need to detail them.
In Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Holland J set out various circumstances that might give rise to a moral obligation on a testator to provide for a child in need. He said at 540:
“One of the circumstances must be the size of the testator’s estate because a man cannot be expected to give what he cannot afford but, if he can well afford it, he should provide adequately for those for whom the statute expects him to provide. If it is a case of parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned for the child’s welfare. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent’s hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed.”
In Gorton v Parks (1989) 17 NSWLR 1 Bryson J (at 9-10) made what Young J in Walker v Walker (unreported, NSWSC, 17 May 1996) described as “a statement which has become a favourite for counsel appearing for what might be called ‘non-dutiful children’ in applications under this Act”. Bryson J said (in a passage that has often been quoted):
“The observations [of Dixon CJ about paternity in Scale’s case] seem to involve a view of the moral obligations of a parent which differs I would think from the almost universal view of the Australian community; the view involved seems to have been that the moral obligations of a parent can be limited, and can possibly be escaped, by steadfastly maintained repudiation or evasion. Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been large changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he had no duty towards them. … The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962.”
I agree, generally, with these remarks and would add that the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.

In Walker v Walker Young J said at [30] – [31]:
“… I reject the approach that all an applicant under this Act [Family Provision Act 1989 (NSW)] has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally; see for instance Scales’ case at 19.”
I agree with his Honour’s remarks, although I would express the rider that, often, where an applicant is a person within paragraphs (a) or (b) of the definition of “eligible person” in s 6(1) of the Act, proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his Honour expounds.

Did Fiona Dolman satisfy the jurisdictional requirement

The Master said, as I have indicated, “it seems to me that for her own reasons [Fiona Dolman] decided to throw her lot in with her mother and maintain loyalty to her while having nothing to do with her father in his later years. That rejection continued up until the death of the deceased”. If the Master’s reference to Fiona Dolman’s “own reasons” is a finding that the deceased’s conduct towards Fiona Dolman could not be criticised (in the context of a father’s moral duty) and did not contribute to Fiona Dolman’s decision (and in the context of the Master’s judgment as a whole, I think that this is what he did mean by these words) I think, with respect, that he erred.
Having regard to the totality of the circumstances, I do not think that Fiona Dolman’s conduct should preclude the Court from being satisfied, under s 9(2) of the Act, that the provision made for her in the deceased’s estate (namely, nil) was inadequate for her proper maintenance, education and advancement in life.
In my view the totality of the circumstances to be taken into account in relation to s 9(2) are, at least, the following:
(a)Fiona Dolman grew up in the deceased’s house (as his daughter) as part of a family involving the deceased, her mother and her brother until 1984, when the deceased and her mother separated and the deceased went to live upstairs, segregated from his wife and daughter.
(b)The deceased provided some financial support to Fiona Dolman after 1984.
(c)There was little demonstrable affection between Fiona Dolman and her father.
(d)The perceived lack of affection on the part of the deceased, Fiona Dolman’s feelings of fear and anxiety regarding criticism and lack of approval from him, her feelings of loyalty and affection to her mother, and his parsimonious attitude towards Fiona Dolman and her mother, contributed to a breakdown in relations between Fiona Dolman and the deceased.
(e)The breakdown in relations continued from 1991 to 2003 (until three or four days before the deceased died).
(f) Fiona Dolman is a person in need.
(g)The deceased’s estate is relatively large (without taking into account the costs of the litigation) being between $4m. and $5m.
(h)Apart from Fiona’s brother, Gregory Dolman, and Mrs Dolman, none of the other beneficiaries nominated in the deceased’s will had any claim on his bounty or demonstrated need.
In all these circumstances, I am of the opinion that the estrangement between Fiona Dolman and the deceased is not a matter that prevents Fiona Dolman from satisfying the jurisdictional question. On the contrary, in my opinion, the totality of the circumstances compels a finding that the jurisdictional question should be answered in Fiona Dolman’s favour.
In my view, therefore, Fiona Dolman’s appeal should succeed. The parties accept that in such circumstances this Court should proceed to determine the provision that should, in that event, be made for Fiona Dolman.
The provision that should be made for Fiona Dolman
In determining this issue, I take into account the consideration that an estrangement between father and child may well reduce the moral claim that the child might have to maintenance, support or advancement in life (see Re Young (decd); Young v Young [1965] NZLR 294 at 301; Goodchild v James (1994) 13 WAR 229 at 238. Compare the effect of an estrangement between husband and wife which does not lead to divorce; Re Clissold [1970] 2 NSWR 619 at 621-622; see also Re Mercer [1977] 1 NZLR 469 at 472 to 473 (confirmed on appeal Re Mercer [1978] 2 NZLR 514)).
Further, I bear in mind that it is not for the Court to rewrite the will (Scales at 19) and an order for provision under the Act should interfere as little as possible with the way in which the deceased exercised his testamentary discretion.
Mr Grieve submitted that regard should be had to the fact that the relationship between the deceased and Gregory Dolman was not strong, that Gregory Dolman’s conduct as regards the deceased was subject to criticism, and that the other beneficiaries of the will had neither any moral claim nor any need. I accept that these matters are not without relevance but, in my view, the main consideration is to determine Fiona Dolman’s need and to attempt, reasonably, to satisfy that need (having regard to the size of the estate) and, in doing so to interfere as little as possible with the wishes of the deceased as testator.

There is evidence that supports a finding that Fiona Dolman’s reasonable need is as follows:
Acquisition of unit:  $500,000
Fees for an interior design course to
enable her to qualify as an interior
designer:  (about)   $ 35,000
Year’s travel:  $ 20,000
Two years living expenses while
studying:  $ 50,000
Buffer or cushion:  $ 50,000
  Total:  $655,000
By s 11(1)(a)(i) of the Act the Court is empowered to order a provision to be made by way of a lump sum. I take into account the provision the Master made for Mrs Dolman and the amounts that would be left for the other beneficiaries (including Gregory Dolman). I propose that a lump sum by way of a legacy be provided out of the estate to Fiona Dolman in the sum of $655,000. Otherwise, there should be no alteration to the will.
As is becoming a regular practice, no real attention was paid by the parties to questions of costs. Indeed, if the order made by the Master in relation to Fiona Dolman’s costs liability has been entered, that is not apparent from the appeal books. If the orders for costs are not in a form acceptable to the parties, they have liberty to file consent orders as to any proposed variations within 7 days. If agreement cannot be reached, draft orders and written submissions in support thereof should be filed by 12th January 2006.
Accordingly, I propose the following orders:
(A)As regards the executor’s appeal (CA 40456/05)
(i)The executor’s appeal is dismissed.
(ii)Mrs Dolman’s costs are to be assessed on a party and party basis and the executor’s costs on an indemnity basis.
(iii)         The costs so identified are to be paid out of the estate.
(B)         As regards Fiona Dolman’s appeal (CA 40564/05)
(i)           The appeal is upheld.
(ii)The order made by the Master dismissing her claim and the costs order he made are set aside.
(iii)Fiona Dolman is to receive a lump sum payment by way of a legacy of $655,000 from the estate.
(iv)         Otherwise the provisions of the will remain unaltered.
(v)The estate is to pay Fiona Dolman’s costs of the hearing before the Master and the costs of her appeal.
(vi)Fiona Dolman’s costs are to be assessed on a party and party basis.
(vii)The executor’s costs are to be paid out of the estate on an indemnity basis.
(viii)The executor of the estate is to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified.
TOBIAS JA: I agree with Ipp JA.
BASTEN JA: I agree with Ipp JA.

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LAST UPDATED: 12/12/2005