Pulitano v Pulitano - [2019] NSWSC 1688

Supreme Court

New South Wales

Medium Neutral Citation: Pulitano v Pulitano [2019] NSWSC 1688
Hearing dates: 22, 23 and 24 May 2019. Last written submissions received 7 June 2019.
Date of orders: 29 November 2019
Decision date: 29 November 2019
Jurisdiction: Equity
Before: Henry J
Decision:
(1) Pursuant to s 59 Succession Act 2006 (NSW), the plaintiff to receive a lump sum of $470,000 out of the estate of the late Rocco Pulitano (deceased).
(2) Unless either party makes an application for a different costs order within 14 days, the plaintiff’s costs of the proceedings, calculated on an ordinary basis, and the defendant’s costs of the proceedings, calculated on an indemnity basis, be paid out of the estate of the deceased.

Catchwords: SUCCESSION – family provision – claim by adult son – evidence of difficult relationship between plaintiff and deceased before estrangement – evidence that plaintiff subjected to physical abuse by the deceased during childhood – scope of the deceased’s moral obligation to provide for the plaintiff – where plaintiff has significant financial need – where plaintiff has experienced periods of drug addiction and incarceration – where plaintiff had made past contributions to estate – causes of estrangement – no competing claims on the estate – where deceased had offered to help the plaintiff prior to estrangement
Legislation Cited: Succession Act 2006 (NSW), ss 59, 60, 61, 78, 79, 80, 81, 82, 85, 88, 100
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Burke v Burke [2015] NSWCA 195
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Ford v Simes [2009] NSWCA 351
Gail Patricia Stone v Michael John Stone [2019] NSWSC 233
Gorton v Parks (1989) 17 NSWLR 1
Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843
Harris v Harris [2018] NSWSC 552
Jones v Dunkel (1959) 101 CLR 298
Keep v Bourke [2012] NSWCA 64
Litchfield v Smith & Tingate [2010] VSC 466
Newman v Newman [2015] NSWSC 1207
Philpott v Pantos [2018] NSWSC 852
Poletti v Jones [2015] NSWCA 107
Re Filomena Rodi, deceased [2016] NSWSC 1696
Rogers v Rogers [2018] NSWSC 1982
Sammut v Kleemann [2012] NSWSC 1030
Sgro v Thompson [2017] NSWCA 326
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Slack-Smith v Slack-Smith [2010] NSWSC 625
Steinmetz v Shannon [2019] NSWCA 114
Underwood v Gaudron [2015] NSWCA 269
Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon [2003] HCA 48
Williamson v Williamson [2011] NSWSC 228
Category: Principal judgment
Parties: Anthony Pulitano (plaintiff)
Nelia Bayon-On Pulitano (defendant)
Representation:
Counsel:
J E F Brown w/ N Condylis (plaintiff)
B Oliak (defendant)
Solicitors:
Turnbull Hill Lawyers (plaintiff)
De Pasquale Lawyers (defendant)

File Number(s): 2017/00379670
Publication restriction: Nil

Judgment

In these proceedings, the plaintiff, Anthony Pulitano, claims provision out of the estate of his late father, Rocco Pulitano who died on 4 February 2017 (the deceased), pursuant to s 59 of the Succession Act 2006 (NSW).
The defendant, Nelia Bayon-On Pulitano, is the deceased's widow and second wife. She is the sole executrix and the beneficiary under the deceased’s last will made on 21 July 2016.
The plaintiff commenced these proceedings on 15 December 2017. It is not in dispute that he is an eligible person under the Succession Act and that the proceedings were commenced within time. The only issue in dispute is whether the plaintiff was left without adequate provision for his proper maintenance or advancement in life.
Without intending in any disrespect, in these reasons I refer to family members of the plaintiff and defendant by their first names.

Background facts

The following sets out a summary of relevant facts. Many of them are not in dispute. Where there are disputes, the following should be taken as the findings of the Court.
The plaintiff is the adult son of the deceased and the deceased's first wife, Giuseppina Facchi who is no longer alive.
The deceased and Giuseppina were married in Italy and migrated to Australia in 1965. They had three children together: Giovanni (known as John, born in 1961 and now deceased), the plaintiff (born in Italy on 27 June 1963) and Angela (born in Australia in 1971).
When the family first migrated to Australia they lived in rental properties, until the deceased bought property at Skelton Street, Leichhardt, where the family lived until 1980.
The deceased worked for many years as a linesman for PMG, the predecessor to Telstra. He also bought and renovated properties as investments. Between 1965 and 1976, Giuseppina worked at various factories.
During his childhood and adolescent years, the plaintiff attended various schools. He went to two primary schools in the local area but was expelled from both due to truancy and bad behaviour. In 1974, at around the age of ten, the plaintiff was sent to live at the Boystown Industrial School in Engadine where he remained for 18 months. He then returned to live with the family and attended Newtown High School and Leichhardt High School. The plaintiff left school when he was fourteen and a half years old and could not read.
After leaving school, the plaintiff lived at home with the family and worked at a variety of unskilled and manual labour jobs at a scrap metal yard, a metal roofing company, a tiling company and labouring at a pool company. The plaintiff paid $20 per week board to the deceased and also gave the deceased most of his wages. During this period, the plaintiff also helped his brother John run a blue light mobile disco on the weekends. The cash that John received from this work was also given to the deceased.
In 1980, the deceased sold the Skelton Street property and bought a shop and residence on Georges River Road, Croydon Park, where the family lived for a period before moving into rental accommodation in Croydon Park.
In 1981, following an argument with the deceased about accessing the money he gave the deceased, the plaintiff left home. The plaintiff met up with John who was residing in Kings Cross. The plaintiff obtained a job as a doorman at a nightclub. Between 1981 and 1983, the plaintiff resided in a variety of places in Kings Cross and also went back to live with his family for two periods totalling just over six months. Around this time, the plaintiff started taking drugs, which developed into an ongoing drug addiction.
In 1982, the deceased bought 10 Dean Street, Strathfield (the Dean Street property) where he, Giuseppina and Angela lived.
During the period from 1984 to 1987, the plaintiff lived in various places in Sydney. He resided at the Dean Street property for approximately one month in 1984 and at other times visited his mother there.
In 1988, the plaintiff was in prison at CIP Long Bay, Old Silverwater and Mannus Correctional Centre for a total of six months. The deceased visited the plaintiff in prison around three to four times.
In 1988, the deceased was convicted and received a six-month gaol sentence for domestic violence against Giuseppina. The deceased did not serve any gaol time because Giuseppina did not challenge the deceased’s appeal. Following this incident, Giuseppina and the deceased separated. Giuseppina moved out of the Dean Street property and lived in Punchbowl and then Bankstown with Angela. During 1988 and 1989, the plaintiff lived for periods with Giuseppina and Angela in Punchbowl and Bankstown.
In 1989, the plaintiff was incarcerated at Long Bay, Goulburn and MTC Long Bay for a total of nine months.
On 17 December 1989, John was killed in a fight. The plaintiff’s evidence is that this had a significant impact on him and resulted in an increase in his drug use.
In 1990, Giuseppina divorced the deceased and received a settlement in the sum of $349,700. In order to pay the settlement to Giuseppina, the deceased took out a mortgage on his properties which, by this time, also included 49-51 Helen Street, Sefton (the Sefton property), which comprised two shops and two two-bedroom apartments.
In 1990, the plaintiff moved to Melbourne with Giuseppina and Angela and lived with them for a time.
On 14 March 1990, while living in Melbourne, the plaintiff had his first daughter, Nicolette Pulitano.
In early 1991, the deceased married the defendant in the Philippines. They had met there in 1989 while the deceased was on holidays. They stayed in contact and spent time together when the deceased returned to the Philippines in June/July 1990 and then in November 1990. The deceased told the defendant that his family had abandoned him and that he had no property or other money.
The deceased returned to Sydney after their marriage. The defendant stayed in the Philippines until she was able to come to Australia. When the defendant arrived in Sydney on 5 April 1991 she and the deceased lived in a granny flat at the Dean Street property as the main house was leased to pay for the deceased’s mortgage.
The deceased and the defendant had two children together:

Rocco Pulitano (Rocco Jr), born 18 August 1991; and

Marinella Pulitano, born 2 June 1993.

At the time the deceased and the defendant married, the plaintiff was serving another gaol sentence and was not aware the marriage had taken place.
On 27 June 1991, while living in Melbourne, the plaintiff married Lisa. They had four children together:

Alessandro (Alex) Pulitano, born 15 January 1992;

John Pulitano, born 20 March 1995;

Danniel Pulitano born 2 January 1997; and

Christopher Pulitano, born 13 October 2003.

In July 1992, the plaintiff invited the deceased to Melbourne for his eldest son’s baptism. The deceased and the defendant drove to Melbourne to attend.
In late 1992, the plaintiff and his family were living in Sydney and they spent time with the deceased and the defendant.
From December 1992 to December 1993, the plaintiff served another prison term at Manus Correctional Centre in New South Wales.
Sometime in 1994, the plaintiff visited the deceased at the Dean Street property. He and the deceased got into a fight during which the plaintiff hit the deceased in the eye and the deceased broke the plaintiff’s car window. The police were called but the plaintiff declined to press charges against the deceased. The defendant’s evidence is that the deceased took steps to obtain an apprehended domestic violence order (ADVO) against the plaintiff but did not pursue it because he did not know where the plaintiff lived.
In July 1999, the plaintiff, Lisa and their son Danniel visited the deceased at the Dean Street property. At the end of the visit, the plaintiff and the deceased had an argument. The deceased subsequently made a report to the police that he thought the plaintiff was trying to sell him a gun and he feared for his life. The plaintiff denies trying to sell the deceased a gun or threatening him in any way.
In May 2001, while living in Melbourne, the plaintiff began voluntary counselling sessions with a psychologist, Maria Mercuri, which he continued every week for the next seven years. Around this time, the plaintiff started on a methadone program and reduced his drug use. He also became involved in a business selling wigs and hair replacement techniques for men called the Australian Hair Assessment Centre in 2006.
On 21 July 2007, Giuseppina died which led to a relapse in the plaintiff’s drug use. He also lost his business. Under Giuseppina’s will, Angela was to inherit the entire estate. Following a challenge to the will, the plaintiff received a settlement of $37,000.
In August 2007, the plaintiff, Lisa and their children moved to Sydney and lived for a time with the plaintiff’s Uncle Vince, the deceased’s brother. Around this time, the plaintiff had a brief conversation with the deceased.
During 2008 and 2009, the plaintiff, Lisa and their children lived for periods in Sydney and Melbourne, before returning to live in Sydney in July 2009.
In 2009, the defendant, the deceased, Rocco Jr and Marinella moved out of the granny flat and into the house at the Dean Street property.
Between 2010 and 2011, the deceased’s anger issues escalated and he became more physically abusive towards the defendant. Following an incident of physical violence by the deceased on the night of 5 July 2011, the defendant was issued with an interim ADVO based on a false allegation by the deceased that the defendant had pushed him to the floor. The defendant moved out of the Dean Street property and into rented premises at Sans Souci with her children. In September 2011, the ADVO proceedings were dismissed.
In December 2011, the deceased and the defendant separated. They entered into a financial settlement agreement pursuant to which the deceased retained the Dean Street and Sefton properties, as well as property at Croydon Park property which he subsequently sold. The defendant obtained properties at Clement Street, Strathfield (Clement Street property) and at Hampden Road, Lakemba. The Clement Street property is located directly behind the Dean Street property and connected to it by a gate.
Sometime in January 2012, the defendant, Rocco Jnr and Marinella moved into the Clement Street property. The defendant started working in the compliance department at the Inner West Council five hours per day. From around March 2012, she started cooking and cleaning for the deceased and spending time with him at the Dean Street property.
In August or September 2012, the plaintiff and the deceased reinitiated telephone contact while the plaintiff was at his Uncle Fil’s house, the deceased’s brother. During the call, the deceased told the plaintiff that he had just paid out the defendant and was in a position to help him. The deceased also raised the prospect of the plaintiff completing construction of a partially built house at the back of the Dean Street property in which the deceased said the plaintiff and his family could live.
During the period from September 2012 to June 2013, the deceased and the plaintiff were in regular contact and spent time together on significant occasions, such as birthdays, Christmas, New Year’s Eve and on Australia day. The deceased and the plaintiff continued to discuss the construction of the house at the back of the Dean Street property and the deceased showed the plaintiff and Lisa plans of what he intended to be built.
In mid to late 2013, the plaintiff and the deceased had an argument during a telephone conversation. They ceased contact and did not speak again until June 2015.
In January 2015, the plaintiff, Lisa and their children moved to Melbourne with the intent to stay permanently as it was more affordable for them.
On 20 June 2015, the plaintiff called the deceased after being told by his Uncle Fil that the deceased wanted to speak to him. They had another discussion about the deceased making land at the back of the Dean Street property available for the plaintiff and his family to live after completing construction of the house. The deceased and the defendant had numerous further phone calls in late June and early July 2015.
Between 23 and 26 July 2015, the plaintiff, Lisa and two of their children were in Sydney and the plaintiff and Lisa spent time with the deceased and the defendant. The deceased and the plaintiff discussed the prospect of the plaintiff and his family moving back to Sydney to live and the plaintiff building the house at the rear of the Dean Street property.
On 29 July 2015, the plaintiff travelled to Sydney and stayed with the deceased for four days at the Dean Street property. During that time, the plaintiff inspected a property to rent at Concord.
Following the visits in July and his discussions with the deceased, the plaintiff decided to relocate with his family back to Sydney. I accept the plaintiff’s evidence that he did so relying on what he considered to be the deceased’s promise that the plaintiff and his family could live in the house that was to be built at the back of the Dean Street, despite being warned by his Uncle Fil to get something in writing from the deceased first.
On 8 August 2015, the plaintiff, Lisa and their children moved to Sydney. They subsequently signed a six-month lease on a house in Concord into which they moved.
On 18 August 2015, the deceased, the plaintiff and the defendant attended a meeting with a solicitor, Peter Ronis, to discuss options for documenting the plaintiff’s position in respect of the land at the back of the Dean Street property and the house that was to be built. Among the options discussed were the plaintiff becoming a part owner of the Dean Street property and the deceased recognising the plaintiff’s interest to part of the property in his will. During the meeting, the plaintiff stated that he did not have the money to complete the building of the house nor have equity to get a loan.
Later that day, the plaintiff went to the Dean Street property to collect some goods. The plaintiff and the deceased had a conversation during which the deceased stated that he would not pay the build costs for the house and expected the plaintiff to do so. They also discussed how the plaintiff was going to afford the cost of completing the build of the house on the Dean Street property and what the plaintiff said he had been promised. The plaintiff’s evidence is that he believed the deceased had promised to pay up to $200,000 to complete construction of the house in addition to giving him the land at the back of the Dean Street property.
On 19 August 2019, the plaintiff called the deceased and they spoke for about two hours. They had an argument about the building of the house and what the plaintiff said the deceased had promised him, which led to the deceased calling the police. Lisa and Nelia also spoke around this time. On the evening of 19 August 2015, the plaintiff was served with an ADVO taken out by the deceased.
On 27 August 2015, the plaintiff appeared in court for the hearing of the ADVO and it was dismissed.
On 2 September 2015, the plaintiff made a report at the Auburn police station about past physical abuse the plaintiff had experienced from the deceased as a child. The police do not appear to have taken any steps to investigate the plaintiff’s allegations.
Following the call on 19 August 2015, the plaintiff and the deceased had no further contact until 21 March 2016, when the plaintiff called the deceased. The call lasted for over an hour. During the call the plaintiff expressed his anger at having relocated his family to Sydney based on what he believed had been the deceased’s promise regarding the Dean Street property and the deceased made comments about the plaintiff’s mother to which the plaintiff took objection. The plaintiff threatened to sue the deceased for his past abuse and the broken promise and also called the deceased “an animal” and “a paedophile”.
On 23 March 2016, the plaintiff was served with an ADVO taken out by the deceased based, in part, on an allegation that the plaintiff had threatened to kill the deceased during the phone call on 21 March 2016. The plaintiff did not contest the ADVO application which had the effect that he was prohibited from contacting the deceased for a period of 12 months.
On 17 June 2016, the plaintiff commenced proceedings against the deceased in the Equity Division of the Supreme Court seeking a declaration of an equitable interest in the Dean Street property, medical expenses for physical, emotional and psychological abuse by the deceased and the recovery of his “forced savings” (Supreme Court Proceedings).
At around this time, the plaintiff also commenced proceedings against the deceased in the Local Court at Burwood claiming there was an enforceable agreement between them for the deceased to fund the building of a house for the plaintiff at the back of the Dean Street property up to an amount of $200,000 (Local Court proceedings). In his defence, the deceased admitted that he proposed to the plaintiff that on completing the partially constructed house at the back of the Dean Street property (which the plaintiff was to pay for), the plaintiff and his family could reside there rent free.

On 27 August 2016, the deceased was admitted to hospital for treatment for prostate cancer. The plaintiff was unaware that the deceased had been diagnosed with cancer at the time he commenced the Supreme Court and Local Court proceedings.
On 28 September 2016, the deceased instructed the defendant to transfer $500,000 from his bank account to hers and she did so.
On 2 November 2016, the deceased was scheduled to the Concord centre for mental health after threatening to kill himself.
On 22 and 23 January 2017, the Local Court proceedings were heard. The deceased gave evidence that he wanted the plaintiff to build a house in the back of the Dean Street property and was going to let him and his family live there. The Court found there was no enforceable agreement between the plaintiff and the deceased and that the plaintiff had chosen to move from Melbourne to Sydney based on inferences he had drawn as to the offer of payment of up to $200,000 from the deceased. The Court dismissed the plaintiff’s claim and ordered him to pay the deceased’s costs.
On 31 January 2017, the plaintiff and the defendant (on behalf of the deceased), attended mediation in relation to the Supreme Court proceedings. While there, the defendant was informed that the deceased needed to go into palliative care.
On 4 February 2017, the deceased died at Concord Hospital.
Prior to the deceased’s death, Lisa sent a text to the defendant asking whether the plaintiff could come and see the deceased. The defendant did not reply. One of the plaintiff’s sons, Danniel, went to the hospital to visit the deceased.
The plaintiff and his family attended the deceased’s funeral on 10 February 2017.
On 27 March 2017, the Supreme Court proceedings were dismissed by consent with no order as to costs. This had been agreed following the mediation. It was also agreed that the deceased would not press his costs in the Local Court proceedings.

The deceased’s will and family provision claims

Under the deceased’s last will dated 21 July 2016, the defendant was appointed as the deceased’s sole executrix and sole beneficiary (clause 3).
There was provision in the deceased’s will that Rocco Jr and Marinella were to be appointed as the deceased's executors and trustees and for them to share in his estate if the defendant were not to survive the deceased for 30 days (clause 4). The will did not make any provision for the plaintiff or Angela, nor was there any reference to them in the will.
On 24 May 2017, the defendant was granted probate. In the inventory of property attached to the probate document, the property owned solely by the deceased consisted of the Dean Street property valued at $1.5 million and the Sefton property valued at $1.1 million. The total gross value of the deceased state was, at that time, estimated to be $2.6 million. There were no liabilities disclosed in the inventory of property.
On 15 December 2017, Anthony commenced these proceedings. Around the same time, Angela also commenced family provision proceedings (2017/308396) seeking an order that provision be made for her maintenance, education and advancement in life out of the estate and/or the notional estate of the deceased.
In February 2018, not long after an unsuccessful joint mediation, the defendant settled Angela's family provision proceedings for $280,000 plus $46,793.35 for costs.

The evidence

Before turning to the issues raised by Anthony’s claim, it is convenient to deal with some submissions made in relation to the evidence of the parties.

The plaintiff’s evidence

The defendant submits that aspects of the plaintiff’s evidence are unsatisfactory.
She contends that his answers in cross-examination were often not responsive and he appeared to have “talking points” for which he was careful and concise in giving evidence, whereas on other matters he appeared to speak freely and confidently. She also submits that his affidavits were full of self-serving opinions and conclusions and did not reflect the speaking style of the plaintiff when he was cross-examined. The defendant did not refer to any particular examples in support of these submissions.
To my observation, the plaintiff attempted to answer the questions put to him in cross-examination honestly and genuinely and I do not accept the defendant’s characterisation of his evidence as generally self-serving opinions or based on “talking points”.
The defendant also identified what she contended were “glaring” inconsistencies between the plaintiff’s affidavit and cross-examination evidence. I also do not accept that contention.
The reference to the plaintiff’s affidavit evidence which referred to his “wage cheque” is not, in my view, inconsistent with his evidence in cross-examination that he was being paid mostly in cash in circumstances where he explained that “wage cheque” meant his wages and his affidavit evidence had made clear that most of his wages were received in cash (at [71], plaintiff’s affidavit dated 24 January 2018).
As to his evidence during cross-examination regarding his conversations with Uncle Fil, while there was some initial confusion about the year in which they took place, the plaintiff’s evidence about what was discussed was generally consistent with his evidence in the Local Court proceedings, being that they discussed the deceased’s offer for the plaintiff to build and live at the back of the Dean Street property and Uncle Fil recommended that the plaintiff ensure the deceased drew up some paperwork before he moved back to Sydney.
The plaintiff’s admission in cross-examination that he could not recall a conversation set out in his affidavit word for word does not lead me to conclude that, overall, the plaintiff’s evidence was unreliable.

The defendant’s evidence

There is also an issue between the parties as to the truthfulness and consistency of the defendant’s evidence. The plaintiff asserts that her evidence in cross-examination was often inconsistent, whereas the defendant’s counsel submits that she came across as a truthful witness, being confident to give evidence on the matters that she did know and honest in admitting when she did not know things.
During cross-examination the defendant was, at times, confused and required questions to be repeated or clarified. I accept that this was likely due, in part, to English not being the defendant’s first language. But I also accept the submission that the defendant’s evidence was inconsistent in a number of respects and that she sometimes appeared unwilling to acknowledge facts and answer questions in ways which might not assist her case, such as about the deceased’s character and conduct, aspects of their relationship and his attitude towards their children.
For example, the defendant initially stated that the deceased was always truthful and yet accepted that he lied to the police in July 2011 when he made the complaint that the defendant was choking him in support of the ADVO he took out against her. The defendant rejected questions put to her about the deceased’s physical interactions with their children, later accepting that he hit Rocco Jnr to make sure that his son “is in the right way” and they treated their “father good”. She said she didn’t understand a question that the deceased considered that “children should be seen and not heard”, even though those words were taken from her own affidavit. She also gave answers in very definite terms about the timing of certain events (such as visits by the plaintiff to the Dean Street property and calls made to her by Lisa), which proved to be incorrect based on documentary records and evidence as to the dates when the plaintiff was in gaol.
The defendant’s evidence that the deceased and the plaintiff would not have discussed the building of a house at the back of the Dean Street property in 2012 was also not plausible when she accepted in cross-examination that she couldn’t know because she was at work and therefore did not know whether they spoke. Her evidence that the deceased did not want to help the plaintiff or provide him with anything and that she did not ever discuss the deceased’s testamentary intentions is also at odds with her evidence in cross-examination that the deceased “wants to give land [to the plaintiff] because it’s hard to buy a property” (T267:25), her evidence that the option of providing the plaintiff part of the Dean Street Property in the deceased’s will was discussed at the meeting with the solicitor on 18 August, her evidence that the deceased wanted to help the plaintiff and that, as “a father and a son”, they had some love for each other (T270:43-T271:7).
There was also a challenge made to the defendant’s evidence in cross-examination that her separation from the deceased ended in March 2012, when she says she moved back into the Dean Street property to live with the plaintiff.
I accept the plaintiff’s submission that the deceased’s 2015 tax return and his statement to the police on 23 March 2016, which suggest that the deceased was living alone and was still separated at those times, casts doubt on the defendant’s evidence as to whether, and if so when, she ceased to be separated from the deceased. The inconsistencies in the defendant’s evidence (particularly on the timing of certain matters) and the statements made to the plaintiff and Lisa in August/September 2012 by the deceased to the effect that he was separated, also creates doubt.
I do not accept the defendant’s evidence that she and the deceased ceased to be separated from as early as March 2012. I accept that they remained married and that the defendant spent time with the deceased at the Dean Street property when she was not working, including spending nights with him, from around that time, but find that they did not live together on a full-time basis until later, most likely in 2015 when she was caring for the deceased during his cancer treatment.

Jones v Dunkel submission

The plaintiff submits that the Court should draw an inference pursuant to Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) from the defendant’s failure to call Rocco Jnr and Marinella to give evidence. He argues that this failure should lead the Court to draw adverse inferences on matters relating to the character and conduct of the deceased, the relationship between the defendant and the deceased, and conversations alleged to have occurred between Rocco Jnr and Marinella and the plaintiff.
The rule in Jones v Dunkel provides that an inference may be drawn in relation to an unexplained failure to call evidence where a party is required to explain or contradict something
I accept that Rocco Jnr and Marinella are in the defendant’s camp and they would be expected to have knowledge going to the matters raised by the plaintiff. But I do not consider it necessary to draw adverse inferences from their failure to give evidence at the hearing, as contended by the plaintiff.
There is already significant direct evidence of the violent and controlling character and conduct of the deceased, including his violence and control over the defendant and their children. The defendant accepts that the deceased abused the plaintiff in the past. Further evidence from Rocco Jnr or Marinella is not required to explain or contradict something in respect of those matters. I have also made findings about the defendant’s evidence as to her separation from the defendant.
As to the conversations the plaintiff says he had with them, whether Rocco Jnr and Marinella were content when told by the plaintiff that the deceased had offered the plaintiff the back of the Dean Street property to build a house is not, in my view, material to the plaintiff’s claim. Nor does it call for explanation. What is significant is the existence of the deceased’s offer which, I accept, was made and relied on by the plaintiff.

Ms Mercuri’s reports

The plaintiff relies on two reports prepared by his psychologist, Ms Mercuri. The first report is dated January 2008 and is annexed to the plaintiff’s affidavit dated 24 January 2018 (2008 report). The second is an updating report dated 5 May 2019 and is annexed to the plaintiff’s updating affidavit dated 14 May 2019 (2019 report).
At the hearing, I admitted the reports over the defendant’s objections that they were inadmissible because they were prepared for legal proceedings or as hearsay having regard to the terms of paragraph 21(f) of Practice Note SC Eq 7 (PN 7).
The defendant raises further objections to the reports in her closing submissions. She submits that they go beyond the scope of 21(f) of PN 7 because the conclusions in the reports are based on statements provided by the plaintiff which is not evidence “in support of the condition alleged” and that medical reports based on histories and complaints of the patient should not be treated as independent evidence where the credibility of the patient is an issue in the proceedings. As such, she contends the Court should not assume that the contents of Ms Mercuri’s reports of themselves as evidence of the disabilities alleged by the plaintiff, citing Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon [2003] HCA 48 at [45].
In Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon [2003] HCA 48, the High Court upheld the primary judge’s approach of not considering the respondent’s medical reports as corroborating evidence of the respondent’s condition because the reports were almost entirely based on the respondent’s subjective reporting of her symptoms. But that decision was made in circumstances where the primary judge had found that the respondent’s credibility was “effectively destroyed” after cross-examination and there was positive evidence refuting the respondent’s claim that she suffered from chronic fatigue syndrome (such as evidence of her horse riding, and drinking and dancing at a wedding).
The position in this case is very different. As noted above, I have found the plaintiff to be a largely credible witness. The defendant has also not adduced evidence to refute the plaintiff’s claim that he suffers depression, low self-esteem and trauma which stems from his past abuse. Rather, she submits that his current condition stems from his past drug addiction and criminal background.
I am also unpersuaded by the submission that the reports should be disregarded because they rely on the plaintiff’s statements to Ms Mercuri. It is inevitable that a report by a psychologist will be largely dependent on information provided by a patient, as will many other medical reports.
The defendant also submits that allowing the reports would be prejudicial because the January 2008 report was prepared over 10 years ago so cannot support any finding that Anthony is currently suffering from the conditions alleged, and the updating report was served just before the hearing and Anthony has not explained why it was not made available earlier. The defendant submits that the Court should assume that this was “a tactical forensic decision”, citing Newman v Newman [2015] NSWSC 1207 at [10] and [13]. I am also unpersuaded by that submission.
The defendant has been on notice that the plaintiff was going to rely on the 2008 Report since January 2018, when his first affidavit was served.
As to the May 2019 updating report, I accept that the plaintiff could, and should, have provided updating evidence from Ms Mercuri earlier. However, this is not a situation where leave was given during the hearing to re-open the plaintiff’s case, as in Newman v Newman [2015] NSWSC 1207.
The 2019 Report is an update of and consistent with the contents of the 2008 Report. The defendant did not assert that the 2019 Report raised new matters. The defendant did not identify what she would have done differently had the 2019 Report been served earlier other than objecting on the grounds that she has already.
The defendant could have given reasonable notice to the plaintiff that strict proof was necessary under PN 7 in respect of both reports. There is no evidence that the defendant made such a notification, rather she raised an objection just prior to the hearing. I do not accept that to be sufficient notice in this case, particularly in relation to the 2008 Report.
The purpose of PN 7 is to enable certain matters to be proved in the manner stated, that is to say, informally: Gail Patricia Stone v Michael John Stone [2019] NSWSC 233, per Hammerschlag J at [97]. In my view, it would be antithetical to the purpose and policy of PN 7 to uphold the defendant’s objections to Ms Mercuri’s reports, particularly when one was served well in advance of the hearing.
As noted by plaintiff’s counsel, it was open to the defendant to request Ms Mercuri to be made available to be cross-examined or have the plaintiff seen by their own psychologist. She did not do so.
To my mind, the defendant’s objections based on the time elapsed since the 2008 Report and the fact that both are based on what the plaintiff told Ms Mercuri goes to the question of what weight the Court should give to them, rather than whether they are admissible.
The 2008 report is based on information derived from the plaintiff’s psychotherapy sessions with Ms Mercuri over seven years. It appears to have been prepared for the purposes of an external party determining whether further punishment may be required in respect of an offence committed by the defendant in 1988. Ms Mercuri concludes that further punishment would not contribute positively to his rehabilitation.
In coming to her conclusion, Ms Mercuri recites the plaintiff’s history, including his childhood while he lived with the deceased. It refers to past abuse from the deceased, reports made to the department of Human Services by the plaintiff’s school, his assignment to a child protection officer, his lack of education, his past drug taking, his current family circumstances, his employment history and the issues he presented with and his progress. The 2008 Report states that, from Ms Mercuri’s clinical observations, the plaintiff has improved in many respects, including a decrease in anxiety, more awareness of his feelings, less hostile and aggressive, an increased ability to deal with negative emotions and a more positive outlook on the future.
Relevantly, Ms Mercuri’s opinion, as contained in the 2008 report, is that “the severe physical abuse that [the plaintiff] suffered as a child impaired his ability to be ‘available’ to learn. As a result his cognitive skills remain largely undeveloped.” She also concludes that the “lack of proper care, nurturing, guidance and support, encouragement and unconditional love that a child requires to develop a strong sense of self was virtually non-existent for [the plaintiff]”, and that he is “a traumatised individual”.
The 2019 report is based on four Skype sessions between Ms Mercuri and the plaintiff from April to May 2019. It notes that the plaintiff had stated that he had been experiencing psychological distress and depression in dealing with matters relating to the deceased's estate and that he had reconnected with her to assist him with those matters. The 2019 report refers to the issues the plaintiff initially presented with, his employment and drug history and what had happened since that time, including referring to the “promise” by the deceased the move to Sydney and the gifting of land and money to build a house. Relevantly, Ms Mercuri’s opinion is that the plaintiff is a “traumatised individual… He suffers from depression, low self-esteem, and has a poor self-concept…. the direct result of the trauma inflicted on him as a child”. She also opines that the plaintiff’s years of psychotherapy have assisted him to manage relationships and that he has a healthy support system with his wife and children.
The defendant challenges the conclusions in the 2008 and 2019 Reports that the plaintiff’s trauma, depression, low self-esteem, anxiety and inability to learn result from his childhood abuse. She contends that the plaintiff’s current circumstances are the direct result of his drug addiction and life choices, rather than the conduct of the deceased. She contends the Court should not take into account the conclusions in the reports at all. I disagree. The Reports are useful evidence as they provide an independent psychologist’s view of the impact of the deceased’s conduct on the plaintiff and how it is causally connected to his past and current disabilities when that word is considered in a broad sense.

The conclusions in the Reports are also consistent with the plaintiff’s own evidence which, in summary, is that he has faced difficulties throughout life starting with the abuse and demands he experienced at the hands of his father and his lack of education and opportunities. Even absent the Reports, I consider it would be open to the Court to draw some nexus between the deceased’s treatment of the plaintiff and his current circumstances and conclude that the plaintiff’s needs are not caused by his subsequent drug use and life choices alone.
The 2019 Report also goes on to comment that Ms Mercuri considers the plaintiff would benefit from some type of acknowledgement and compensation in respect of what he suffered from the deceased. That comment is irrelevant to the plaintiff’s application for provision.

The plaintiff’s application for provision

The Court may make an order for the plaintiff’s provision out of the deceased’s estate if it is satisfied, having regard to the facts known to the Court at the time the order is made, that adequate provision for his proper maintenance, education or advancement in life has not been made by the deceased’s will: s 59(1)(c) Succession Act. If the Court is so satisfied, it may make such order for provision out of the deceased’s estate as the Court thinks ought to be made for the plaintiff’s maintenance, education and advancement, having regard to the facts known to the Court at the time the order is made: s 59(2) Succession Act.
Section 60(1)(b) of the Succession Act provides that the Court may have regard to a range of matters set out in sub-section (2) for the purposes of determining whether to make a provision order and the nature of such an order.
The Succession Act does not prescribe the circumstances that constitute adequate provision for the proper maintenance, education and advancement in life, nor does it give greater or lesser weight to any of the various matters set out in s 60(2) to which the Court may have regard for the purpose of determining whether to make a provision order and the nature of any such order.
A multifaceted evaluative approach that takes account of all the factual circumstances relevant to the application is required in order to determine whether adequate provision was made for the proper maintenance and advancement in the plaintiff’s life: Sgro v Thompson [2017] NSWCA 326 at [6] and [66]-[67]; Harris v Harris [2018] NSWSC 552 at [30]-[31].
The relevant circumstances will include a consideration of the plaintiff’s needs, although there is a distinction between needs and adequate provision. Whether or not adequate provision has been made is not to be determined simply by a calculation of financial needs. Any consideration of the plaintiff’s needs also requires consideration of the size the estate and the claims of others on it: Chan v Chan [2016] NSWCA 222 at [22].

Notional estate

In addition to a claim for provision under s 59, the plaintiff's summons also seeks orders pursuant to ss 78, 79, 80, 81, 82 and 85 of the Succession Act designating as notional estate such property as the evidence may disclose.
The Court must not make a notional estate order unless it is satisfied that the deceased's estate is insufficient for the making of the family provision order or any order as to costs that the Court is of the opinion should be made: s 88(b) Succession Act.
The evidence discloses distributions from the deceased’s bank account to the defendant just prior to the deceased’s death, which have had the effect of reducing the quantum of the actual estate and which the parties accept is notional estate. Although I refer to this evidence below, it is not necessary to deal, in more detail, with the applicable parts of the Succession Act relevant to the designation of such property as notional estate as the value of the deceased's actual estate is sufficient to make the provision order sought by the plaintiff him and any order as to costs.

Some principles applicable to the plaintiff’s application

Before dealing with the matters under s 60(2) of the Succession Act, I make some general observations about the plaintiff's application and the position of the defendant.
First, as there is no predisposition for or against the making of orders for provision for adult children, the plaintiff’s application must be dealt with on its merits based on the evidence before the Court: Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 at [166]-[169]; Steinmetz v Shannon [2019] NSWCA 114 at [37].
The guidelines in relation to claims by adult children that have developed in the authorities provide a “useful touchstone” and give assistance because they constitute a reflection of community values which assists with decision-making: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [19] and [67], quoted with approval by Brereton J in Steinmetz v Shannon [2019] NSWCA 114 at [106]-[108].
The guidelines relevant to an application for an adult child were set out by Hallen J in Rogers v Rogers [2018] NSWSC 1982, at [207], and I respectfully adopt his Honour’s reasons set out there as follows:

“(a) The relationship between parent and child changes when the child attains adulthood. 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, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation”: Taylor v Farrugia [2009] NSWSC 801 at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109].
(c) Generally, also, “the community does not expect a parent to look after his or her children for the rest of [the child’s life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute”: Taylor v Farrugia at [58].
(d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; Taylor v Farrugia at [58].
(e) The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17].
(f) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149; [1979] HCA 2.”

Second, the defendant has chosen, as she is entitled to do, not to disclose her financial circumstances in this case. That does not mean the Court can disregard her interests, rather it means that the Court is entitled to infer that the defendant has no need for provision from the estate of the deceased.
As the sole beneficiary, the Court is to take into account that the defendant was the chosen object of the deceased’s testamentary bounty, a person with a legitimate claim on that bounty, and the person whose interest in the estate must bear the burden of the order made in favour of the plaintiff: Sammut v Kleemann [2012] NSWSC 1030 at [139]; cited with approval by Basten JA in Poletti v Jones [2015] NSWCA 107 at [23]; s 61(1) Succession Act.
It is also relevant that Rocco Jr and Marinella have not made an application for family provision relief. By virtue of s 61 of the Succession Act, their interests can be disregarded in determining the plaintiff's application for relief: Re Filomena Rodi, deceased [2016] NSWSC 1696, at [27].
Third, this is a case in which there are allegations of periods of estrangement between the plaintiff and the deceased and a hostile relationship in the period before the deceased’s death.
The term estrangement does not describe the conduct but the nature of the relationship which results from the attitudes or conduct of one or both of the parties: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [40].
In the case of estrangement between an applicant and a deceased, the Court will look to the apparent causes of the estrangement. If the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [49].
The Courts recognise that the causes of estrangement between an adult child applicant and a deceased are relevant factors to consider, but the existence of an estrangement is not determinative: Burke v Burke [2015] NSWCA 195 at [95] and [103].
Fourth, while there is evidence that the plaintiff suffered physical abuse as a child at the hands of the deceased, the purpose of the Succession Act is not to provide compensation for any past failure in terms of the deceased’s legal or moral duty to be a good and responsible parent. Nor is its purpose to punish or provide a legacy by way of damages for past abuse or immoral conduct by the deceased: Williamson v Williamson [2011] NSWSC 228 at [124] - [125].
That said, the Court may take into account the past conduct of the deceased where it provides an explanation for the current position of the plaintiff, including his mental state (if established), giving rise to additional needs. The deceased's past conduct and abuse is not irrelevant where it had the effect of depriving the plaintiff of opportunities in life or where there is some causal connection between it and the plaintiff’s need for provision: Williamson v Williamson [2011] NSWSC 228 at [127]; Litchfield v Smith & Tingate [2010] VSC 466 at [57].
I now turn to the relevant additional matters by reference to s 60(2) of the Succession Act.

The relationship between the plaintiff and the deceased: s 60(2)(a)

The plaintiff is the eldest surviving son of the deceased.
There is evidence, which I accept, that during the plaintiff’s childhood and adolescent years the plaintiff was subjected to regular physical abuse from the deceased, which involved whippings, beatings, being hit by objects, being hosed down and being chained up, as well as prolific verbal abuse (at [39] to [51], plaintiff’s affidavit dated 24 January 2018). The abuse from the deceased occurred at home and while working at his father's properties.
The nature and regularity of the abuse of the plaintiff at the hands of the deceased was not challenged and defendant’s counsel accepted, as a matter of fact, that there had been physical abuse to the plaintiff as a child (T288:39-42).
The plaintiff also gave evidence that he witnessed the deceased being verbally and physically abusive to Giuseppina and to his brother John.
The plaintiff’s evidence is that he was always frightened of the deceased and lived in fear and that the abuse affected his schooling as he could not pay attention.
The plaintiff’s evidence is that the deceased also expected the plaintiff to work long hours helping the deceased to renovate and maintain the deceased’s properties and to hand over most of the plaintiff’s wages on a regular basis.
The extent of the deceased’s abuse and his demands on the plaintiff reveals that the plaintiff experienced a very difficult childhood and which did not involve what would typically be described as a loving and harmonious father-son relationship. It was in that context, and following a verbal altercation with the deceased, that the plaintiff left home at seventeen and ultimately turned to drugs and criminal activity.
From the chronology set out earlier, it is apparent that contact between the plaintiff and the deceased in the years after the plaintiff left home at the age of 17 was, at time, sporadic. While there was some contact between 1981 and 1992, it was infrequent and likely impacted by the allegations of violence towards the plaintiff’s mother, the breakdown of her marriage to the deceased, the plaintiff’s periods of incarceration and drug use, and then his move to Melbourne.
Between 1992 and August 2000, while the plaintiff was living in Melbourne, his contact with the deceased was minimal due to the distance and what the plaintiff described in his evidence as “disagreements”.
The reasons for the lack of contact between the plaintiff and the deceased between 2000 and 2007 appear to have been the plaintiff’s nervous breakdown and focus on his therapy. There is no evidence of any attempt at reconciliation by either the plaintiff or the deceased during that period.
Following 2007, contact between the plaintiff and the deceased was limited to a few telephone calls up until the two significant periods of reconciliation from August 2012 to mid-2013 and then again in mid-2015.
The first period of reconciliation between the plaintiff and the deceased commenced in August or September 2012. It is not clear on the evidence who initiated that reconciliation. The plaintiff gives evidence that he spoke to the deceased on the phone for around an hour whilst at his Uncle Fil's house (the deceased’s brother). I accept his evidence that the deceased asked the plaintiff to come and visit. The period of reconciliation coincided with the deceased having earlier separated from, and come to a property settlement with, the defendant.
During this period of reconciliation, the deceased said he wanted to see the plaintiff in a house and offered him the opportunity to finish construction of one at the rear of the Dean Street property for him and his family to reside in.
There is no dispute that the deceased and the plaintiff did not speak or see each other again from late 2013 to June 2015 following an argument sometime in mid-2013 over the telephone. It appears that this period of estrangement was caused by the plaintiff taking offence at comments made by the deceased regarding Lisa.
As to the period of reconciliation in 2015, it appears to have been initiated by the plaintiff having heard that the deceased wanted to talk to him. I accept the plaintiff's evidence that the deceased again raised the prospect of the plaintiff building the house at the back of the Dean Street property for him and his family to reside in and that the deceased encouraged the plaintiff to come to Sydney to see a lawyer and talk further about it. I also accept the plaintiff’s evidence that he moved his family to Sydney relying on what he was told by the deceased and what he understood had been a promise by the deceased to pay up to $200,000 to complete the construction of the house.
The relationship between the deceased and the plaintiff finally broke down following the arguments in August 2015 about what the plaintiff said the deceased had promised him and the deceased then taking out an ADVO, which was later dismissed. The plaintiff recognised that their relationship was over from then. As the plaintiff said in cross-examination (T93:33-44):

Q. So as at the time you left his house on 18 August 2015, did you want to continue to have a relationship with him despite what had happened in relation to the building of the house?
A. Well I didn't really know what was going on at that time and then after that the police come to my house and put the - served me with the restraining order, so there was nothing really more to think about was there?
Q. So at that time you knew that you're relationship with him was over?
A. Well yes.

Two weeks later the plaintiff reported the deceased’s past abuse to the police. The plaintiff did so because he told the deceased he would, because of what the plaintiff had done to his family and because he had considered taking action back in 2000 but had not gone through with it as he was focusing on his therapy (T94:6-14).
After August 2015, there was no further contact until 21 March 2016, when the plaintiff called the deceased to discuss his “broken promise”. It was in this call that the plaintiff threatened to sue the deceased and called him an “animal” and a “paedophile”. After that call the deceased took out the final ADVO against the plaintiff in April 2016 which the plaintiff did not contest because he was short of money and didn’t want to spend any defending the matter (T81:14-15).
The plaintiff accepted that he was angry with the deceased and that this anger led him to make commence the Local Court and Supreme Court proceedings. As the plaintiff said in cross-examination (T87:40-43):

A. I was angry that he made my whole family leave Melbourne, leave their jobs, their schools, their apprenticeships, to come here and then get a, a false restraining order put on us, instead of building a house, yes, I was angry.

The plaintiff commenced the Local Court and Supreme Court proceedings because he believed the deceased had “done the wrong thing” and that the deceased “should learn not to treat people in that way. Especially his grandkids, you know, and his…son…I didn’t need that kick in the head, so to speak” (T128:49 - 129:4). He accepted that he wanted to make the deceased “pay for what he…did” to the plaintiff (T135:11-12).
It is not in dispute that the plaintiff continued with the prosecution of the Local Court and Supreme Court claims when he became aware that the deceased was suffering from prostate cancer and undergoing treatment. The plaintiff's evidence is that he would not have commenced any of the proceedings had he known that the deceased was terminally ill (T85:10-14).
The final estrangement between the plaintiff and the deceased started in August 2015. While the plaintiff’s expectations as to what the deceased would provide for him led to their arguments, it seems to me that the deceased’s action in taking out an ADVO against the plaintiff in August 2015 contributed greatly to the breakdown of the relationship. Any chance of reconciliation appears to have ended when the defendant took out another ADVO in March 2016 following the heated call between the deceased and the plaintiff on 21 March 2016 and the plaintiff taking Court action.
To my mind, the abandonment of the relationship was ultimately a mutual one, with both the plaintiff and the deceased conducting themselves in ways that resulted in there being no prospect of any reconciliation or future and ongoing father/son relationship. No matter who or what caused this estrangement, it was a final, complete and permanent one, taking place 12 to 18 months before the deceased’s death and prior to the plaintiff knowing that the deceased had prostate cancer.

I accept that the final breakdown of the relationship involved hostility and vitriol on the part of the plaintiff. But, again, this was not one-sided with the deceased making allegations that the plaintiff made threats on his life, which the plaintiff denied. The plaintiff’s conduct should also be viewed in the context of the long fractured relationship between the deceased and the plaintiff, and the deceased’s past abuse.

The deceased’s obligations to the plaintiff and to the defendant: s 60(2)(b)

As the deceased’s widow, the defendant is the natural object of his will. While there is evidence that they had separated for a period of time, she had been his wife for a period of 27 years and had also suffered from his violent and controlling nature. There is also evidence that she was his carer while he was ill and in the last stages of his life.
Other than the repeated offer to the plaintiff to allow him to build at the back of the Dean Street property and live there with his family, there is no evidence that the deceased recognised any moral obligation or responsibility to provide for the plaintiff.

The deceased’s estate: s 60(2)(c)

Actual estate

The deceased's actual estate is comprised of the Dean Street and Sefton properties and a small amount of cash in the bank of approximately $3,700.
As noted above, the values attributable to Dean Street and Sefton properties at the time of the deceased’s death was $2.6 million.
There was no agreement between the parties as to the current value of the Dean Street and Sefton properties, with the plaintiff and the defendant both advancing updated (and different) valuations despite the Court having ordered the parties to appoint a joint valuer in the event of any dispute. No explanation was provided to the Court for non-compliance with this order.
The plaintiff’s curb side appraisal is dated 14 February 2019 and values the Dean Street property at $2.2 million and the Sefton property at $1.5 million. The plaintiff’s evidence also includes drive by appraisals undertaken in 2017, giving values of $2.5 million and $1.2 million respectively.
The defendant relies on an updated marketing opinion dated 17 March 2019 valuing the Dean Street property at $1.45 million and the Sefton property at $1.375 million. She also has evidence of drive by appraisals obtained in 2017 which values the Dean Street property at $1.775 million and the Sefton property at amounts ranging from $950,000 - $1.65 million.
Plaintiff's counsel urged the Court to adopt a valuation produced by averaging the appraisals and taking the midpoint where ranges were provided. Defendant's counsel relied on her market valuations in her submissions.
All of the valuation evidence is described as drive-by or curb side appraisals. I see no reason not to adopt the plaintiff’s approach of placing a value on the properties by averaging the valuations, although I do so based on the 2019 valuations only as they represent the likely current values. Taking this approach results in a value of $1.825 million for the Dean Street property and $1.4375 million for the Sefton property.
Accordingly, including the small sum of cash in the bank, I assess the value of the deceased’s actual estate to be $3,266,200.

Expenses, rental income and notional estate

The defendant contends that she has paid expenses in relation to the estate in the amount of $608,093.99 (at [12] closing submissions dated 31 May 2019). This amount includes $280,000 paid to settle Angela’s family provision claim (at [8] and annexure A to the defendant’s affidavit dated 21 May 2019).
Other than the funds paid in respect of Angela’s claim, it is not clear from the defendant’s executor affidavits or the defendant’s submissions what the amount of $608,093.90 comprises. Presumably, it is the net figure that the defendant claims as owing to her by the estate as it is different to other figures in the evidence as to the expenses paid in respect of the estate (see for example, the figure of $699,933.52, referred to as the total expenses paid from the estate in the most recent executor’s affidavit (at [12], defendant’s affidavit dated 21 May 2019), the figure of $921,861.14 which is the total sum of the amounts referred to in the expenses schedule annexed to the most recent executor’s affidavit (at annexure A, defendant’s affidavit dated 21 May 2019) and what would be the cumulative total of the expenses figures referred to in all of the defendants executor affidavits (at annexure C, defendant’s affidavit dated 5 July 2018, at [9]-[11], defendant’s affidavit dated 6 February 2019 and at [12], defendant’s affidavit dated 21 May 2019).
There are three issues with adopting the defendant’s figure of $608,093.99 as the amount for expenses owed to the defendant.
First, it is not clear whether it takes into account the value of the net income from the Sefton property since the deceased died. The evidence suggests that the Sefton property expenses have been less than the total rental income received. I am not satisfied that the defendant has adequately explained what the net position is or how it has been taken into account in her expenses calculation. The total rental income from the Sefton property since around the time of the deceased’s death appears to be in the range of $185,000 to $190,000 based on:

income in the amount of $54,281 being received for the period January to September 2017 (at [8] and annexure D, defendant’s affidavit dated 5 July 2018);

the ground floor shops at 49 and 51 Helen Street having been rented at $1828.75 and $1713 per month respectively (at [4], defendant’s affidavit dated 6 February 2019);

the residential units at 49 and 51 Helen Street having been rented at $390 per week and $360 per week respectively, save for the period between December 2018 to February 2019 for Unit 51 (T230:10-11 and at [4], defendant’s affidavits dated 6 February 2019 and 21 May 2019); and

the defendant’s evidence that the rental obtained from the Sefton property was approximately $82,000 per year (T.230:24).

There is evidence which indicates that expenses relating to the Sefton property have been paid from the rental income and total $104,765.33 (at [8], defendant’s affidavit dated 5 July 2018 and at [8] and annexure A, defendant’s affidavit 21 May 2019). But that leaves a net income of around $80,000 – $85,000 which is not dealt with in the defendant’s evidence, other than by statements to the effect that rental has been used to pay expenses for the properties and interest on her line of credit (at [8], defendant’s affidavit dated 5 July 2018 and [13] defendant’s affidavit dated 21 May 2019).
Second, it is not clear whether the expenses amount claimed is net of potential notional estate, which the defendant calculates to be $620,558.23, and which she seems to have used to pay for some expenses. The notional estate comprises two term deposit amounts held in St George Bank accounts in the amount of $600,000 and $20,558.23 which the deceased gifted to the defendant on 25 August 2016. The defendant’s evidence is that “none of the funds remain from the property” but no explanation is given as to where those funds have gone or how they have been used, other than asserting that they were distributed generally in respect of expenses that the defendant has incurred (at [8], defendant’s affidavits dated 6 February 2019 and 21 May 2019).
Third, the expenses amount of $620,558.23 includes the amount paid to settle Angela’s claim which, as the plaintiff’s counsel submits, represents distributed and, therefore, notional estate rather than an expense.
Suffice to say, the defendant’s submissions and evidence dealing with the estate’s expenses, the Sefton rental income and the notional estate was not satisfactory. It is the obligation of the executor to set out clearly the financial position of the estate in terms of expenses, income and any other liabilities. I am not satisfied that she has done so in support of a claim of $608,093.99 for expenses.
The defendant gave evidence that she has a line of credit which has been used to pay estate expenses, which now stands at $310,604.25 (at [11], defendant’s affidavit dated 21 May 2019). The plaintiff did not challenge this evidence or the proposition that the defendant has a claim for some expenses. He seemed to accept that the amount of $310,604.25 represented the amount outstanding for expenses (at T285:20, and [50] closing submissions in reply dated 6 June 2019).
Accordingly, I have concluded that the notional estate and rental income from the Sefton property have been used to pay expenses and Angela’s settlement amount, and is therefore not available for distribution, and that $310,604.25 is the amount of expenses which the defendant paid personally on behalf of the deceased’s estate.

Legal costs

In order to calculate the net distributable estate, it is also relevant to take into account the estimates given by the parties of their legal costs to completion of the proceedings.
The legal fees of the estate in relation to these proceedings on an indemnity basis are estimated to be $220,130.60. As at the date of the hearing, $110,130.60 had already been paid (which are included in the calculation of testamentary expenses claimed by the defendant as referred to above), leaving an amount of approximately $110,000 as an unpaid liability of the estate.
The plaintiff’s legal costs are estimated to be, on an ordinary basis, $170,000 (inclusive of GST) and $210,000 (inclusive of GST) on an indemnity basis. If he is successful with his claim, an uplift of 25% will be applied such that his costs on a solicitor/client basis are estimated to be $243,000 (inclusive of GST).
On the assumption that all parties’ costs are to be paid out of the estate, with the defendant’s costs (as executor) to be paid on an indemnity basis and the plaintiff’s costs to be paid on an ordinary basis, the total costs to come out of the estate are $280,000.

Net distributable estate

Taking into account the expenses paid by the defendant and the unpaid legal costs of the parties, I calculate the total net distributable estate to be $2,675,595.75.

The plaintiff’s personal and financial circumstances and financial needs, and that of Lisa: ss 60(2)(d), (e), (f) and (g)

Age and personal circumstances

At the date of the hearing, the plaintiff was 56 years old. He is married to Lisa, who was 45 years old.
The plaintiff and Lisa currently live in rented accommodation in Concord with their four sons and John’s fiancée, Amanda.
Alessandro, John, Danniel and Amanda are all employed on a full-time basis.
Christopher is in year 10 at Concord High School and is scheduled to complete his schooling at the end of 2021.

Assets and liabilities

The plaintiff and Lisa’s assets are as follows:

Description

Estimated $

Furniture and personal items

$8,500.00

Bank accounts

St George bank account

National Bank account

$1.08
$4.79

Jewellery

$2,000.00

TOTAL ASSETS

$10,505.87

The plaintiff and Lisa’s liabilities are as follows:

Description

Estimated $

Loan from Danniel Pulitano

Loan from John Pulitano

Loan from Alessandro Pulitano

$8,000.00

$13,150.00

$10,000.00

Outstanding loan owed to Danniel for credit line debt

$2,192.62

New South Wales Revenue

$10,873.00

Bank account over draft with St George bank

$72.18

TOTAL LIABILITIES

$31,222.18

The defendant contends that the Court should reject the plaintiff's claim that loans were made to him by his sons because there were no documents in support and because they were cash loans that did not go into the plaintiff’s bank accounts. I do not accept that submission. The defendant chose not to cross-examine Danniel and John on their evidence about the loans they advanced and Lisa was not questioned about them. Alessandro was cross-examined and I accept his evidence that part of the loan he obtained was to loan the plaintiff $2,000.
Accordingly, I accept there is evidence that loans from Danniel, John and Alessandro were made to the plaintiff and represent a joint liability on the part of the plaintiff and Lisa.

Employment and income

The plaintiff has not received any income since 22 December 2018. His tax assessment for the 2018 financial year identifies taxable income of $18,744.
The plaintiff has applied and been approved for a Newstart Centrelink benefit in the amount of $512.70 per fortnight, which includes an energy supplement and pharmaceutical allowance. The payments are to be backdated from 29 March 2019. As at the date of the hearing, the plaintiff had not received payments because of an error with his bank account details.
As noted earlier, the plaintiff left school when he was fourteen and a half and could not read. He has no formal qualifications or skills. The plaintiff's evidence, which I accept, is that he has had great difficulty in being able to obtain regular employment because of his criminal record and because he continues to have limited reading ability and has difficulty keeping accounts.
The plaintiff’s prior work experience is limited to manual labouring and sales of goods on his own behalf, such as watches, hair products or electronic imported from China. The plaintiff was recently self-employed and worked as a hawker. He had a registered business ITEK Global Technologies which was cancelled on 8 May 2009 and no longer trades.
Based on his experience and skills, the plaintiff considers that he may be able to earn income by setting up a new business selling goods at markets. He gives evidence that he would require capital to set up that new business, which would include the cost of a van and goods. He estimates those costs to be around $75,000.
Lisa is unemployed. She receives a Centrelink benefit of $789.78 per fortnight.
The plaintiff and Lisa estimate that their joint average fortnightly expenditure is $1,330. They cannot meet this expenditure without help from their adult children, who each contribute $250 per week for rent. Their adult children also contribute money to pay for food and household utilities.
While the three oldest sons currently live with the plaintiff and Lisa and assist with rent and other household expenditure, it is to be expected that they may move out in the near future.

Health

The plaintiff suffers from a number of health issues.
His evidence is that he was diagnosed with hepatitis C in 1996, which leaves him tired and being unable to get out of bed. In 2008 he underwent unsuccessful treatment for hepatitis, and has since suffered a relapse. In 2016 he underwent further treatment which had led to muscle stiffness, headache, nerve pain and a heightening of depression.
The plaintiff is currently on methadone treatment for his drug addiction. His last drug relapse was 2010. He is currently otherwise drug free.
In 2006, the plaintiff broke his hip. In 2007 he was diagnosed with a sciatic nerve problem with a herniated disc. This has resulted in regular nerve pain. His evidence is that this pain has meant he is unable to exercise and resulted in weight gain.
The plaintiff has also deposed that around the end of 2000 and early 2001, he had a nervous breakdown, which coincided with an increase in his drug use, and that he suffers from depression and anxiety, which he says was diagnosed in 2001. His evidence is that his depression causes him to struggle with day-to-day stresses, to have low self-esteem and makes it difficult for him to concentrate. He was not challenged on this evidence.
The plaintiff’s evidence, which I accept, is that his counselling sessions with Ms Mercuri during which he discussed the past abuse from the deceased and his drug use, helped him to understand his problems and how to deal with them without the use of drugs.
The only records and reports in evidence in relation to the plaintiff are the 2008 and 2019 Reports from Ms Mercuri and a copy of her file. I have referred to those reports, their findings and what I take from them earlier in these reasons.
Lisa has had and continues to have health issues. She suffers from debilitating neck and back pain with associated nerve pain which affects her ability to function and is considered to be chronic. She also has fibromyalgia, has had depression and is recovering from carpal tunnel surgery. She relies on medication for her pain. Lisa was not cross-examined in relation to her medical issues.

Financial needs

The plaintiff seeks provision to provide him with secure accommodation and some money left over so he can pay for things he needs, such as ongoing counselling, which he estimates to cost $180 per session. He also requires money to pay for Lisa’s back surgery, estimated to be $18,000, as well as counselling and physiotherapy for Lisa.
The plaintiff would like sufficient funds to buy a house in an area close to Concord to enable Christopher to finish his schooling there. Initially, the plaintiff sought provision to enable him to purchase a 3 to 4 bedroom house in the Concord area which he valued at $1.6 to $2.1 million. In his updating affidavit dated 14 May 2019 and at the hearing, the plaintiff conceded that accommodation could be obtained in another area, such as Lidcombe or even Sefton, which would reduce the amount of fund required for housing. He gave evidence of the prices of a 3 to 4 bedroom house in those areas in the range of $700,000 - $800,000.
As noted above, the plaintiff estimates the cost of setting up a business selling at markets to be $75,000.

The plaintiff’s contributions to the deceased’s estate: s 60(2)(h)

The plaintiff’s evidence is that, apart from the period when he lived at Boystown, from around the age of six to when he left home at seventeen, the plaintiff assisted the deceased most days after school and work and on weekends with renovation and maintenance work at the deceased’s properties. First, at the Skelton Street property, and then at the deceased’s properties in Croydon Park and Summer Hill. The plaintiff was not paid for this work and it often involved long hours on weekends.
The plaintiff also gave evidence that, after he left home, he assisted the deceased with renovations to the Dean Street property for two to three months sometime in the period from 1985 to 1987.
Some of the works undertaken by the plaintiff on the deceased’s properties was not insignificant. It included working with the deceased and John between 1980 and about 1981 to completely renovate the Georges River Road property.
The plaintiff’s evidence that he undertook these works was not challenged, although the defendant contests that the works comprise a relevant contribution to the deceased’s estate because they were carried out prior to the deceased’s divorce from Giuseppina. I do not accept that submission. The fact that the work was carried out before the divorce does not mean it did not contribute to the deceased’s estate. The works would have resulted in an increase to the value of the properties which the deceased retained on his divorce.
As noted above, during the period 1977 to 1981 while he lived at home and was working, the plaintiff gave most of his wages to the deceased to which the plaintiff understood he would ultimately be entitled. While he was able to utilise some funds on occasion, the plaintiff’s evidence is that when he left home at seventeen the deceased refused to give him his money.
The plaintiff’s evidence is that the deceased kept a record of the plaintiff’s wages in a small “black book” and that the plaintiff was told they were being deposited into a Commonwealth Bank account on his behalf.
There was a dispute at the hearing as to the existence of the black book. The plaintiff’s evidence, which I accept, as to the existence and purpose of the book was corroborated by Lisa’s evidence that she was told by the deceased that he recorded the money which the plaintiff handed over to him in the book.

The plaintiff’s evidence is that the last figure he saw recorded in the book was $7,800, although he calculates that the amount he gave over to the deceased was around $23,000 based on the wages he received during the period.
It is not now possible to accurately calculate the amount of money handed over by the plaintiff and retained by the deceased. Based on the period of time over which the money was paid and the evidence of what the plaintiff was being paid, I accept the plaintiff’s submission that it represented a not insignificant sum in 1980 when the plaintiff left home.

Any provision made by the deceased for the plaintiff during his life: ss 60(2)(i) and (k)

There was no evidence of any provision made by the deceased to the plaintiff during his life after he left home at seventeen.

The deceased’s testamentary intentions, including evidence of statements made by the deceased person: s 60(2)(j)

As noted earlier, under the deceased’s last will, the defendant was the sole beneficiary of the whole of the deceased’s estate. If she had not survived, then Rocco Jnr and Marinella would have received the entirety of the estate in equal shares.
The deceased had made three previous wills on 23 July 1993, 17 July 1996 and 20 July 2005. In each of those wills, the deceased left his estate to the defendant, Rocco Jnr and Marinella (either directly or by trust).
The deceased excluded the plaintiff from each of his four wills. He provided specific reasons as to why he was doing so by a letter prepared in 1993 and by instructions he gave in 2005.
The 1993 letter is dated 3 October and is stated to be an accompaniment to his will in which he gives his reasons why he did not make any testamentary provision for the plaintiff and Angela (1993 letter).
The 1993 letter refers to his relationship with the plaintiff and Angela as always being strained up until the time he became estranged from Giuseppina in 1988, and particularly with the plaintiff who “led a life of petty crime and drug abuse”. It states that they did not support him when he had marital problems with Giuseppina and they “abused and mistreated me in my own home and offered me no support whatsoever”. It also alleges that they lied during the divorce proceedings, including giving false evidence which led to his assault conviction and suggesting that he was part of the mafia and evading tax.
In relation to the plaintiff, the 1993 letter refers to him being in and out of gaol, the only time the deceased hearing from him was “when he needed money”, that he received little recognition for visiting him in gaol and he doesn’t know whether “he is still there”.
The 1993 letter refers to the defendant and their children and states that the deceased wants to provide for them with the property he has until they are able to support themselves. It also states that the deceased feels justified in not leaving anything to the plaintiff and Angela as he “supported them throughout their lives”, has given “them everything that they wanted until the time of my divorce”, and because he has had “no respect, love or affection from these children for many, many years”.
There is also evidence that at the time he made his 2005 will the deceased informed the Public Trustee and Guardian that the plaintiff and Angela had, since his divorce settlement with Giuseppina, “since tried to sue him for funds”, are “money grabbers” and that his son is a “drug addict”.
In appropriate cases, considerable weight may be given to the testamentary wishes as to who should benefit from their estate if it can be seen that the testator was capable of, and did, give due consideration to the claims on their estate. This approach recognises that a testator is in a better position than the Court to make such an assessment. But the application of s 59 of the Succession Act is “not confined by notions of reluctance to interfere with freedom of testation”, and the expression of the deceased’s testamentary wishes contained in the statement of reasons is just one of many matters to be taken into account: Steinmetz v Shannon [2019] NSWCA 114 at [96] per Brereton JA; Sgro v Thompson [2017] NSWCA 326 at [83]; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127].
The 1993 letter and 2005 instructions make clear that the deceased gave consideration to the plaintiff as someone who may have a claim on his estate when the 1993 and 2005 wills were made. The issue is what weight should be given to the assertions regarding the plaintiff’s character and conduct as a justification for excluding the plaintiff from his latest will.
There is no evidence that the plaintiff gave evidence in support of Giuseppina during the divorce proceedings or any information which led to the ADVO being taken out against the deceased by Giuseppina. Nor is there evidence that the plaintiff asserted the deceased was part of the mafia and evading tax. There is also no evidence that prior to 1993 the plaintiff abused the deceased, sought funds from him (other than what he asserts were his ‘savings”) or sued him for money. In the absence of any corroborating evidence and where the plaintiff has given evidence that he denies those matters, I do not consider them to be of any weight.
It is not disputed that the plaintiff has had multiple periods of incarceration, had a drug problem and did not see the deceased for many years. The assertion that the plaintiff did not show the deceased affection and support after the estrangement between the deceased and the plaintiff’s mother is likely correct, given the history and nature of their relationship. They are matters which bear weight on this application and will be taken into account as part of the overall evaluative judgment in this case.
The 1993 letter confirms the desire of the deceased to fully provide for the defendant and his second family although it is relevant, in my view, that he does so in qualified terms being for the period while they cannot support themselves.
The defendant also gave evidence that the deceased told her that he intended to provide solely for her and their children because the plaintiff and his sister would inherit from Giuseppina from a property settlement that he had given to her. As noted earlier, it is not in dispute that the plaintiff received some money from Giuseppina’s estate. It was not a significant sum.

Whether there is anyone else liable to support the plaintiff: s 60(2)(l)

Other than the government through the provision of Centrelink benefits, the only person, liable to support the plaintiff is Lisa. As noted earlier, she is unemployed and is also on Centrelink benefits.

The plaintiff’s character and conduct: s 60(2)(m)

I have already dealt with matters relating to the plaintiff’s character and conduct. He does not resile from the fact that he has an extensive criminal record and had lengthy drug addiction. I accept his evidence that he has gone to great lengths to overcome that drug addiction by undertaking counselling on a voluntary basis for over seven years and commencing methadone treatment.

The defendant’s conduct: s 60(2)(n)

I have also dealt with facts which go to the deceased’s conduct and character. The evidence indicates that he was a prone to violence, physically abused the plaintiff when he was young, was also was violent towards the defendant and had a controlling nature.
There is also evidence that he lied to the police and made regular applications for ADVO’s, not just against the plaintiff but also against the defendant and the deceased’s his brother. Relevantly, the police records in evidence state that “the majority of the previous domestic violence claims hold no validity”.

Any other matter considered relevant: s 60(2)(p)

The parties did not identify any other matters that are relevant to the plaintiff’s application.

Consideration and determination

The plaintiff submits that the Court should conclude that adequate provision for the plaintiff’s proper maintenance and advancement in life had not been made by the deceased’s will and that provision should be ordered by granting him the Sefton property plus a separate fund of $200,000.
While not disputing that the plaintiff has financial needs, the defendant submits that the Court is not in as good a position as the deceased was to assess whether leaving nothing to the plaintiff in the will was “proper” in the circumstances. The defendant submits that, having regard to all the circumstances, the defendant had good reasons deliberately leave the plaintiff out of his will, referring to his years of drug use resulting in multiple stints in prison and the periods of estrangement (which the defendant submits were largely caused by the plaintiff).
The defendant submits that it was the plaintiff’s conduct in “wanting a property from the deceased for nothing” which resulted in their final estrangement. This, she contends, justifies no order for provision being made. The defendant also submits that the plaintiff’s action in reporting the deceased to the police for alleged abuse and involving him in two sets of legal proceedings while he was sick with cancer was “appalling” when judged by moral, community and/or any other standards of decency, and should disentitle the plaintiff’s claim for provision.
The defendant contends that, in all of these circumstances, the Court should not be inclined to rewrite the deceased’s will and reward the plaintiff’s conduct and the Court should decline to make an order for provision for the plaintiff and dismiss his application with costs.
As noted earlier, estrangement is a factor that should be taken into account in considering an application for provision. The causes of estrangement and circumstances of hostility and callousness are ones which might make it particularly appropriate for a testator to choose not to make provision for an adult child: Ford v Simes [2009] NSWCA 351, at [71] – [72]. The Court can also consider whether there has been any attempt at reconciliation: Burke v Burke [2015] NSWCA 195 at [91] - [93].
There is no dispute in this case that the plaintiff and deceased were estranged at the time of the deceased’s death. But I do not accept the defendant’s submission that the plaintiff was the only party responsible for the estrangement between him and the deceased. As I have found, the final abandonment of the relationship in 2015 was, in my view, ultimately a mutual one, with both the plaintiff and the deceased conducting themselves in ways that could be considered blameworthy and resulting in there being little or no likelihood of reconciliation or ongoing father/son relationship.
I accept that the conduct of the plaintiff in taking Court action against the deceased, reporting him to the police and using aggressive and hostile language could be considered egregious and render him undeserving. But the plaintiff’s conduct needs to be viewed in the context where he had suffered abuse from the deceased as a child, believed he had been wronged (again) by the deceased’s actions, particularly by encouraging him to move his family to Sydney, offering him housing assistance and then, so far as the plaintiff was concerned, reneging on a “promise”, and the deceased had taken out an ADVO against him.
I do not consider this to be a case which should be characterised as an adult child simply treating their parent callously, with hostility and withholding love and support without any justification. The circumstances of the plaintiff’s final estrangement from the deceased, his conduct towards him in 2015 and 2016 and the lack of prior close ongoing contact are explicable by the long fractured relationship between the plaintiff and the deceased over many years, as well as the deceased’s conduct towards the plaintiff particularly when he was young.
I accept there was no attempt at reconciliation by the plaintiff towards the deceased in the year before he died. But that was in the context where the deceased had taken out an ADVO against the plaintiff. There is also evidence that the plaintiff wanted to see the plaintiff at the hospital before he died but did not because he believed the ADVO prohibited him from doing so and because the defendant failed to respond to the message from Lisa. The plaintiff also attended the deceased’s funeral.
In those circumstances, I am not persuaded by the defendant’s submission that the estrangement between the plaintiff and the deceased and the plaintiff’s conduct towards him in late 2015 and 2016 are determinative factors that have the effect of barring the plaintiff’s claim for provision. Rather, they are factors to be considered with all others and may, if provision is to be ordered, have the effect of reducing the plaintiff’s claim on the deceased’s estate: Keep v Bourke [2012] NSWCA 64 at [49].
As noted by Bryson J, in Gorton v Parks (1989) 17 NSWLR 1 at 12, “It is obvious human experience that even small assistance at early stages of life can transform a person’s economic opportunities later”.
The facts of this case demonstrate that the plaintiff had a challenging childhood. He was subject to abuse by the deceased, left school when he was relatively young at a time when he could not read, did not learn a trade and was required to hand over his wages and work on the deceased’s properties. The conduct of the deceased towards the plaintiff when he was young would, in my view, be assessed as contrary to the moral duties and expectations of a parent, at least by today’s community standards. It is also conduct which is to be expected has had some lasting impact on the plaintiff’s life and circumstances.
While debate may be had as to all of the causes of the plaintiff’s needs, I do not accept the defendant’s contention that his current circumstances are unrelated to his childhood experiences and are caused only by his past drug abuse and life choices. The plaintiff’s evidence, as well of the opinions contained in Ms Mercuri’s reports, supports the conclusion that the deceased’s conduct, particularly the abuse, had the effect of depriving the plaintiff of some opportunities in life and that there is some causal connection between the deceased’s treatment of the plaintiff and the plaintiff’s current need for provision.
That is not to say that the plaintiff’s position today is to be solely attributed to the deceased. It is not. The plaintiff has made some choices in life which, by his own admission, were the wrong ones that also contributed to the position he finds himself in today.
The plaintiff is an adult son who has, for the most part, made his own way in life in the absence of any financial security and with no real education while struggling to deal with a long drug addiction and criminal record and the impact of his upbringing with the deceased.
The plaintiff is not in the same position as an able-bodied adult male who is earning a living and in a position to provide and maintain himself and his family. While able-bodied in a physical sense, the plaintiff has health issues and other challenges. His lack of skills also means that, at his age, it is not to be expected that he will be able to secure regular paid employment other than working for himself as a hawker or at the markets which requires capital. He and his wife own no property, have no shares or other assets or superannuation and have no steady income other than Centrelink benefits. He is in significant financial need.
The plaintiff’s needs and a moral obligation to his son were recognised by the deceased when he offered the plaintiff an opportunity to build and live at the back of the Dean Street property in 2012 and then again in 2015. The deceased also considered making provision in his will recognising the plaintiff’s interest in the property. This was despite their difficult history and the deceased’s statements in the 1993 letter and instructions at the time of his 2005 will which referred to the plaintiff’s drug use, time in gaol and lack of affection. The deceased’s last will was created at a time when the plaintiff and the deceased were finally estranged, raising questions to my mind as to whether he gave due consideration to the claims of the plaintiff as a wise and just testator should.
The estate is not insignificant in size and there are no competing claimants, although the defendant’s obvious moral claim cannot be ignored.
The question is whether, in all the circumstances of this case, I am satisfied that the deceased has made adequate provision for the plaintiff’s proper advancement and maintenance in life, adjudged at the time of the hearing, in circumstances where no provision was made at all in the deceased’s will, noting that no provision does not of itself bespeak inadequacy: Philpott v Pantos [2018] NSWSC 852.
In making a determination whether to interfere with freedom of testation, the Court should consider the “moral duty” of a testator to make provision. There may not be much difference between what “community standards” expect a person in the position of the deceased to do by way of provision for the plaintiff and what the deceased is morally obliged to do in that respect: Steinmetz v Shannon [2019] NSWCA 114 at [44], [46] and [109].
I accept that there are likely to be a range of views on what members of the community might consider the deceased should have provided for the plaintiff in this case or what he was morally obliged to do. This is particularly given the periods of estrangement and the plaintiff’s conduct. But in my view, those factors do not justify the conclusion that adequate provision has been made by the deceased’s will for the plaintiff’s proper maintenance and advancement in life.
In circumstances where the deceased had previously recognised some moral duty to help the plaintiff by the offer of building a house on his land, the plaintiff has significant financial need (which is supported by the facts), the size of the estate is not small, there are no competing claims, the plaintiff made contributions to the deceased’s estate while he was young, and the past conduct of the deceased provides some explanation (but not all) for the current position of the plaintiff, it seems to me to be consistent with community standards and the deceased’s moral duty for the deceased to have made some provision for the plaintiff from his will.
As to the amount of provision, I do not accept that it should be the Sefton property and $200,000 as sought by the plaintiff. This would amount to approximately $1.647 million on current values, representing just over 50% of the deceased’s net distributable estate. Providing the plaintiff with provision by way of two flats and two shops as well as a fund, is more than required for adequate provision for the plaintiff’s proper maintenance and advancement in life in the circumstances of this case.
The defendant submits that if any provision is to be ordered it should be limited to the amount of $120,000 which would be sufficient capital required for the plaintiff to get a market business started and pay his debts.
Balancing the factors in s 60(2) of the Succession Act and making an evaluative judgment that has regard to all relevant circumstances, not merely financial circumstances, I propose to order that provision be made for the plaintiff by way of a lump sum in the amount of $470,000.
The amount of $470,000 should enable the plaintiff to pay off his debts and establish his business selling at the markets and thereby earn income. It should also provide him with some funds to assist with securing accommodation, accepting that it is not sufficient to purchase a three to four bedroom home for him and all of his family, or a smaller property outright.
With an estate of this size it might be expected that the provision would be higher. But I consider the amount of $470,000 to be proper in the circumstances of this case. The Court’s discretion is influenced by the plaintiff’s contribution to the estrangement, his later conduct and the nature of the relationship between the plaintiff and the deceased over much of the plaintiff’s adult life. Those matters do not, in my view, justify the deceased’s estate providing funds to enable the plaintiff to buy an unencumbered home. The amount of $470,000 also recognises that a significant proportion of the deceased’s estate should remain with the defendant having regard to her long marriage with the deceased and the expectation that her estate will go entirely to their children.

Costs and orders

I see no reason why costs should not follow the event and will make an order that the plaintiff’s costs on an ordinary basis be paid out of the estate. If either party wishes to seek a special costs order, they can apply to do so within 14 days.
For these reasons, I make the following orders:

pursuant to s 59 Succession Act 2006 (NSW), the plaintiff to receive a lump sum of $470,000 out of the estate of the late Rocco Pulitano (deceased); and

unless either party makes an application for a different costs order within 14 days, the plaintiff’s costs of the proceedings, calculated on an ordinary basis, and the defendant’s costs of the proceedings, calculated on an indemnity basis, be paid out of the estate of the deceased.

Decision last updated: 29 November 2019

Medium Neutral Citation:	Pulitano v Pulitano [2019] NSWSC 1688
Hearing dates:	22, 23 and 24 May 2019. Last written submissions received 7 June 2019.
Date of orders:	29 November 2019
Decision date:	29 November 2019
Jurisdiction:	Equity
Before:	Henry J
Decision:	(1) Pursuant to s 59 Succession Act 2006 (NSW), the plaintiff to receive a lump sum of $470,000 out of the estate of the late Rocco Pulitano (deceased). (2) Unless either party makes an application for a different costs order within 14 days, the plaintiff’s costs of the proceedings, calculated on an ordinary basis, and the defendant’s costs of the proceedings, calculated on an indemnity basis, be paid out of the estate of the deceased.
Catchwords:	SUCCESSION – family provision – claim by adult son – evidence of difficult relationship between plaintiff and deceased before estrangement – evidence that plaintiff subjected to physical abuse by the deceased during childhood – scope of the deceased’s moral obligation to provide for the plaintiff – where plaintiff has significant financial need – where plaintiff has experienced periods of drug addiction and incarceration – where plaintiff had made past contributions to estate – causes of estrangement – no competing claims on the estate – where deceased had offered to help the plaintiff prior to estrangement
Legislation Cited:	Succession Act 2006 (NSW), ss 59, 60, 61, 78, 79, 80, 81, 82, 85, 88, 100
Cases Cited:	Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Burke v Burke [2015] NSWCA 195 Chan v Chan [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Ford v Simes [2009] NSWCA 351 Gail Patricia Stone v Michael John Stone [2019] NSWSC 233 Gorton v Parks (1989) 17 NSWLR 1 Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 Harris v Harris [2018] NSWSC 552 Jones v Dunkel (1959) 101 CLR 298 Keep v Bourke [2012] NSWCA 64 Litchfield v Smith & Tingate [2010] VSC 466 Newman v Newman [2015] NSWSC 1207 Philpott v Pantos [2018] NSWSC 852 Poletti v Jones [2015] NSWCA 107 Re Filomena Rodi, deceased [2016] NSWSC 1696 Rogers v Rogers [2018] NSWSC 1982 Sammut v Kleemann [2012] NSWSC 1030 Sgro v Thompson [2017] NSWCA 326 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Steinmetz v Shannon [2019] NSWCA 114 Underwood v Gaudron [2015] NSWCA 269 Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon [2003] HCA 48 Williamson v Williamson [2011] NSWSC 228
Category:	Principal judgment
Parties:	Anthony Pulitano (plaintiff) Nelia Bayon-On Pulitano (defendant)
Representation:	Counsel: J E F Brown w/ N Condylis (plaintiff) B Oliak (defendant) Solicitors: Turnbull Hill Lawyers (plaintiff) De Pasquale Lawyers (defendant)
File Number(s):	2017/00379670
Publication restriction:	Nil

Description	Estimated $
Furniture and personal items	$8,500.00
Bank accounts St George bank account National Bank account	$1.08 $4.79
Jewellery	$2,000.00
TOTAL ASSETS	$10,505.87

Description	Estimated $
Loan from Danniel Pulitano Loan from John Pulitano Loan from Alessandro Pulitano	$8,000.00 $13,150.00 $10,000.00
Outstanding loan owed to Danniel for credit line debt	$2,192.62
New South Wales Revenue	$10,873.00
Bank account over draft with St George bank	$72.18
TOTAL LIABILITIES	$31,222.18