Roper v Roper (No 3)
[2024] VSC 490
•22 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2022 00312
IN THE MATTER of Part IV of the Administration and Probate Act 1958
– and –
IN THE MATTER of the Will and Estate of Sheila Eileen Roper, deceased
BETWEEN:
| DANIEL EDWARD ROPER | Plaintiff |
| v | |
| MICHAEL ILIAS ROPER (who is sued as the Executor of the Will of Sheila Eileen Roper, deceased) | Defendant |
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JUDGE: | Gray J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 August 2024 |
DATE OF JUDGMENT: | 22 August 2024 |
CASE MAY BE CITED AS: | Roper v Roper (No 3) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 490 |
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TESTATORS FAMILY MAINTENANCE — Application for a family provision order under Part IV of the Administration and Probate Act 1958 by adult son — Plaintiff dependent on deceased for accommodation — Plaintiff lacked means to obtain alternative accommodation — Application partially successful — Parties invited to provide affidavit material and submissions as to quantum of family provision order — Contested issues of fact necessitating continuation of trial — Sections 90, 91, 91A of the Administration and Probate Act 1958.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented | |
| For the Defendant | Ms C Symons | Buller McLeod Lawyers |
HIS HONOUR:
The plaintiff, Daniel Roper, sought further provision from the estate of his mother by way of a family provision order under s 91 of the Administration and Probate Act 1958 (Act).
Following a trial hearing on 30 April and 1 May 2024, I delivered initial reasons for judgment on 17 May 2024, Roper v Roper [2024] VSC 249 (initial reasons for judgment).
The initial reasons for judgment foreshadowed the making of a family provision order and the granting of an opportunity to the parties to make submissions and adduce material on the appropriate amount.[1]
[1]Initial reasons for judgment, especially [46]–[47].
At a hearing on 17 May 2024, the parties consented to a determination on the papers of the amount of the family provision order foreshadowed in the initial reasons for judgment, following the filing and service of material and submissions pursuant to orders made on 17 May 2024. The orders I made on 17 May 2024 permitted the plaintiff and defendant to file and serve any submissions and affidavit material as to the appropriate amount of provision required for the plaintiff, consistent with the reasons for judgment published that day by a certain date, and permitted them to file any submissions and affidavit material in reply two weeks later.
After receiving affidavits and submissions from both parties as to the appropriate amount of provision required, but before the date for reply submissions and affidavits in order 3, on 21 June 2024, I delivered further reasons for judgment (Roper v Roper(No 2) [2024] VSC 354) (second reasons for judgment).
By email correspondence to the parties on 24 June 2024, my chambers indicated that I had overlooked the direction permitting replies when I delivered the second reasons for judgment, but as I had not yet made the family provision order and the matter remained open, I would consider any reply submissions filed by 28 June 2024 and would provide supplementary reasons for judgment before reaching a final decision on the quantum of the family provision order. The correspondence also indicated that if the parties wished to address any aspect of the second reasons for judgment in the course of their reply submissions, they were free to do so. The correspondence confirmed that the parties remained free to put on any affidavit material in reply, as permitted by my orders on 17 May 2024, and that I would consider any such affidavit material along with any reply submissions before reaching a final decision on the quantum of the family provision order.
The Court then received further submissions from the parties relating to the issue of the appropriate quantum of the family provision order.[2] It was immediately apparent to me that they raised significant issues, including disputed questions of fact. Although the parties had agreed to my determining the appropriate quantum of the order on the papers, I decided that it was not appropriate to do so.
[2]Plaintiff’s Submission Judgment (No 2) Response dated 23 June 2024 and filed 28 June 2024; Defendant’s Submissions in Reply as to Quantum dated and filed 28 June 2024; Defendant‘s Amended Submissions in Reply as to Quantum dated and filed 28 June 2024; and Plaintiff’s Final Submissions Addendum dated and filed 28 June 2024.
I therefore listed the matter for further oral hearing of up to one day’s duration, by way of continuation of the trial, limited to the question of the appropriate amount of the family provision order to be made in this proceeding, consistent with the initial reasons for judgment, including any matter referred to in the second reasons for judgment.
I indicated that I would not rely upon assertions of fact set out in submissions unless supported by affidavit or oral evidence, and that I would not allow any oral evidence in chief at the further hearing. Instead, by means of an order I made on 3 July 2024, I gave the parties an opportunity to verify, by affidavit material filed in advance of the further hearing, any assertions of fact in their submissions that were not already supported by affidavit or oral evidence.
In other words, I indicated that any additional evidence in chief a party wished to rely on was to be limited to evidence in affidavit form in support of factual assertions in submissions the party has previously filed. I set a deadline for filing and service of any such material. I indicated that there would be a further hearing for cross-examination of any deponent whose affidavit was to be relied upon by a party on the question of the appropriate amount of the family provision order in this proceeding.
Mr Roper filed seven affidavits pursuant to my orders of 3 July 2024, all of which were received into evidence, subject to cross-examination. The defendant filed no further affidavits.
The defendant had previously filed two affidavits, pursuant to my orders of 17 May 2024 and before my orders of 3 July 2024. One of these contained a real estate agent’s opinion as to the price of one-bedroom ground floor units in Glenroy. The agent based this valuation on evidence of sales of such units, accompanied by a car space, sold in the last six months prior to his affidavit. As indicated in the second reasons for judgment,[3] the valuer opined that such units were generally sold in the range of $280,000 to $320,000. Making allowance for up to $15,000 in acquisition costs, I calculated that Mr Roper should be granted $335,000 to acquire accommodation in the Glenroy area.
[3]Second reasons for judgment, [6].
One of the new affidavits Mr Roper filed pursuant to my orders of 3 July 2024 contained what appeared to be competing valuation evidence, disputing the defendant’s valuation. Mr Roper’s affidavit included extracts from the internet for various properties in the Glenroy area that were priced substantially in excess of $320,000.[4] In his written submissions, Mr Roper contended that the family provision order should be calculated on the basis of an allowance for a purchase price for accommodation in the Glenroy area in the range of $480,000 to $590,000, and that $320,000 would be inadequate.
[4]Affidavit of D E Roper affirmed 5 July 2024 and filed 7 July 2024 including exhibit titled ‘Housing Costs’.
Mr Roper was cross-examined on his new affidavit setting out values for properties in the Glenroy area.
It is clear that the information in Mr Roper’s affidavit does not relate to one-bedroom units, but to substantially larger and more valuable properties. Mr Roper explained that he considered it appropriate to provide information in relation to homes with garages and a certain amount of yard space, regardless of the number of bedrooms they possessed.
Accommodation of that kind would be in excess of the accommodation needs that I have decided to be appropriate as the basis for estimating the family provision order in this case. As explained in my initial reasons for judgment at [46]–[47], I have decided that provision should be made for a one-bedroom unit or flat.
I adhere to my quantification of the amount required to enable Mr Roper to obtain this form of accommodation, as stated in my second reasons for judgment: $320,000 plus provision of $15,000 for acquisition costs. I used the high end of the range of valuations in evidence before me to ensure that Mr Roper has enough money to purchase a one bedroom unit. This should suffice to meet any reduction in his mobility into the future, because it is based on a valuation of ground floor units. It also includes a car space to accommodate his car. I made a conservative addition of an amount for acquisition costs including stamp duty of $15,000 because I had received no evidence or detailed legal submissions as to whether Mr Roper would be eligible for a waiver of stamp duty. The total therefore amounted $335,000.
In other affidavits pursuant to my orders, Mr Roper provided evidence in support of his position that it would be more appropriate to enable him to purchase a larger property, and one that has a garage and some yard space. He filed two affidavits listing his possessions. Clearly they will not fit within a modest one-bedroom unit. Assuming he uses the money he will obtain from the family provision order to purchase a one-bedroom unit, that would necessitate him disposing of many, indeed most, of these possessions. However, this does not lead me to alter what I said in my initial reasons for judgment at [46]–[47] concerning the appropriate form of family provision order in this case. The fact that Mr Roper currently owns all these possessions does not justify a family provision order granting him additional money to purchase a spacious enough property to house them all.
One of Mr Roper’s new affidavits also contains the following evidence about cats he currently cares for:
I am still caring for a 13 year old tabby cat whom my mother the testator looked after for approximately 7 years before he moved in with me. I am also caring for an 11 year old black cat who lived in our combined yard and moved between my house and hers. Additionally I have 4 cats who were homeless and turned up on my door whom I care for. My mother and I cared for any homeless animal that turned up on our door for the past 60 years. While legally they may be considered such, they are more than just “possessions” to me. In my morality each of their lives are equal in value to that of a human. I can neither voluntarily send them to their deaths nor stand by idly while they are murdered, directly or indirectly.
Downsizing to a one-bedroom unit in an apartment complex will make it very challenging for Mr Roper to continue to care for these cats, and may make it impossible for him to care for any of them. I assume that he will do his best to ensure that the cats are appropriately cared for. He clearly fears that it may not be possible to make any such arrangements. Ultimately, his fears about the survival of the cats may prove well-founded. However, Mr Roper’s concerns about the cats do not justify altering the form of accommodation for which provision ought be made, as decided in my initial reasons for judgment. I adhere to what I said in those reasons: the appropriate form of accommodation for which provision is required in this case is a one-bedroom unit in the Glenroy area.
Three of Mr Roper’s other affidavits deposed to his living expenses, a ‘thank you’ card he received after rescuing a neighbour who had suffered a fall, and the frequency with which he has attempted, unsuccessfully, to obtain employment. His final affidavit did not depose to contested facts, but instead provided more submissions about authorities on the question of quantification of appropriate provision for the vicissitudes of life.
The quantification of appropriate provision for the vicissitudes of life was the main focus of the submissions filed by the defendant in late June in reply to Mr Roper’s submissions as to the amount of provision and following my second reasons for judgment.
In my second reasons for judgment I quantified that amount at $300,000, after having suggested in my first reasons for judgment that an appropriate amount for this purpose might be $150,000.
The defendant contended that the figure of $300,000 was excessive and expressed concern that I may have been influenced by inadmissible assertions in Mr Roper’s submissions and speculation in expressing that figure, after having initially suggested that $150,000 might be appropriate. The defendant expressed concern that I had been influenced by various matters in Mr Roper’s submissions that I ought not to have taken into account, and that I had placed undue reliance on submissions made by Mr Roper with reference to the Court of Appeal’s decision in Davison v Kempson & Ors[5] (Davison). With regard to Davison, his submissions included the following:
Whilst His Honour in the Further Reasons set out some of the distinguishing factors between this proceeding and Davison, with respect, His Honour did not go far enough. His Honour, after assessing all of the evidence at the Trial, determined in his Reasons that the Plaintiff did have the capacity to perform remunerated work.[6] This is in direct contrast with the Applicant in Davison who was found by the Court of Appeal to not have the capacity to perform remunerated work.
[5][2018] VSCA 51 (Davison).
[6]Referring to initial reasons for judgment, [47].
The defendant submitted he would be prejudiced if I had placed weight, or were to place weight, on various assertions of fact in Mr Roper’s written submissions that were unverified by his affidavits and untested by cross-examination. These submissions related to the plaintiff’s claims to lack any employment prospects, to have a disability, and to have certain expenses. As to these objections, the following must now be noted. In two of Mr Roper’s new affidavits filed pursuant to my orders of 3 July 2024, Mr Roper advanced evidence about his attempts to obtain employment and about his expenses. The defendant took the opportunity to cross-examine him on those matters at the further hearing on 19 August 2024.
The defendant further submitted that the plaintiff’s submissions made ‘indiscriminate reference to the quantum provided in other Part IV decisions’ often ‘provided out of context without any accompanying explanation as to factors such as the number of competing beneficiaries and the personal circumstances of the claimant’.[7] He also submitted that the courts have ‘repeatedly emphasised that each case is to be determined on its own facts and there is little utility to be gained from attempting to compare cases.’[8]
[7]Defendant’s amended submissions in reply as to quantum dated 28 June 2024, [21].
[8]Defendant’s amended submissions in reply as to quantum dated 28 June 2024, [22].
I accept that each case must be determined on its facts. I must also bear in mind that ‘it would be unreasonable to approach the task purely as an arithmetic exercise’.[9] Nevertheless, earlier cases, and in particular cases in which the Court of Appeal has re-exercised discretion as to the appropriate amount required for proper maintenance and provision, provide important guidance to judicial officers exercising that discretion at first instance, provided due regard is given to differences in the circumstances of each case.
[9]Davison [78].
The defendant submits that I did not place enough weight on the differences between the circumstances in Davison and the present case. In my summary of the differences between this case and Davison in the second reasons for judgment at [15] it is true I did not refer to the finding in Davison that it was unlikely that the applicant would ever be employed gainfully.[10] Aside from social security payments, the applicant in that case had earned some money selling items at markets and fairs and similar activities, up to a limit of 25 hours a week.[11]
[10]Davison [49], [87] and [95].
[11]Davison [47].
Here, according to Centrelink’s assessment, Mr Roper has the capacity to work part time. As explained in the initial reasons for judgment, I am satisfied that Mr Roper has some capacity to earn income. I was impressed by Mr Roper’s skills with computers and considered it reasonable that he be expected to be able to earn something that would augment his income through utilisation of these skills. Nothing has occurred to alter that conclusion. Under cross-examination, he confirmed that he remains assessed by Centrelink as having capacity to work between 16 and 22 hours per week. I remain satisfied that Mr Roper should be able to augment his Centrelink income through his own efforts in some minor way, even though I acknowledge that, on his recently adduced evidence, he has for many years been unsuccessful in securing an employed position. He may not be able to obtain a secure employed position, but should be able to obtain some form of income, even if only on a casual and ad hoc basis.
I do not think this places Mr Roper in materially different circumstances from the applicant in Davison as regards to his prospects of ever becoming gainfully employed. Perhaps Mr Roper has somewhat better prospects of obtaining income, but it is difficult to be sure what impact this should have on the quantification of the sum he needs for expenses and contingencies.
As already noted, it is unreasonable to approach the task as a purely arithmetic exercise. I will not attempt to quantify the amount by which Mr Roper’s income-producing potential exceeds that of the applicant in Davison. In any event, the sum might need to be called upon in the case of unexpected events, so a buffer is appropriate.
To take just one possible example of an unexpected potential event, neither party addressed me on whether Mr Roper’s entitlement to his current level of Centrelink payments might be affected by the outcome of this proceeding under any applicable means test. If his Centrelink payments decrease, then Mr Roper will need ready cash to draw upon. The sum must be adequate to address foreseeable ongoing expenses, as well as unexpected events and vicissitudes such as costs arising from declining health into old age.
For abundant clarity, I confirm that I do not accept the defendant’s submission that I should only make provision for $50,000 to $100,000 for these purposes.[12] I adhere to my estimate that $300,000 is appropriate. The defendant submitted that if Mr Roper’s level of disability increases, it is to be expected that his Services Australia entitlements will also increase, and that he may be eligible to receive money from the National Disability Insurance Scheme (NDIS).[13] The defendant did not support his submission about the NDIS with evidence or any detailed legal submissions about that scheme.
[12]See defendant’s amended submissions in reply as to quantum dated 28 June 2024, [27].
[13]Defendant’s amended submissions in reply as to quantum dated 28 June 2024, [20].
Perhaps the submissions about increased social disability payments may be right, but again it is very difficult to predict the extent to which any increase in social security payments would be adequate. There is a real risk that there would be a shortfall. As to the submission relating to the NDIS, I do not give it any weight as it was not supported by any evidence or any other form of explanation about that scheme.
The defendant contended that the $300,000 estimate for expenses and contingencies I gave in the second reasons for decision was based on speculation. He submitted:[14]
Additionally, the Defendant is concerned that, although the Court has a broad discretion in such matters, that discretion must nonetheless have some basis in or be referrable to the evidence. In the present matter the Plaintiff adduced no evidence as to his need for further provision for future vicissitudes or emergencies, whether likely or not. In these circumstances, it is a concern to the Defendant that provision of an amount of between $150,000.00 and $300,000.00, without any evidence as to the need for such amounts, nor the nature or likelihood, of such vicissitudes or emergencies, may inadvertently lead the Court into the realm of speculation.
[14]Defendant’s amended submissions in reply as to quantum dated 28 June 2024, [23].
There is force in the defendant’s submission that I have engaged in a degree of speculation in estimating the appropriate amount to meet vicissitudes. However, this seems justified on the authorities. As I understand my task, I am required to provide an amount that will be likely to prove adequate to meet unexpected events. Some degree of speculation is necessarily involved.
My conclusion is that the amount of the family provision order in this proceeding will be $635,000. This comprises $335,000 that is attributable to Mr Roper’s need for basic accommodation in the Glenroy area, and $300,000 for expenses and contingencies, including vicissitudes.
In formulating final orders, it will be necessary to keep in mind the following matters concerning Mr Paul Roper:
(a) the estate is to pay Mr Paul Roper $61,000 in addition to his entitlement to a share of the residual estate;
(b) the parties have agreed to quarantine Mr Paul Roper’s one-seventh entitlement to the residuary estate from the effects of the family provision order in this proceeding; and
(c) the defendant has indicated that costs incurred in defending this proceeding may have to be deducted from the assets of the estate before the dollar value of Mr Paul Roper’s share is to be calculated.[15]
[15]Affidavit of Peter John McLeod sworn 14 June 2024; defendant’s submissions as to quantum dated 17 June 2024, [11].
I will give the parties the opportunity to make submissions as to orders that are appropriate — in light of these reasons — to dispose of the proceeding, and on the question of costs.
If there is any past correspondence on which a party seeks to rely on the question of costs, they have leave to exhibit it to an affidavit to be filed and served in support of their submissions.
Any such affidavits and submissions must be filed and served within seven days after these reasons are published, and any reply submissions within a further seven days. Each set of submissions must be limited to three pages.
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