Secretary, Family and Community Services v Mary

[2018] NSWSC 538

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Secretary, Family and Community Services v Mary [2018] NSWSC 538

Hearing dates:

26 April 2018

Date of orders:

26 April 2018

Decision date:

26 April 2018

Jurisdiction:

Equity - Probate List

Before:

Kunc J

Decision:

Summons dismissed

Catchwords:

SUCCESSION - wills, probate and administration - the making of a will – application for statutory will for seriously ill child – “nil capacity” case - small estate with uncertain possibility of damages award – no evidence as to prospects of success or likely amount of damages (if any) – Succession Act 2006 (NSW), ss 18, 20, 22

Legislation Cited:

Succession Act 2006 (NSW)
Civil Liability Act 2002 (NSW)

Cases Cited:

Griffiths v Kerkemeyer (1997) 139 CLR 161; [1977] HCA 45
Re Fenwick; Application of JR Fenwick; Re "Charles" (2009) 76 NSWLR 22; [2009] NSWSC 530
Secretary, Department of Family and Community Services v K [2014] NSWSC 1065

Category:

Principal judgment

Parties:

Secretary, Family and Community Service (Plaintiff)
Mary (Defendant)

Representation:

Counsel:

 

V. Hartstein (Plaintiff)

 

Solicitors:

  Crown Solicitor (Plaintiff)

File Number(s):

2018/129777

Publication restriction:

No

ex tempore Judgment (revised)

Summary

1. This is an application which has been brought on at short notice before me in the Duty List for the making of a statutory will under s 18 of the Succession Act2006 (NSW) (the "Act"). The application is brought by the Secretary of the New South Wales Department of Family and Community Services (the "Secretary") because the proposed will is to be made on behalf of a child who is currently under the parental responsibility of the Minister of Family and Community Services (the “Minister”). I will refer to that child as "Chris". The defendant is Chris' birth mother, to whom I shall refer as "Mary". All names in these reasons are pseudonyms and no disrespect is intended by the use of given names.

2. Chris is an 11-year-old boy who, at the time I am delivering these reasons, is on a ventilator in hospital. For reasons which I will set out in more detail in a moment, his prognosis is very poor. There is no dispute that, were he to die, his estate (whatever it might comprise) would go to Mary under the laws of intestacy. The statutory will which the Court is invited to make on behalf of Chris provides for his estate to be divided equally between his mother and his six half-siblings, all of whom are minors.

3. Ms V Hartstein of Counsel appeared for the Secretary. Mary appeared for herself by telephone from the hospital. She was there because a further medical case conference in relation to Chris' care is to take place later this morning.

4. By way of summary, at the conclusion of Ms Hartstein's submissions I was of the view that this was a case where leave to make the application should be granted under s 19 of the Act, but I indicated that even if leave were to be granted, I would refuse the application. On further short reflection, I have decided that the same reasons which inform my conclusion as to the ultimate exercise of the Court's discretion also mean that this is not a case where leave can be granted for the application to be brought.

5. The fundamental difficulty with this application relates to the potential size of Chris' estate. At the moment, his estate would consist of slightly less than $5,000 currently being managed by the New South Wales Trustee & Guardian (“NSWTG”). That amount represents compensation for an incident which I will describe below.

6. A statement of claim against the State of New South Wales has been prepared on behalf of Chris claiming damages for personal injuries arising out of that same incident. There is no evidence that the statement of claim has yet been filed. I will assume that it will be. However, the claim faces a number of problems which suggest that even if it yields damages for Chris or his estate, they may not be anywhere near as large as those propounding the claim may think they will be.

7. Quite apart from that difficulty, there is a more basic problem with the application because there is absolutely no evidence which would enable me to form any conclusion as to what those damages might be. For example, there is no opinion of counsel on the question. In the absence of any such information, I am of the view that I cannot rationally answer this question about the proposed will: “Is there a fairly good chance that a reasonable person, faced with the circumstances of the incapacitated minor, would make such a testamentary provision?” (Re Fenwick; Application of JR Fenwick; Re "Charles" (2009) 76 NSWLR 22; [2009] NSWSC 530 at [176] per Palmer J ("Re Fenwick"). I am therefore unable to be satisfied of the matter referred to in s 22(b) of the Act.

8. Furthermore, where there is such uncertainty over the possible size of the estate, I have reached the conclusion, not without some reluctance, that I cannot be satisfied that "it is or may be appropriate for the order to be made" (see s 22(c) of the Act).

9. The Court’s lack of satisfaction about those two matters means that, in accordance with s 22 of the Act, leave to make the application must be refused. Furthermore, even if I were wrong in that conclusion, the same considerations would mean that, in the exercise of the Court's discretion under ss 18 and 20 of the Act, I would not make the order in any event.

The facts

10. Chris is now 11 years old. Unfortunately, Chris was born with a life threatening congenital heart defect requiring urgent major surgery immediately after birth, and multiple other congenital problems including Prader-Willi Syndrome, a total reversal of the vessels in his heart, an intra-cranial haemorrhage, a limb contractual camptodactyly (being problems with certain bilateral joints) and a failure to thrive.

11. As an infant he was also diagnosed with severe hypotonia, severe motor delay, severe feeding difficulties which required surgery to insert a gastrotomy button, growth retardation and probable general developmental delay. At six months of age, Chris displayed general developmental delay and poor muscle tone, and tests undertaken since then have established he has the chromosomal deficiency which causes Prader-Willi Syndrome. The evidence before me explains that this is a syndrome which describes a collection of serious physical and developmental problems.

12. Mary was 17 years of age when Chris was born. She was apparently unaware she was pregnant until she had commenced labour. As a result, Chris had not received any antenatal care and the limited detection of his birth conditions complicated his postnatal state.

13. A few months after Chris' birth, as a result of multiple child protection reports that had been made to the Department of Family and Community Services concerning Mary's parenting skills and her ability to manage Chris’ high medical needs, orders were ultimately made in the Children's Court putting Chris into the care of the Minister.

14. I shall now describe the event to which I shall refer as the “Incident”. Chris was initially placed in the foster care of Mr X and Ms X. When Chris was about three-and-a-half, he was left by Ms X in the care of her new partner (not Mr X). Chris suffered what was originally reported as a fall from a highchair. When the ambulance arrived Chris was found in a critical condition in cardiac arrest and had injuries comprising severe bruising to his jaw, forehead and arms, and was taken to hospital. All of the subsequent medical evidence suggests that the explanation of a reported fall from a highchair was false. Chris’ injuries were consistent with a serious assault. The Incident left Chris with significant brain injuries which only further complicated his pre-existing medical condition and needs.

15. On Chris' discharge from hospital, he was committed to his current carers, Mr and Mrs Y. He has been with them for eight years and there can be no doubt that they have done all they can to care for a very high-needs child.

16. In a medical report dated January 2018, Chris’ treating physician described Chris' condition:

“Chris' current medical condition has been determined to be likely to lead to his premature death due to severity of pulmonary hypertension (raised blood pressure within the lungs) but the future course and timing of this is extremely difficult to predict and the expert opinion of the paediatric cardiologist involved should be obtained...Palliative care is being provided in the form of continuous oxygen and medication to relieve discomfort or distress however this does not necessarily mean that Chris' death is imminent. It has been determined by [the specialist] that the combination of complex congenital heart disease with pulmonary hypertension is not amenable to surgery or active medical therapy aimed at treating pulmonary hypertension. Chris is at risk for developing severe respiratory failure particularly with future episodes of respiratory infection..."

17. More recently, Chris was found to be unresponsive and in respiratory distress at his home. After a period in his local hospital, he was transferred to the intensive care unit at Sydney Children's Hospital, Randwick, with an acute lower respiratory tract infection. There is in evidence a further report dated 23 April 2018 from Chris’ treating paediatrician. That report includes:

“Over the last 17 days Chris has been an inpatient in ICU...with an acute lower respiratory tract infection (due to enterovirus and rhinovirus identified in his secretions) and this has required continuous ventilation with high ventilated pressures via an endotracheal tube for all but 48 hours between 17 & 19 April. When he was briefly extubated on 17 April for that time he was extremely precarious...Late on April 19 his fragility and inability to clear secretions resulted in a severe desaturation event for which he required rescue reintubation.”

18. The medical team treating Chris has come to the recommendation that he should only now be provided with palliative care. The report from his treating paediatrician continues:

“Accordingly, we are very concerned regarding Chris’ ability to separate from artificial airway and ventilator support. We think it most important that a clear plan is established ahead of time regarding the approach to take next time such a need for resuscitation occurs. In view of the progressive and irreversible nature of the two most severely deranged contributors to Chris’ fragile cardiorespiratory status (with pulmonary hypertension and restrictive lung disease) we think that consideration of a palliative approach should occur. Accordingly, it is our consensus medical recommendation that if we are able to get to a point in the days or weeks ahead where a further trial of extubation can occur, that this should occur with the understanding that should Chris deteriorate to a point which might otherwise trigger resuscitative efforts, that instead of resuscitation that a focus on his comfort should occur. We do not think that a placement of a tracheostomy and instigation of long-term respiratory support would afford Chris a life which is comfortable, able to be understood by him or be able to reverse the progression of his primary underlying cardiorespiratory problems...”

19. As I have said, at the time of delivering these reasons Mary is at the hospital with Chris. Over the course of time that Chris has been with his current carers, his most regular birth family contact has been with his maternal grandmother. There was some regular contact before with Mary but, until his most recent hospitalisation, the evidence is that there has been no significant contact between Chris and Mary for nearly four years.

20. Chris has six maternal half-siblings, of whom the eldest is nearly nine and the youngest is one. Those half siblings all live with Mary and their father, who is Mary’s partner. Four of those half-siblings have some degree of intellectual impairment ranging from autism to global development delay.

21. In December 2017, Chris was awarded a recognition payment in the sum of $5,000 by Victims Services New South Wales in relation to the injuries he sustained in the Incident. That sum is being managed for Chris by NSWTG. The current balance of the fund is $4,685.90. This is Chris’ only asset at the moment.

22. Carroll & O'Dea Solicitors have received instructions from Mr Y, as tutor for Chris, to make a claim against the State of New South Wales in relation to Chris’ physical injuries sustained in the Incident. There has been tendered in evidence before me a copy of a statement of claim signed by a solicitor and dated 19 April 2018, intended to commence proceedings in the District Court for unspecified damages. Putting the matter in very broad terms, the statement of claim pleads that the State breached its duty of care to Chris to take "all reasonable care for his safety and welfare by those into whose custody the defendant placed him." There is no evidence that the statement of claim has yet been filed.

23. There is no doubt that, if Chris dies, Mary will take his estate on intestacy. The will which the Court is asked to make provides for an equal distribution of his estate between Mary and Chris' six half-siblings, with NSWTG to be appointed as executor.

The law

24. The Act provides:

“18 COURT MAY AUTHORISE A WILL TO BE MADE, ALTERED OR REVOKED FOR A PERSON WITHOUT TESTAMENTARY CAPACITY

(1) The Court may, on application by any person, make an order authorising:

(a) a will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity, or

(b) a will or part of a will to be revoked on behalf of a person who lacks testamentary capacity.

Note : A person may only make an application for an order if the person has obtained the leave of the Court--see section 19.

(2) An order under this section may authorise:

(a) the making or alteration of a will that deals with the whole or part of the property of the person who lacks testamentary capacity, or

(b) the alteration of part only of the will of the person.

(3) The Court is not to make an order under this section unless the person in respect of whom the application is made is alive when the order is made.

(4) The Court may make an order under this section on behalf of a person who is a minor and who lacks testamentary capacity.

(5) In making an order, the Court may give any necessary related orders or directions.

(6) A will that is authorised to be made or altered by an order under this section must be deposited with the Registrar under Part 2.5.

(7) A failure to comply with subsection (6) does not affect the validity of the will.

19 INFORMATION REQUIRED IN SUPPORT OF APPLICATION FOR LEAVE

(1) A person must obtain the leave of the Court to make an application to the Court for an order under section 18.

…

20 HEARING OF APPLICATION FOR LEAVE

(1) On hearing an application for leave the Court may:

(a) give leave and allow the application for leave to proceed as an application for an order under section 18, and

(b) if satisfied of the matters set out in section 22, make the order.

(2) Without limiting the action the Court may take in hearing an application for leave, the Court may revise the terms of any draft of the proposed will, alteration or revocation for which the Court's approval is sought.

…

22 COURT MUST BE SATISFIED ABOUT CERTAIN MATTERS

The Court must refuse leave to make an application for an order under section 18 unless the Court is satisfied that:

(a) there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will, and

(b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and

(c) it is or may be appropriate for the order to be made, and

(d) the applicant for leave is an appropriate person to make the application, and

(e) adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.”

25. There was no dispute that this case is what was described by Palmer J in Re Fenwick as a "nil capacity case." In relation to such a case, his Honour said (and I gratefully adopt):

“Intention in a nil capacity case

171 A search for any degree of subjective intention is impossible in a nil capacity case, where the person has been born with mental infirmity or has lost testamentary capacity well before ever being able to develop any notion of testamentary disposition. Nevertheless, the statutory will-making power is available in such a case: s 18(4).

172 As, in the absence of a statutory will, the person in a nil capacity case must inevitably die intestate, I do not think that the Court starts with the meaningless question: would this particular person have chosen to make a will if he or she had attained testamentary capacity? Rather, I think that the Court must start from the position that, if there are assets of any significance in the minor's estate, it should authorise some kind of statutory will unless it is satisfied that what would occur on intestacy would provide adequately for all the reasonable claims on the estate.

173 Is that position justified by the words of s 22(b)? I think that the justification is to be found in the elastic phrase “reasonably likely”. In a nil capacity case, where there cannot be any meaningful search for actual or likely subjective intention, the Court of necessity must make objective assessments of likelihood. The Court can take notice of the fact that people in our society who have assets of any worth and who have a family and other relationships usually choose to make wills rather than die intestate. In my opinion, the Court can be satisfied by reference to common experience that if the incapacitated minor had attained testamentary capacity and had assets of any significant worth, then it is reasonably likely - in the sense of a fairly good chance - that, in common with most people, he or she would have chosen to make a will.

174 The next question is: is it reasonably likely that the incapacitated minor would have made the will now proposed? In order to answer this question, Hoffmann J in In re C had to envisage a fictitious person, somehow resembling the actual patient, while, in truth, applying the Court's objective assessment of what a reasonable person would do in the circumstances. In my opinion, to perpetuate such a fiction in applying s 22(b) in a nil capacity case is neither necessary nor desirable.

175 The fiction is undesirable because legal fictions usually distort, rather than clarify, what the Court is actually doing. As was said by Crennan J (with whom Gleeson CJ, Gummow and Heydon JJ agreed) in Harriton v Stephens (2006) 226 CLR 52, at [269]:

“The common law is hostile to the creation of new legal fictions and the use of legal fictions concealing unexpressed considerations of social policy has been deprecated.”

See also per Gummow J in Scott v Davis (2000) 204 CLR 333, at [128] and [265], and in Pyrenees Shire Council v Day (1998) 192 CLR 330, at [163]. If that approach had been taken to the development of the law of statutory wills in the United Kingdom, the fictions proposed in In re D (J) and In re C would have been discarded. In my opinion, the law of statutory wills in Australia should be developed in a way which justifies a result by a transparent process of reasoning founded upon reality, not upon contra-factual assumptions.

176 More importantly, however, the fiction is unnecessary because the words of s 22(b) can be applied sensibly and pragmatically without it. Whether a proposed will is “reasonably likely” to have been made by a person who never had, and never will have, the smallest capacity to form testamentary intentions may be answered only in the sense, discussed above: “is there a fairly good chance that a reasonable person, faced with the circumstances of the incapacitated minor, would make such a testamentary provision?” In my opinion, in a nil capacity case, as distinct from a lost capacity case, this is the question which the words “reasonably likely” in s 22(b) require the Court to answer. The considerations involved in the question are entirely objective.”

26. It will be noted, and I accept, that in a case such as the present his Honour identified the question which I must answer as being:

“Is there a fairly good chance that a reasonable person, faced with the circumstances of the incapacitated minor, would make such a testamentary provision?”

27. In addition to Re Fenwick, Ms Hartstein also helpfully referred me to the decision of Lindsay J in Secretary, Department of Family and Community Services v K [2014] NSWSC 1065. In particular, his Honour in that case said at 82:

“82. In imputation of a testamentary intention to a child never possessed of testamentary capacity (Succession Act, s 22(b)), and upon consideration of whether it is "appropriate" for a statutory will to be made for such an incapacitated person (Succession Act, s 22(c)), the Court should refrain from embracing any form of presumption against a parent judged by regulatory authorities to be unworthy.”

Consideration

28. All of the other, formal requirements for the making of this application have been satisfied. In addition, I must record that Mary has said that she consents to the application. While that is an important discretionary factor which the Court must take into account, it is not determinative of the application.

29. Furthermore, when I asked Mary about her intentions in relation to the proposed litigation if she were to be in control of Chris' estate, she replied that she would continue the action and apply the benefits for her children (being Chris' half-siblings).

30. I then asked Mary how she would deal with any award of damages by way of investment or otherwise. She fairly conceded that she did not have any real idea. However, it seems to me this would not put her in any different position from many people, parents in particular, who are in control of damages awards received by    their children. They are able to obtain advice, and financial management orders can be obtained, if necessary.

31. In saying that, I appreciate this is not a case where any damages would be ordered to be held by Mary in trust for Chris. The District Court would not have power to order that the fruits of any judgment should be held in trust for Mary and her children. Nevertheless, nothing in what Mary said to me would suggest that, appropriately advised, she would not be able to deal with any judgment in the interests of her children. What she said was not inherently incredible. Ms Hartstein, quite properly, accepted that there was no basis for me to do anything other than to take what Mary had said about her intentions at face value. I propose to do so.

32. The Court is required by s 22 of the Act to refuse leave for the application for a statutory will to be made unless it is satisfied of a number of matters, including:

“22 Court must be satisfied about certain matters

…

(b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and

(c) it is or may be appropriate for the order to be made, and …”

33. Furthermore, if the Court grants leave, it may (not “must”) make the order for a statutory will "if satisfied of the matters set out in s 22" (see s 20(1)(b)). I do not interpret that as meaning that the Court is confined only to being satisfied of the matters set out in s 22, but that is not a matter which I need to decide for the purposes of disposing of the present application.

34. There was no dispute that if Chris' estate were only the $5,000 compensation payment, the Secretary would not be making the present application. That concession is, with respect, correctly made. It is difficult to imagine any case of such a small estate where the Court would find that it even "may be appropriate" (as opposed to “is…appropriate”) for an order disrupting the statutory intestacy rules to be made.

35. What motivates the present application is the possibility of what I assume those propounding the litigation think will be a substantial award of damages, on the assumption the statement of claim to which I have referred is ultimately filed. For the purposes of determining this application, I will assume that the statement of claim will be prosecuted.

36. When I asked Ms Hartstein what submission, if any, she could make about the likely size of the award pursuant to the statement of claim, she replied with commendable candour that she was unable to assist the Court. Because of the urgent circumstances in which the application has been brought, it is unsurprising that the Court does not have the benefit, for example, of counsel's opinion as to what the likely measure of damages might be.

37. However, I think that two things can be said about the likely damages (if any).

38. First, the prospect of a breach of duty of care being established is not so obvious as to be a certainty. That is probably all I should say about liability in case the statement of claim is filed. However, it will be clear to anyone familiar with the law in this area, that a claim brought in respect of the conduct of a carer's boyfriend raises issues that will require careful consideration by any court called upon to do so.

39. Second, even assuming in Chris’ favour that a breach of duty were established, it is again not obvious that a large amount of damages will flow (whatever “large” might mean in the present circumstances).

40. Assuming as the evidence regrettably suggests will be the case, the proceedings will be brought on behalf of Chris' estate. In those circumstances, damages will be limited to hospital and medical expenses and what used to be called Griffiths v Kerkemeyer damages, now found in s 15A of the Civil Liability Act 2002 (NSW).

41. In short, and again without predetermining the matter, there is every prospect that damages will be limited to those gratuitous care and other hospital and medical expenses which were incurred as a result of the injuries suffered by Chris in the Incident which would not otherwise have been incurred by reason of his pre-existing, underlying medical conditions. Of course, I have no idea as to the quantum of what those may be, but again there are very real legal and factual questions surrounding the identification of what those damages might be.

42. All of this goes to show that Ms Hartstein's reticence about making any submission as to the likely quantum of damages was, with respect, very well founded. That is not a criticism of her. The Court finds itself in exactly the same position.

43. In my view, whether there is a fairly good chance that a reasonable person would make a particular testamentary disposition must be heavily influenced by the size of the estate. A person could reasonably decide to dispose of an estate of $10,000 in one way, but have quite a different approach to an estate of $1,000,000.

44. The fundamental difficulty with the present application is the complete uncertainty surrounding the amount of damages, if any, Chris or his estate might receive from the proposed District Court proceedings. There is no evidence as to what that amount might be and every reason to think that the claim will be far from straightforward in relation to both liability and damages.

45. With great respect, I share the concern expressed by Palmer J in Re Fenwick about the danger of artificiality or fictions which might attend the exercise of the Court’s discretion in relation to “nil capacity” cases. I share his Honour’s view (see paragraph [25] above) that the law in this area should be “developed in a way which justifies the result by a transparent process of reasoning founded upon reality, not upon contra-factual assumptions.”

46. Confronted with the present distressing and urgent circumstances, there is an understandable reaction of “something ought to be done”. However, that is not a reason for the Court to exercise its jurisdiction or to be satisfied of matters which it otherwise cannot be satisfied about. The Act must be given force and effect according to its terms.

47. For the reason given in paragraph [43] above, I find myself unable to answer the critical question posed by Palmer J (reflecting s 22(b) of the Act) in any rational or principled way in the absence of any evidence as to the likely size (if any) of any award which might be made to Chris or his estate in the proposed proceedings. In those circumstances I am unable to be satisfied within the meaning of s 22(b) of the Act that the will which the Court is being invited to make is one that is “reasonably likely to be one that would have been made” by Chris if he had testamentary capacity.

48. Furthermore, for the same reason, I cannot be satisfied that it even “may be appropriate” (let alone “is…appropriate”) for the order to be made within the meaning of s 22(b) of the Act. In those circumstances, the Court is bound by s 22 of the Act to refuse leave for the application to be made.

49. Even if I were wrong about that, those very same considerations would inform the ultimate exercise of the Court’s discretion. Even if leave had been granted, this is a case where, for the same reasons, the Court would not make the order sought.

50. A further matter I would take into account in declining to make the order as a matter of discretion is Mary’s response to my questions referred to in paragraphs [29] and [30] above. She said that if she were in control of Chris’ estate she would prosecute the statement of claim and, if successful, would apply the funds to the benefit of Chris’ half-siblings. I accept that. I am also mindful of what Lindsay J said in K (see paragraph [27] above). Making a statutory will is an extraordinary step. I do not think the Court should do so in cases where the Court accepts that the person entitled on intestacy will act to bring about the same result as the proposed will.

Conclusion

51. The application will be dismissed. The Court’s orders are:

1. Summons dismissed.

2. The Court notes that the plaintiff seeks no order as to costs.

**********

Amendments

27 April 2018 - Change Service to Services in Case Title

Decision last updated: 27 April 2018