Smith v Public Trustee

[2009] NSWSC 268

CITATION:	Smith v Public Trustee [2009] NSWSC 268
HEARING DATE(S):	02/04/2009
JUDGMENT DATE :	8 April 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ at 1
EX TEMPORE JUDGMENT DATE:	8 April 2009
DECISION:	Paragraph 51
CATCHWORDS:	Family Provision. Application by children of deceased for whom he made no provision. Lack of contact by children with deceased. Whether appropriate to provide for children. - Order for legacies made in favour of children.
PARTIES:	Gavin Richard Smith and Melanie Lynden Smith v Public Trustee of New South Wales
FILE NUMBER(S):	SC 4100/2008
COUNSEL:	Mr RN O'Neill for plaintiffs Mr A Hill for defendant
SOLICITORS:	Coleman & Greig for plaintiffs Anthony Lentini for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 8 APRIL 2009

4100/08 - GAVIN RICHARD SMITH & ANOR v PUBLIC TRUSTEE NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Paul Hornby Smith, who died on 3 August 2007 aged 59 years. He was survived by his two children, who are the plaintiffs in the proceedings. He was divorced from his wife.

Last will of the deceased

2 The deceased's last will was made on 27 July 2007, under which he appointed the defendant as executor. He bequeathed his home unit at Good Street, Westmead to his two nephews, Nathan Smith and Adam Smith. He gave the remainder of his estate to the Fred Hollows Foundation. He made no provision for his children, the plaintiffs.

Assets in the estate

3 The present assets consist of the home unit having a likely value in the order of $300,000 and cash held in the estate of $281,797, a total of $581,797. The costs incurred are as follows:

The defendant $51,000
The plaintiff $46,000

Family history

4 The deceased was born 3 April 1949 and he married in April 1976. He and his wife had two children, Gavin, born in January 1982 and Melanie born in January 1986. In July 1997 the deceased and his wife separated under the same roof. That continued until his wife and two children moved out in December 1997. In due course there were proceedings for divorce and the deceased and his wife were divorced. Under the property settlement she retained the home at Carlingford and the deceased received some $62,540. After the property settlement the deceased's wife and children moved back to the home. Thereafter there was little contact in circumstances which I will detail later.

5 In June 2007 the deceased was admitted to Westmead Hospital with cancer and that was a terminal illness. He was told he only had a few weeks to live and at that time the deceased asked to see his brother, Dennis Smith, to see if the plaintiffs would see him. He also approached a social worker to contact his children. The children decided not to see him and instead wrote to the deceased.

6 He was admitted to palliative care in July 2007. He made his will on 27 July 2007, as I have mentioned. He died on 3 August 2007. Probate was granted and the summons were commenced within time.

Eligibility

7 Both the plaintiffs are eligible persons. In applications under the Family Provision Act (supra) the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

The situation in life of Melanie Smith

8 Melanie is 23 years of age, single and in her final year of her Bachelor of Education, which will enable her to be a primary school teacher. She also works as a teacher's aide and earns $156.07 per week during school term. She lives at home with her mother. Apart from personal assets of no great value she has a car purchased recently for $15,990. Her outstanding HECS balance at June 2008 was $17,733. Given her fees she will owe $27,277 by the time she completes her course. She owes her mother in $11,650 for the loan her mother made so she could buy a car. She did not contribute to the estate of the deceased.

The situation in life of Gavin Smith

9 Gavin is 27 years of age, single and also lives at home with his mother and sister. He works as an engineer, earning a net salary of $760 per week. His expenses, including repayments on his car loan, are $590 per week. He has personal possessions, savings of $1000, shares worth $1000 and a 1997 Subaru outback with 195,000 km on the clock. He has had some medical issues recently but these do not seem to interfere with his work. He has personal and credit card debts of $3154 and a HECS debt of $22,505.

10 It is also necessary to have consideration to others having a claim on the bounty of the deceased. There is evidence of the activities of the Fred Hollows Foundation and it is plainly a worthy charity. The deceased did not have any particular connection with that charity during his lifetime. The other beneficiaries are the deceased's nephews.

Situation in life of Nathan Smith

11 Nathan is 23 years of age and when he swore his affidavit he was engaged to be married on 28 March 2009. He is a Toyota sales consultant earning $30,000 per annum plus commissions. He owns a property in Sutherland purchased two years ago for $300,800 on which he owes $283,000. He has credit card debts of $2000 approximately and expected to have debts for his wedding of some $22,500. He did not contribute to the estate of the deceased. The contact between the deceased and Nathan and Adam was limited mainly to Christmas and birthday functions.

The situation in life of Adam Smith

12 Adam is 20 years of age, single and has no dependants. He works as a reservations agent earning $29,000 per annum. He has no assets or liabilities and presumably lives at home as he has no rental expenses. He, like his brother, did not contribute to the estate of the deceased and had very limited contact with the deceased.

The relationship between the deceased and his children

13 This is the pivotal and very sad issue in this case. After the separation there was virtually no contact between the deceased and his children. Both the children and their mother gave evidence of the difficulties in the family before the separation. Before turning to the evidence on this aspect I should note how the matter has been dealt with in the cases.

14 Section 7 of the Family Provision Act provides that if a Court is satisfied that a person is an eligible person “it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person.”

15 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows:

“This conclusion directly raises the question of whether the word ‘ought’ in s 7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator’s Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.

...

It seems plain from the comparison of the two Acts, and particularly from s 3 of the 1916 Act and s 7 and s 9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.
The Act draws a distinction between the eligible persons referred to in par (a) and par (b) on the one hand and par (c) and par (d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased person spoken of in s 3 of the 1916 Act and s 7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased.
In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin JJ both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that ‘many cases suggest that an applicant must show a moral claim ...’, he went on to say that this was a gloss on the Act that was unwarranted and inconsistent with the language of the legislative scheme.
It seems to me that the introduction into s 7 of the present Act of the word ‘ought’ in replacement of the words from s 3 of the 1916 Act ‘as the Court thinks fit’ shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word ‘ought’ seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par (c) and par (d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par (a) and par (b) although it is unnecessary to decide that in this case.”

16 Meagher JA (NSWLR at 57) agreed with Priestley JA.

17 Meagher JA had previously expressed a view in Hughes v Hughes Court of Appeal unreported 6 June 1989 (an adult daughter case) that the duty arose to make provision as established in that case as follows:

“Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right , but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be.” (Emphasis added)

18 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

19 In Benney v Jones, Mahoney JA at 560 said:

“Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1
Where the applicant is a member of the deceased’s family, as referred to in the earlier paragraphs of s 6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear.”

20 In Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, his Honour noted:

“It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation.”

21 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales’ case) (1962) 107 CLR 9. Scales’ case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18):

“The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. ... In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator’s death.”

22 In Gorton v Parks (1989) 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales’ case. He said:

“Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; ... Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962.”

23 Bryson J in any event distinguished Scales’ case (p 11) on the basis that on the facts before him the plaintiffs:

“In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relation. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. ...”

24 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton’s case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows:

“In Singer’s case, a widow who had been married less than one year to a sixty-eight year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at p 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that ‘we doubt this statement provides useful assistance in elucidating the statutory provision. Indeed, references to ‘moral duty’ or ‘moral obligation’ may well be understood as amounting to a gloss on the statutory language’. They then say ‘the determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”

25 Young J also observed:

“In Fraser’s case, Kirby P at p 29 said that ‘I do not consider that it would be safe for this court, or other courts in this State, to disregard the obiter dicta in Singer v Berghouse concerning ‘moral duty.’ However, his Honour’s decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law ‘either by the observations of the majority in Singer or by the High Court’s reference, in the footnote to what Murphy J said earlier (p 27).’

Handley JA thought that the dicta in the High court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words ‘moral claim’ in decisions under this Act.
Sheller JA again did not consider that the High Court’s suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p 42, ‘the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant’s case but not alone sufficiently to justify an order in the claimant’s favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order.”

26 The concerns expressed about any change in the law as a result of Singer v. Berghouse were recently put to rest by the High Court in Vigolo v Bostin [2005] HCA 11 AT 25, 74-75 and 121.

27 In Walker v Walker (p27) Young J noted:

"I do not consider that there is any purpose in analysing whose fault it was that the state of non--communication came into place. In family relationships, hurts are often inflicted or suffered some times consciously, some times unconsciously. Sometimes a young child is brainwashed by a custodial parent to consider that the other parent has inflicted some harm, which is all in the mind of the custodial parent. It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.
The important matter is not fault but whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.
Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant..."

28 These words were recently approved by Ipp J in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 when he said:

"112. I agree with his Honour's remarks, although I would express the rider that, often, where an applicant is a person within paragraphs (a) or (b) of the definition of ‘eligible person' in s6(1) of the Act, proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his Honour expounds.”

29 At the time of separation children were aged 15 and 9 years of age respectively. The evidence which they and their mother gave showed that the deceased was not physically abusive to the children but that he had been an angry man with abrupt mood swings who could shout at the children in a manner which was very upsetting to them. Although Melanie was quite young and her recollection thus not good, both seemed to be frightened of the deceased by the time of separation.

30 The children's mother's evidence also made reference to the fact that the deceased did attend anger counselling sessions but they apparently did not help as the outbursts and abuse continued until separation in 1997. That this was the case was well illustrated by the example which the children's aunt gave in her evidence. There was no cross-examination on that evidence.

31 Although Young J. refers to the difficulty of working out fault for the lack of communication when one is dealing with children who are separated from their parents the opportunity to reconnect normally arises as the child matures, comes of age and leads a separate life. The community often would expect that a child would at that stage in life make an attempt to reconnect. There will be an infinite variety of cases. The child who has been repeatedly sexually abused would perhaps never be expected to try to reconnect. For his or her own good mental health a lack of further contact may be part of a proper rehabilitation. In respect of a child who has been physically assaulted while the parent is still in the position to inflict harm, there should likewise be no such community expectation that a child might re-establish contact.

32 What of the present situation where the children were afraid of the outbursts and abrupt mood swings as they became older? Should one regard them as being mature enough to change their non-communicative approach to their father? Within the meaning of mature I include the notion that they are now able to overcome their apprehension and fears however they have been generated, be it the actions of the deceased or their mother.

33 In this case it is not a matter which has happened by default. The question was raised by the fact that the deceased, who had been separated from his children for about 10 years, contracted cancer and had a wish to see his children and reconcile with them before his death.

34 This was communicated to the children and they each individually considered what they would do. Both decided not to see him and instead wrote a letter to him explaining their reasons. Gavin's letter was in these terms:

"Dear Paul,

I received word from the hospital of your condition. I am sorry to hear of the cancer.

I don't know what you are expecting to hear from us though. I haven't considered you our father in some time.
Looking back, I cannot think of a time in which our activities together were not overshadowed by the anger you had. I searched, trying to find some memory of you teaching me some skill, or giving me advice, which I could treasure as a happy memory. I cannot think of any. Any cheerful moment was inevitably short lived before some small mistake I made, some trivial problem like a packet not containing enough screws to build a bookcase, or some other obstacle which other people would shrug off or overcome without hesitation, would start you yelling and shouting. For the family, even being at the other end of the house with the doors shut was not enough to drown out the noise. For us the only relaxing time we could have at home was when you were absent.
You must have known your actions were wrong, for you ceased shouting when friends came over. Why you thought friends deserved some courtesy that you would not give your family I have no idea. Most people would not dream of shouting at their pets in the way that you did to your family on an almost daily basis.
The occasional late-night apologies for your actions during the day, although no doubt sincere, cannot possibly make up for the hurt you caused. Nor can any actions now. Do not try and contact me.

I am sorry to hear of the news you received, and it is sad that you have had to receive it. However there is nothing to be achieved in us having contact. If ten years of us not wanting to talk to you is not a final enough goodbye, there is nothing more I can offer you.

Regards,
Gavin."

35 Melanie's was in these terms:

"Dear Paul,

I am terribly sorry you have to suffer through this illness.

Nevertheless I stand by the decision I made 10 years ago. I have no desire to see you.

In your stream of letters you have constantly blamed Mum or Grandma (or anyone else on the Brumbridge side of the family) for not being able to see us. There would also be the occasional letter blaming Gavin or myself. However it is no one else's fault but yours.

I have lived my life in fear because of you. The first half of my childhood was spent cowering in my room after an onslaught of abuse or waiting for your next blast. When Gavin and I made the decision to not see you any more, I spent the next ten years on edge, nervously checking before I left the house or glancing at what car might be following me down the road. I had to change my lifestyle to avoid any contact with you. You had no right to do this to me. It was not fair for a young teenage girl to feel uncomfortable in her own school because she had just been informed that her father was helping out at Business Week, secretly watching her in the playground. Whenever I would leave my Youth Group you would be in a car, in the shadows, just watching. Then you would write a letter describing what I looked like. We couldn't park out cars out the front of our own property because if you drove past we would receive an abusive letter about how spoiled we must be and any other criticism you could think of. You were a stalker.

In your letters, you attempted to entice Gavin and myself by stating how many presents we had missed out on due to not seeing you. You insult us with your comments. I am not a self-obsessed child who rates relationships based on how much money is spent on me.

Apparently we were missing out on presents from the Smith side of the family as well. They missed us terribly and wanted to see us. Again this is a lie. Apart from Granddad, the Smiths made no effort to see us or maintain contact with us. To wish Gavin good luck in his HSC, Dennis had to ring from Granddad's house. For my HSC, which was at the same time as Nathan's so there is no way anyone could have forgotten, I received nothing. No phone call, no card. You could not have tempted us with people who made it very clear they wanted nothing to do with us.

You also spoke negatively of any form of academic praise because that was what our 'evil mother' was good at. Once again you depicted us as stupid little children, incapable of achieving anything or constructing our own thoughts. You accused me of doing poorly at school due to your absence in my life. I finished Year 12 topping the grade for a number of subjects, and was considered for the school dux. I received awards for perfect attendance. My UAI guaranteed me a place in my chosen degree. If that is doing poorly than I would love to see what doing well is like.

You constantly stated it was your right to see us, never that you wanted to. The times we did see you, there was often no food, no activities, and you would scream at us. Through all your efforts to lure us away from our ‘evil mother’ you never offered the things we needed: love, security, and they non-abusive environment. You didn't even pay child support.

By constant prayer when I was growing up was for my family to be just me, Gavin and Mum. You caused this. Mum and Grandma never said anything about leaving you, and it was always Gavin and my decision.

You say we broke your heart but ours was never whole because of you. I almost feel like I have never had a father. You had no right to scream abuse at us, to threaten me, to attempt to manipulate me, or to insult me. You had no right to make me feel scared every time I left the house, especially at my own school and church. I spent my childhood feeling physically sick because of you. When we finally left you, every day I would check the letterbox hesitantly for the next letter telling me what was wrong with myself and Gavin.

Once again, I am sorry you have to cope with this illness, but you have brought this isolation upon yourself.

Regards,
Melanie."

36 The writing of such letters was described in the defendant's submission in the context of the deceased knowing he was dying of cancer in a number of ways. The letters were described as "vicious", "cruel", "couched in terms to hurt" and "making sure the deceased suffered".

37 When Gavin was cross-examined on the matter it became apparent that he was still greatly affected by his experiences at his father's hands. He was mature enough to recognise that if his father had genuinely changed that he would welcome an opportunity to re-establish contact. He had, however, seen nothing to show that his father had changed.

38 Some of the many letters received during separation are in evidence. They swing between unfounded criticisms and praise.

39 Melanie made it plain that she hated the idea that he was going to die alone but she felt sick in the stomach at the thought of going to see him. She was fearful that he would be angry if she did not say what he wanted her to say. She also annexed some of his letters to her. They also show swings from one emotion to another.

40 There was also the deceased's actions in this period which affected the children. His sneaking into the backyard and leaving presents. His spying on Melanie to see her come out from church or to catch the bus at the school bus stop. These added to the continuation of her fears. The effect her father had on Melanie led her to having to undergo extensive counselling between 2004 and 2007. She is still being treated for depression. She in fact consulted a counsellor about her response to her father.

41 Gavin was also concerned about his father stalking him. The effect this still had on Gavin is illustrated by the fact that after he heard his father was ill he used to spend his time in the front room of the home in order to prevent anyone else from having to answer the door if he arrived. He was prepared to be the person to intercept his father and prevent any upset to his mother and sister.

42 In my view both the children's letters are carefully considered and appropriate responses to the continuing difficult situation in which they were placed by the deceased.

43 I accept that at the time both children were still very frightened of their father and nothing had changed in his approach to them. I think they made the right decision.

44 No doubt the deceased was hurt by their response but it was the result of his own actions. I would not refuse them relief because of their rejection of their father.

45 It is necessary to see how the plaintiffs say they have been left without adequate and proper provision for their maintenance, education and advancement in life.

46 Gavin is well established in his career. He has debts of some $26,000 but otherwise has no pressing needs. He is fortunate that he can still live at home, although he must soon be at the time when he will want to live alone with all the financial responsibilities that will entail.

47 Melanie also has HECS debts of $17,733, which with her further fees will rise to $27,277. She also owes her mother in $11,650, being the balance of her car loan. Before long she is likely to have expenses living away from home.

48 Their proper provision should be seen in the light of competing claims on the deceased bounty by those to whom he left his estate. One of these is a worthy charity with which the deceased had no contact. In Vigolo v Bostin [2005] 221 CLR 191 Gleeson CJ had this to say at para [13]:

"Similarly, when courts come to address the discretionary question of making fit provision, they had to consider the interests of those upon whom the burden of an order might fall. In making decisions, courts have had regard to competing claims upon a testator (or, later, a person who died intestate). It would now be regarded as self-evident that a court would be readier to disturb a testamentary provision in favour of a beneficiary, such as a charity, with whom a testator had no connection than a provision in favour of dependent relatives. Why is this so? The answer, again, lies in concepts of moral obligation."

49 The charity fits the description of his Honour but his nephews could hardly be described as dependent on the deceased. Effectively neither is a competing claim.

50 In these circumstances I think that each of the plaintiffs should receive a legacy of $150,000.

51 The orders that I make are as follows:

1. That each of the plaintiffs receive a legacy of $150,000.
2. The plaintiffs' costs on the ordinary basis up until 31 January 2009 and on the indemnity basis thereafter and the defendant’s on an indemnity basis be paid or retained out of the estate of the deceased.
3. Each legacy to bear interest at the rate provided for under the Probate and Administration Act 1898 if not paid within three months of this date then on and from that date.
4. The burden of such a legacy and costs shall be borne as to one-third by the share of the estate passing to the deceased's nephews and as to two-thirds by the share of the deceased passing to the Fred Hollows Foundation.
5. Exhibits returned.

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