Wheatley v Wheatley

[2006] NSWCA 262

New South Wales

Court of Appeal

CITATION:	WHEATLEY v WHEATLEY [2006] NSWCA 262
HEARING DATE(S):	08/09/09
JUDGMENT DATE:	22 September 2006
JUDGMENT OF:	Santow JA at 1; McColl JA at 2; Bryson JA at 3
DECISION:	(1) Appeal allowed with costs; (2) Order 1 of the orders of McLaughlin AsJ of 3 August 2005 is varied so as to delete $78000 and to substitute $168,000; (3) Order that the costs of the appellant of the appeal be paid by the respondent out of the estate of the testatrix and be a charge against the Alma Street property
CATCHWORDS:	FAMILY PROVISION – adult son – poor relationship with mother (testatrix) – telephone communication but no visits for 13 years – Estate about $1.4 million (family house) left to sister who had strong claims on testatrix’s bounty – testatrix, difficult personality, left long letter of grievances to explain making no provision for son – son invalid after heart attack when aged about 39, now aged 58, owned home unit in poor condition, receives disability support pension, bank accounts $10,000, otherwise assets of small value. Trial Judge ordered provision of $78,000 being $40,000 dental work, $28,000 repairs and renovations, $10,000 other provision: increased on appeal to $168,000. Consideration of significance of poor relationship and hostility.
LEGISLATION CITED:	Family Provision Act 1982 ss.7, 9(3) Supreme Court Act 1970 s.75A Family Law Act 1975 (Cth) s.93A(2)
CASES CITED:	Bosch v Perpetual Trustee Co. Ltd [1938] AC 463 CDJ v VAJ (1998) 197 CLR 172 In Re Allen Deceased, Allen v Manchester [1922] NZLR 218 Re Allardice, Allardice v Allardice (1910) 29 NZLR 959 Singer v Berghouse (1994) 181 CLR 201 Wentworth v Wentworth, Estate of G. M. Wentworth (unreported 14 June 1991)
PARTIES:	John Christopher Wheatley - Appellant Robin Judith Wheatley - Respondent
FILE NUMBER(S):	CA 40701/2005
COUNSEL:	R.J. Colquhoun - Appellant A.L. Hill - Respondent
SOLICITORS:	Fitzpatrick Solicitors - Appellant David Carson - Respondent
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 5145 of 2003
LOWER COURT JUDICIAL OFFICER:	McLaughlin AsJ
LOWER COURT DATE OF DECISION:	03/08/06
LOWER COURT MEDIUM NEUTRAL CITATION:	[2005] NSWSC 785

CA 40701/05

SANTOW JA
McCOLL JA
BRYSON JA

FRIDAY 22 SEPTEMBER 2006

JOHN CHRISTOPER WHEATLEY v ROBIN JUDITH WHEATLEY

Judgment

1 SANTOW JA: I agree with Bryson JA.

2 McCOLL JA: I agree with Bryson JA.

3 BRYSON JA: The appellant Mr Wheatley appeals against the order made by McLaughlin AsJ on 3 August 2005 in Mr Wheatley's claim under the Family Provision Act 1982 for provision out of the estate of his late mother Beverley Denise Wheatley, also known as Beverly Mabel Wheatley. The Trial Judge ordered provision of $78,000, and Mr Wheatley claimed on appeal that the provision ought to be increased to $218,000. The testatrix died on 10 October 2002 aged about 81 years, and on 20 December 2002 probate of her last will dated 1 October 1994 was granted to Ms Robin Judith Wheatley, defendant in the Equity Division and respondent in this appeal. Ms Wheatley is the only other child of the testatrix. The will gave the whole of the estate of the testatrix to Ms Wheatley, and contained these provisions referring to Mr Wheatley: (Blue 12 [3]-[4])

3. I HAVE MADE NO PROVISION in my Will for my son JOHN CHRISTOPHER WHEATLEY as I consider that he is not entitled to any provision out of my estate by reason of his conduct and actions towards me which I have detailed in writing at the time of signing this my Will.
4. I AM ALSO MINDFUL of the action of the said JOHN CHRISTOPHER WHEATLEY in appropriating the sum of approximately Forty Thousand Dollars ($40,000.00) of money belonging to my late mother MABEL MAUD OAKEY in her lifetime without her knowledge or approval resulted in a reduction in the estate of my late mother of which I was sole beneficiary.

4 Soon after executing the will the testatrix sent the will to her solicitor for safekeeping, and enclosed a letter dated 30 November 1994 to her solicitor explaining the absence of provision for Mr Wheatley in the will.

5 The principal asset of the testatrix was the house property in which she and Ms Wheatley lived at 6 Alma St Clontarf, the most recent valuation for which at the time of the orders under appeal was $1,400,000. The other assets of the testator were relatively small in value; they consisted of jewellery, furniture, an old motor vehicle, company shares and a bank account the values of which, as stated in the application for probate, totalled $12,572.87. The only other asset was a loan of $50,000 owing by Ms Wheatley to the testatrix. The testatrix had liabilities which were a little over $8,000. The estate does not include any significant liquid assets, and the only source out of which costs of administration, provision for Mr Wheatley and costs of litigation may be paid is the sale or mortgage of the house property.

6 On the basis of findings of the Trial Judge, the relevant circumstances of Mr Wheatley are these. He was born on 28 February 1948, and was 57 years of age when judgment was given. He lived with his parents and his sister at the family home at 6 Alma St Clontarf until his father died unexpectedly at the age of 42 on 26 February 1963. The testatrix and her children then lived for some years with the testatrix’s mother Mrs Mabel Oakey at Mrs Oakey’s house in Sans Souci. In 1971 Mrs Oakey sold the Sans Souci house, the family moved back to Alma Street, which had been rented out, and in 1972 Mrs Oakey bought a house in Vista Ave Balgowlah Heights; she lived there until 1984 when she went into a nursing home. The testatrix, under a power of attorney from Mrs Oakey, then sold Mrs Oakey's house at Balgowlah Heights.

7 Mr Wheatley finished his schooling at the end of 1963, went into employment, studied accountancy part-time and became a member of the Institute of Affiliated Accountants in 1973. He was in employment from 1963 until 1987; he then gave up work after suffering a heart attack, and he has not had employment since 1987. At first he received sickness benefits and since 1992 he has received a disability support pension. Mr Wheatley owns a home unit in Gottenham Street Glebe, which he bought in 1982. After buying the home unit he lived there for three months, and then returned to live with Mrs Oakey at Balgowlah Heights. In 1984 he returned to the home unit at Glebe, and he has lived there ever since.

8 Mr Wheatley has never married but has two ex-nuptial daughters who do not live with him. The elder daughter was born in January 1987 and is now a student. The younger was born in August 1990. Each daughter lives with her mother. Mr Wheatley has an obligation to pay child support for his younger daughter, and this is deducted from his disability support pension.

9 Mr Wheatley's principal asset is the home unit at Gottenham Street Glebe. He ascribed the value of about $300,000 to the home unit. He also owns investment accounts in banks, and in oral evidence said that the total moneys held in those two bank accounts was (he first said) $9,000 or (he later said) $10,000. He also owns personal effects and household furniture and furnishings, and a 1970 Mercedes-Benz motor car, unregistered and unroadworthy, to which he ascribed the value of $1000.

10 Mr Wheatley’s income is the disability support pension; at the time of the hearing he received a net amount of $436 a fortnight, after an allowance for pharmaceuticals and a deduction for child support. For all practical purposes his income is entirely expended in his outgoings and normal living expenses. He is also entitled to a small amount of interest on his bank deposits; in the order of $400 per year.

11 The home unit at Glebe was, at the time of trial, in a state of decay, disrepair and dereliction and in need of considerable renovation and refurbishment. Mr Wheatley contended and the Trial Judge accepted that $28,000 would enable him to effect repairs on his home unit including replacement of appliances and furniture. Mr Wheatley also claimed that he was in need of extensive dental treatment the estimated cost of which was $40,000, and the Trial Judge accepted this claim.

12 Plainly Mr Wheatley is in a poor state of health and does not have any capacity to earn income. He has seen many medical practitioners. Reports of two were put into evidence; and they express views about his condition which do not completely coincide. Dr Barry Blicharski, consultant psychiatrist, was of the view that there was a possibility that his condition was caused by chronic fatigue syndrome following a viral illness in about 1993, and that his recent symptoms fitted a diagnosis of generalised anxiety disorder; he had no capacity to work and his symptoms were likely to continue at the present level on an ongoing basis. Professor Andrew Lloyd, who is a consultant physician in infectious diseases, was of the view that the principal diagnoses were ischaemic heart disease, present to a disabling degree, and generalised anxiety disorder; Professor Lloyd did not regard a diagnosis of chronic fatigue syndrome as plausible. Professor Lloyd’s prognosis was poor, Mr Wheatley had no likelihood of returning to functional status and would need a combination of ongoing specialist medical care and specialist psychiatric care. Both medical specialists support the diagnosis of generalised anxiety disorder.

13 In my assessment Mr Wheatley's position is one of considerable hardship, his assets are insufficient to sustain him in even a minimal degree of comfort and adequate housing, his income is at a bare minimum for his maintenance, and he has a need for provision by way of advancement in life, so as to have resources to meet needs as they arise, and also by way of maintenance, to produce income to maintain him above the minimal level provided by his disability support pension.

14 Ms Wheatley was born in May 1955. She had employment at Coles from 1971 to 1979, and again had employment in 1987 for six months employed by Lifeline. She then became the testatrix’s full-time carer; and from 1994 onwards she received a carer's pension. After the testatrix died Ms Wheatley was employed by WC Penfolds as a shop assistant, but that employment ended in March 2004 when her employer went into administration. The wages were very modest - $400 a week gross. She has not been employed since. She receives or is entitled to receive unemployment benefits. Apart from the property which passed to her under the testatrix’s will she has very few assets, principally bank accounts with credit balances totalling about $1600. She gave an estimate of her weekly outgoings at $502. Provision made for her in the testatrix’s will appears to me to recognize very strong claims which she had in view of her having lived at home and cared for the testatrix, for part of the time on a carer's pension; and from her general position as an unmarried adult daughter who has always lived with and shared the household of her late mother. Quite apart from the merits of her position, she has all the strengths of her legal right to the testatrix’s assets, subject only to such provision as it is proper to order under Family Provision legislation.

15 The circumstances of the parties and of the estate assets seem to make it clear that, whether or not the provision made for Mr Wheatley is increased on appeal, the house at Clontarf will be sold; Ms Wheatley in her circumstances does not appear to be in a position to borrow money on the security of the house as she is not in a position to repay funds borrowed. On the value of $1,400,000 attributed to the house, payment of the costs of administration and of the litigation, and of any provision which it might reasonably be supposed should be awarded to Mr Wheatley, would leave her with quite adequate resources to provide for her own housing and otherwise provide for her needs; Mr Wheatley's claim does not threaten her economic well-being.

16 On the facts which I have mentioned so far Mr Wheatley falls fully and clearly within a class of adult son which has long been recognised as appropriate for provision out of the estate of a deceased parent. There is no doubt that he has satisfied the first part of the two-stage inquiry described in Singer v Berghouse (No 2) (1994) 181 CLR 201 at 210-211. The Trial Judge was of the view that that test had been satisfied, as he did order provision; and it has not been disputed on appeal that that was appropriate. There is an express finding that the plaintiff was left without adequate provision for his proper maintenance – (Judgment [44] Red 10). The issues on appeal relate to the second or discretionary part of the two-stage inquiry, the court's discretionary power, under s 7, to order provision such as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made, be made for the maintenance or advancement in life of the eligible person. In making that decision the court is empowered by s 9(3) to take several matters into consideration including:

9 Provisions affecting Court’s powers under secs 7 and 8
(3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration:
(a) …,
(b) the character and conduct of the eligible person before and after the death of the deceased person,
(c) circumstances existing before and after the death of the deceased person, and
(d) any other matter which it considers relevant in the circumstances.

Paragraph 3(a) relating to contribution to the property or welfare of a deceased person is not relevant: Mr Wheatley made none.

17 To address the exercise by the Trial Judge of this discretion it is necessary to notice the terms of the letter of the 13 November 1994 in which the testatrix explained her having made no provision for Mr Wheatley (Blue 43):

I wish to disinherit my son John Christopher Wheatley because of his disrespectful, volatile, physical and vocal abuse of both my daughter Robin and myself; i.e. pulling the phone cord out of the wall whilst whilst I was having a conversation - to gain attention (at 17 years old). Once when I had a broken right arm, pushing me over in temper. Calling me foul names such as ‘old tart, mongrel dog and bloody bastard (I was in my 40's.) The vilifications were so stressful & [distressing] I was forced to ask the help of my solicitor DAVID CARSON to make him go to live with his Grandmother (he was 22 years of age at that time). He also put his [Mercedes] car in my garage after putting my car out on the lawn - saying his was valuable, mine was only a Mini Minor.

He never forgave me, telling everyone I ‘kicked him out because I never wanted him’. He has a sadistic streak in him, I had noticed. i.e. when he was told of his father's sudden death by relatives; he came upstairs and said to me when I was in shock – ‘I thought it was you, I WISH IT HAD BEEN YOU’. He always denied it, and I have proven he is an [unmitigated] LIAR and selfish; thinking of himself & what he would miss! David Carson has paper to prove that he tried to take over all His Grandmother's money when she was in a nursing home and sold her house. I was the Power of Attorney - but he took the cheque up to the Bank & put it all in his Name in a investment and paid [off] $40,000 owing on his unit. I was ill at the time and trusted him. Re the $40,000.

John had said to me ‘ROBIN WILL FIND IT HARD WHEN YOU DIE AND I TAKE OVER!’ THIS MUST NEVER HAPPEN . As John would bring one of his Asian girlfriends (often teenage illegal) and their babies (he has had about 4 different ones which he has never kept.) He would make an absolute servant of Robin and she would have no say whatsoever - when she owns practically everything in the house.

When John was 44 he had a coronary. After going to St. Vincents Hospital in February - in heat wave conditions-everyday (at that time I had this muscle disease but did not know what it was) - we brought John home for a few days. He wanted us to give him a party for his friends. I was very tired-and Robin after cooking special food for Heart patients-(the recipe book we had obtained from the Hospital) Saying we were too tired in the heat, sorry! He abused us and punched Robin twice in the back of the neck (was sore for a week)! We ran into my bedroom and locked the door, as we were afraid of him. He kept kicking at the door every time he passed it in between going down to the phone and ringing up his friends to pick him up. He said after ‘it was the drugs that made him do it!’

When we moved back to the house (after 7 years of letting it furnished ) it was in shambles, everything worn and shabby - carpets threadbare. John said; ‘This house is as much [mine] as yours because it was my Fathers’ He insisted on eating his meals at the head of the dining room table and treated me as servant. He took over and did absolutely nothing . When asked to help would say ‘[do] it yourself! We had a good lawn mower in the garage, that I had to employ a mower man and to do odd jobs. This was prior to my having to put [him] out. He was 22 at the time.

Apart from that John has no rights to this House as he has done absolutely nothing either physically or monetarily! - in the ensuing [years]. On the contrary, Robin has done everything, later with the help of my late fiance. When Robin began working, she gave me generous board, and began replacing the damaged items at her own expense. i.e. washing machine, fridge, carpets. And this has gone on until now!

A few years ago I contacted the muscle disease which makes me very frail on my legs and arms. She has had to take over the heavy chores - housework, laundry, gardening, shopping etc. This week the Dr (Ryan) as helped claim a CARER'S ALLOWANCE as Robin [is] unemployed.

In all this John has never offered to help.

18 This letter of course makes a severely adverse depiction of Mr Wheatley but it also casts a ghastly light on the relationship between Mr Wheatley and the testatrix, and the testatrix’s attitude to him, as they were in 1994. Her disposition and state of mind were far from those of the wise and just testatrix who is brought into consideration for the purposes of family provision legislation – see Bosch v Perpetual Trustee Co. (Ltd) [1938] AC 463 at 478-479 citing In Re Allen Deceased, Allen v Manchester [1922] NZLR 218 at 220. When the evocation of a hypothetical testator first appeared the testator was spoken of as just, but not loving, if stern: See Re Allardice, Allardice v Allardice (1910) 29 NZLR 959 at 972-973 (Edwards J.). The characteristic of being stern left the process of illustration early; the testatrix would not have met that characteristic either, as there is no trace of objectivity in judgement in her letter, and she held against Mr Wheatley an array of (as she remembered them) misdemeanours of a wide range of intensity of importance going back for about 30 years. The main burden of the letter is that the relationship between them had been very poor, that Mr Wheatley had not behaved well towards his mother or done anything for her and that the contrast with contributions to her welfare made by Ms Wheatley was very adverse to Mr Wheatley.

19 One point at which the complaints made in the letter can be reduced to something relatively concrete is the claim that Mr Wheatley had in some way misapplied $40,000 of the proceeds of Mrs Oakley's house sale to pay off the mortgage on his unit, in some event which disappointed the testatrix’s trust of him. What substance if any underlay the testatrix’s grievance relating to the application of $40,000 towards Mr Wheatley's mortgage was the subject of exploration in evidence, endeavours by Mr Wheatley to explain his own position and findings in paragraphs 50 and 51 (Red 11) of the judgment. As the Trial Judge saw it, the complaint eventually was that Mr Wheatley's conduct had depleted Mrs Oakley's assets of about $40,000, correspondingly reducing the size of Mrs Oakley's estate when, after her death, the residue of the estate passed to the testatrix. The Trial Judge's observations at paragraph 51 have the effect that none of the persons concerned made a claim against or otherwise behaved towards Mr Wheatley as if he had an obligation to repay $40,000. In my understanding the Trial Judge did not uphold the assertions made on this subject in the letter.

20 The Trial Judge explicitly directed himself in the terms of s 9(3)(b) (Judgment [45] Red 10) on the relevance of character and conduct of Mr Wheatley, and said among other things (judgment [46]): “It should be emphasised that an order for provision is not made as a reward for services or good conduct on the part of an applicant. Neither is such an order withheld as punishment for perceived bad conduct on the part of an applicant." This direction was correct.

21 The Trial Judge made adverse observations on Mr Wheatley's credibility. Plainly he did not form a favourable impression of Mr Wheatley, and this is not surprising in view of his circumstances, the sad history of his relationship with his late mother, and his generalised anxiety disorder. The interaction of Mr Wheatley's disabilities and personality with those of his late mother produced an outcome which none could applaud: yet, as family ties do, the relationship continued in a manner, as is shown by the continuing telephone contact: not quite as frequent as Mr Wheatley claimed at some points in his evidence, but it continued nonetheless. Conduct such as that of Mr Wheatley towards a parent could put an end to any hope of substantial provision in a small estate. However the estate of the testatrix is not small, Mr Wheatley's claim does not threaten the well-being of any other person, and the jurisdiction exists by reference to these (and other) matters in s 9(3), to infuse objectivity into succession decisions and to redress unduly great influences of antipathies where this is necessary to make the provision that ought to be made for maintenance or advancement of Mr Wheatley. With his medical history, style of life and anxiety disorder Mr Wheatley was not in a position to make a good discharge of filial duty: in their own way, his shortcomings enhance his claim.

22 In Wentworth v Wentworth, Estate of G. M. Wentworth (unreported 14 June 1991) I made these observations on estrangement or hostility between a testator and his adult child.

I do not regard a state of estrangement or even hostility as necessarily bringing an end to any moral duty to make provision for an eligible person, whether wife, son, daughter or other. When there is an estrangement the application of s7 requires that it should be appraised and its causes should be considered. A long-standing severance of a relationship with a parent, or even a clearly-established termination of all communication is not in the present age regarded as necessarily putting an end to moral duty; it may do so, but whether it does calls for appraisal in each case and is not reduced to a clear principle. Respectful submission to paternal wishes, even if they are reasonable, is not a condition of paternal duty. A whole view of the relationship and the character and conduct of both parent and child should now be taken, and the influence of character can be complex. Sometimes people's characters cause them to be poorly disposed towards their parents, and the influence of this on a parent's moral duty is not solely adverse to the child: people's behaviour is influenced by their characters in ways from which few can escape, and of all people their parents have had most time and opportunity to influence character, understand it, become reconciled to it and tolerate its workings when unpleasant.

In another age a different interpretation of the community's sense of moral duty was probably correct, but it is my task to interpret moral duty in my own times. The idealised just and wise testator of the present age knows now that he should not expect submission to his wishes, and knows that his children will be themselves no matter whether he likes it or not, and that they will feel free to interact with any hostile or unreasonable conduct of his own. Courts no longer attribute the characteristic of being stern to the idealised testator, reflecting a marked change in perceptions of moral duty since 1910 when Edwards J spoke in Allardice v Allardice (1910) 29 NZLR 959 at 973 of a father who was just and stern but not loving. Long periods of hostility or estrangement are not inconsistent with successful applications and the contribution of the testator is examined: see for examples Gorton v Parks (1989) 17 NSWLR 1, Howarth v Reed, Powell J unreported 15 April 1991.

23 This passage was not commented on adversely in the leading judgment in the Court of Appeal, which varied my orders: Wentworth v Wentworth (CA NSW) (unreported 3 March 1992). Although it is no longer appropriate to epitomise the test in s 7 by speaking of moral duty, the observations I then made continue to express my view.

24 References to elements of character and conduct adverse to Mr Wheatley to in the judgment include (Judgment [22] Red 6):

22 The Plaintiff had not seen the Deceased during the last thirteen years of her life, although he insisted that they maintained frequent and regular, and amicable, telephonic communication throughout that period.

25 In relation to this the Trial Judge referred to evidence of Mr Wheatley that essentially he was housebound, spent much of his time in bed and relied on occasions on Meals on Wheels for food, and that a friend did shopping for him (for which service Mr Wheatley paid). The Trial Judge referred to the fact that Mr Wheatley's evidence was that he travelled on foot from Glebe to the court building for the hearing of the proceedings. The Trial Judge's reference to this shows that he did not fully accept Mr Wheatley's explanation of his inability to visit his mother.

26 The Trial Judge observed (Judgment [30 & 32] Red 7) on the obligation or practical need for an applicant for place relevant information before the court fully and frankly, and on the unsatisfactory way in which Mr Wheatley set about doing so in that he did not address the complaints made against him in the testatrix’s letter until a relatively late stage in the adduction of evidence and then did not address the matters fully, so that it was left to counsel for Ms Wheatley to elicit under cross-examination whatever explanations or responses he might have. Mr Wheatley essentially denied the truth of the statements made by the testatrix and said in one respect that she was lying in speaking of his “disrespectful, volatile, physical and vocal abuse of both of my daughter Robin and myself”. While observing that it should be appreciated that testators are only human the Trial Judge said: (Judgment [39] and [40] Red 10)

39 Nevertheless, I regarded the Plaintiff as a most unsatisfactory witness, whose evidence (at times inconsistent - for example, concerning his shopping arrangements) I considered unreliable. I prefer the statements made by the Deceased to the denials offered by the Plaintiff.
40 It was abundantly obvious that, had the Plaintiff so wished, he could have seen his mother after 1989; but that he chose not to do so. I do not accept the evidence of the Plaintiff that throughout the last thirteen years of the Deceased’s lifetime he maintained a regular, frequent and amicable telephonic relationship with his mother.

27 The Trial Judge did not accept that the conduct of Mr Wheatley disentitled to him from any provision, and appears to have disposed of the issues of character and conduct by the findings I have referred to relating to $40,000 from Mrs Oakley's estate and by saying: (Judgment [49] Red 11)

49 I am not unmindful of the conduct of the Plaintiff towards the Deceased. However, much of the conduct complained of occurred more than thirty years ago when the Plaintiff was aged only in his early twenties. The Plaintiff had not resided with his mother during the thirty years preceding her death. Essentially, the conduct complained of by the Defendant in the later years of the Deceased's lifetime was the absence of any effective contact by the Plaintiff with the Deceased. I have already expressed my view that I do not accept the evidence of the Plaintiff concerning the extent of his telephonic contact with his mother during the last thirteen years of her life, and my conclusion that there is no doubt that the Plaintiff, had he wanted to do so, could have visited his mother during that period.

28 In my opinion the Trial Judge's finding that there was an absence of effective contact by Mr Wheatley with the testatrix, and that had he wanted to he could have visited the testatrix during the last 13 years of his life, were well justified upon the evidence before the Trial Judge, and were relevant when considering character and conduct, and the circumstances existing before the death of the testatrix, referred to in s 9(3)(b) and (c). Although the Trial Judge did not spell this out it is plain to me, from the amount which the Trial Judge decided to order, that character and conduct had a severely adverse effect in the exercise of the discretion at the second stage. The provision ordered is so low that the decision cannot be understood in any other way.

29 At the hearing of the appeal counsel for Mr Wheatley applied for the reception of further evidence relating to issues under s 9(3). The appeal is an appeal by way of rehearing under s 75A of the Supreme Court Act 1970 and the Court of Appeal is empowered by subs (7) to receive further evidence: in the present case, after a trial on the merits, this power is affected by subs (8) – “… The Court shall not receive further evidence except upon special grounds." The discretionary power to receive further evidence is a wide one but the discretionary considerations which arise take paths which recur. The considerations were referred to in CDJ v VAJ (1998) 197 CLR 172 in the judgment of McHugh, Gummow and Callinan JJ at 200[104] – 204[116]. Their Honours’ attention was directed to s 93A(2) of the Family Law Act 1975 (Cth), and it should be kept in view that the interest of the child, who was not a party, in any parenting order had some influence on their Honours’ consideration, and that there was no “special ground” requirement in s 93A(2). The power to admit further evidence is a remedial power which does not exist at common law, and should be construed liberally. It exists to support jurisdiction to determine whether the order below was correct, and to serve the interests of justice. The force which the evidence is likely to have if admitted is an important consideration. The admission of further evidence is seldom permitted where its admission requires a new trial. The likely effect of the further evidence on the appellate court’s view of evidence before the Trial Judge is an important consideration when the appellate court is to evaluate the evidence on appeal. Other discretionary factors are the availability of the evidence at the trial and the need for finality of litigation.

30 One body of material which the appellant wishes to put in evidence as further evidence consists of telephone records which establish the length of time of telephone calls from Mr Wheatley's telephone number to the testatrix’s telephone number for part of the period of 13 years referred to. At the trial records were put in evidence which showed the dates and number of telephone calls, but do not show the length of those calls. It was contended that evidence showing, in the case of some but not all of those telephone calls, that they lasted for considerable periods of time, sometimes in the order of 60 to 80 minutes, would have a significant impact on findings by the Trial Judge. In my opinion evidence establishing the length of time spent on some relevant telephone calls is very unlikely to form the basis for a finding significantly different from that of the Trial Judge, which was to the effect that he did not accept that Mr Wheatley maintained a regular frequent and amicable telephonic relationship with his mother. The length of the telephone calls was no indication whether or not they were amicable, and the difficulty of absence of visits would remain.

31 Another body of further evidence which Mr Wheatley wished to put in evidence on appeal consisted of documents of Manly Hospital Psychiatric Unit; a large body of documents relating to treatment of the testatrix over many years, some from 1985, some from 1991 and 1992, principally from 1995 and 1996, and further relating to treatment early in the year 2000. This material would show that there were repeated and significant episodes during which the testatrix was hospitalised with mental illness, including periods when she was compulsorily detained.

32 In my opinion it was already abundantly clear from the evidence before the Trial Judge that the testatrix was an extremely difficult personality. This would not furnish an explanation or excuse for the poor state of communication between Mr Wheatley and the testatrix; and was not in substance the explanation which he put forward at the hearing.

33 All of this material could have been made available in the course of a well-considered preparation for the hearing; and in so far as any of it acquired a significance which had not been foreseen during the hearing, could have been the subject of an application for an adjournment to make up the deficiency; and this course was not taken.

34 If the material were admitted in evidence it might change the appearance or force of some aspects of the appellant's case, but is unlikely to produce a substantially different outcome. The central question of absence of visits and poor communication would be little affected. The power to admit further evidence is not available for second thoughts on how a case should have been conducted, in the absence of some great significance of the omitted matter. Nothing has been shown which in my view could constitute special grounds within the meaning of s 75A(8). In my opinion the proposed further evidence should not be admitted.

35 The Trial Judge's disposition of the second stage appears from paras [52] & [53] of the judgment (Red 11-12):

52 Despite the conduct of the Plaintiff and the very significant competing claim of the Defendant, nevertheless, the Plaintiff’s health problems, which appear to be genuine and which are largely the cause of his reduced circumstances and lifestyle, are such that I consider that in the exercise of its discretion the Court should make an order for provision in favour of the Plaintiff. That order will in amount be nothing like what is being sought by the Plaintiff (he is asking for $218,000).
53 I consider that the Plaintiff should receive a sum to enable him to effect repairs to his home unit, including the replacement of appliances and furniture, in the amount submitted on his behalf, being $28,000; together with an amount of $40,000 for necessary dental treatment. I consider the amount claimed by the Plaintiff as a capital sum to provide an after tax cash flow (consisting of income, capital and pension) at the rate of $700 a fortnight (in accordance with the evidence given by an actuary, Mr. Bruce Thompson) to be excessive in the extreme. He should receive a small capital sum to meet unexpected contingencies. I consider that $10,000 is appropriate. In my conclusion, the Plaintiff should receive out of the estate of the Deceased a legacy in the sum of $78,000.

36 On appeal it was contended that the provision ordered was so low as to be outside the range available in the exercise of a sound discretion, and that the Trial Judge's order should be set aside and that the Court of Appeal should itself determine what provision should be ordered.

37 The poor state of the relationship between Mr Wheatley and the testatrix, illustrated by the absence of visits during the last 13 years of her life, operates to restrain amplitude in the provision to be ordered. However Mr Wheatley is an eligible person, the testatrix’s only son and one of her only two children, and his needs are severe and go far beyond the needs for renovation of his flat and dental treatment which the Trial Judge’s order provided for. Amplitude would not be appropriate in ordering provision for him, but it must be observed that provision for him, even the full amount nominated by his counsel, would not produce any hardship for Ms Wheatley, who would still be provided for on a scale according full and appropriate recognition to her claims. Mr Wheatley's claims can in my opinion be classified as a claim for advancement in life in that he has no significant funds to meet any adverse contingencies, or to advance his circumstances in life at all; the only mitigating element is his ownership of his home unit, and otherwise his circumstances are as restricted as they well could be, in the Australian community where there is a social welfare system but it makes minimal provisions, in the context of expectations in Australian society. He has nothing to fall back on. He also has no income from capital which could supplement, even in a small way, his disability support pension. For practical purposes, if ever his circumstances become in any way more adverse, he has nowhere to turn; nowhere that is apart from the funds of about $10,000 which he has in banks.

38 In my judgment the element of $10,000 in the provision ordered does next to nothing to meet his claim for advancement in life and for maintenance. It appears clearly to me that, in some way which had not been expressed, the exercise by the Trial Judge of discretion at the second part of the two-stage inquiry has miscarried; the probability is, although this was not expressed, that undue weight has been given to the circumstances of character and conduct adverse to Mr Wheatley under s 9(3)(b). Mr Wheatley's conduct did not disqualify him from provision, or, what is practically the same thing, did not make it appropriate to give him a provision so low that it did not change his circumstances. In my judgment the discretion of the Trial Judge miscarried, the order should be set aside, and the Court of Appeal should make an order for a provision in which $100,000 is substituted for $10,000 for which the Trial Judge provided.

39 In my opinion the Court of Appeal should make the following orders:

(1) Appeal allowed with costs.

(2) Order 1 of the orders of McLaughlin AsJ of 3 August 2005 is varied so as to delete $78000 and to substitute $168,000.

(3) Order that the costs of the appellant of the appeal be paid by the respondent out of the estate of the testatrix and be a charge against the Alma Street property.

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