Wright v Gibbeson

[2009] NSWSC 1367

CITATION:	Wright v Gibbeson [2009] NSWSC 1367
HEARING DATE(S):	02/12/2009 and 03/12/2009
JUDGMENT DATE :	8 December 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ at 1
EX TEMPORE JUDGMENT DATE:	8 December 2009
DECISION:	Paragraph 77
CATCHWORDS:	Family Provision. Application by an 18 year old daughter who had little contact with deceased after age of 3 months. Order for provision varying results on intestacy to also increase provision for two other daughters of deceased.
PARTIES:	Catherine Anne Wright v Helen Gibbeson
FILE NUMBER(S):	SC 6191/2007
COUNSEL:	Mr P Bates & Miss P White for plaintiff Mr J Atkin for defendant
SOLICITORS:	Gerard Malouf & Partners for plaintiff Browns the Family Lawyers for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 8 DECEMBER 2009

6191/07 CATHERINE ANNE WRIGHT v HELEN GIBBESON

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late John Barry who died on 22 February 2006. The deceased was survived by his widow, the defendant, a child by a former relationship, the plaintiff, and two children from his marriage.

Assets in the estate

2 The estate has been partly reduced to cash amounting to $538,185. The deceased also had a one-quarter share in a property at Hamlyn Terrace, his share being worth $110,000. These total $648,185.

3 There are debts owing on the Hamlyn Terrace property in the sum of $18,475, leaving an estate of $629,710.

4 The costs in the proceedings are substantial, in part due to changes in solicitors and in part due to additional work relating to the administration of the estate. They appear to be, on the plaintiff's part, $70,000; on the defendants part $80,000, a total of $150,000. This would leave a net estate of $479,710.

5 There is also a jointly held property at Ferndale Close, Wentworthville which was the deceased’s former matrimonial home. It passed by survivorship to his widow, the defendant. It was subject to a mortgage of $85,000 which the defendant has since paid out from the moneys to which I am about to refer.

6 The deceased had superannuation and payments were made as follows:

(a) $99,148.40 to his widow, the defendant
(b) $99,148.40 to his child, the plaintiff.
(c) $113,822.12 to his child Sarah.
(d) $113,822.12 to his child Stephanie.

Distribution of the deceased’s estate

7 The deceased died intestate and accordingly his actual estate after payment of costs would pass as follows under section 61B(3) of the Probate and Administration Act 1898.

(a) to the defendant widow $200,000 plus one-half of the remaining $279,710, ie $139,855. A total of $339,855.
(b) to the plaintiff $46,618.
(c) to Sarah $46,618
(d) to Stephanie $46,618

Family history

8 The deceased John Barry was born in 1954, as was his first partner Ruth Wright. In 1985 they formed a relationship and they were engaged in 1986. The plaintiff, Catherine, their daughter, was born in August 1988 and they separated three to four months later and they never married.

9 Helen Gibbeson, who was born in 1959, met John Barry in 1990 and they commenced cohabitation. They married in 1990 and had two children, Sarah, born in the March 1997, and Stephanie, born in August 1998. They separated in January 2007.

10 The defendant commenced proceedings in the Family Court in February 2003. On 22 February 2006 the deceased died. In October 2006 the defendant discontinued the Family Court proceedings. Between October 2006 and September 2007 there were payments of the superannuation funds.

11 These proceedings were commenced on 21 December 2007 out of time.

12 In August 2008 the defendant, Helen, was again hospitalised and Sarah and Stephanie commenced living with Helen's sister, initially Margaret and then Joan. Eventually orders were made as to their parenting responsibilities and these now rest with Joan and the Minister.

Extension of time

13 Because the application is out of time it is necessary for the Court to consider section 16 of the Family Provision Act which allows an application notwithstanding that it is out of time. There are a number of cases which refer to the principles in an application for extension of time. In Re Guskett (deceased) [1947] VLR 212; [1947] ALR 263 the Court said:

“It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He has to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the Court that the circumstances are such as to make it unjust for him to be penalised for being out off time. As moreover he is seeking an indulgence he should apply promptly for an extension of time."

14 His Honour Young J in several cases has dealt with the principles governing applications to extend time under this Act. In Massie v Laundy (Supreme Court of New South Wales, 7 February 1986, unreported) he indicated that when looking at ‘sufficient cause’ under section 16 (3) of the Act the factors which one looks at include the following:

(a) is the reason for making a late claim sufficient?
(b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended?
(c) Has there been any unconscionable conduct on either side which would enter into the equation?

15 Apparently he also accepts a view which was expressed by his Honour Needham J in Fancett v Ware (Supreme Court of New South Wales, 3 June 1986, unreported) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (Supreme Court of New South Wales, 31 March 1988, unreported) Powell JA when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (Supreme Court of New South Wales, 8 September 1989, unreported).

16 In De Winter v Johnstone, a decision of the Court of Appeal on 23 August 1995 his Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23:

“In such a case, so it seems to me, no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief."

17 His Honour Sheller J considered that it was only necessary to show that the application was not bound to fail. His Honour Cole J seems to have adopted the parties’ approach of looking at the strength of the plaintiff's case.

18 I turn to the question of any explanation for the delay. In February 2006 the plaintiff’s mother saw Mr Ken Hubert, a partner at Capon & Hubert, solicitors in Canberra, and the plaintiff was advised she might have had a claim. There was discussion in relation to an application for Letters of Administration and advice was given about opposing that. There was then correspondence and some advice to the plaintiff that her father had not left a will. There was further correspondence with the solicitors asking for information on the estate and the plaintiff prepared statements for the purpose of making a claim, which she thought was underway.

19 There was further correspondence seeking that there be no distribution. In July Mr Hubert suggested meeting a barrister which the plaintiff sought and asked him for a meeting. At that time she asked Mr Hubert as to whether they had lodged a claim and according to her he said that it had been taken care of.

20 Disputes arose as to the advice and the costs involved with Mr Hubert and in November that relationship was terminated. Turner Freeman was consulted in February 2007 and a conference was held in that month and in April.

21 The matter was passed from the initial person, Mr Stubbs, to Mr Chaney. There was correspondence and once again the plaintiff says she was under the impression that the solicitors were working. Eventually they declined to act, initially in July, and finally in October when she understood they were no longer acting for her. She then in November saw her present solicitor and found out that her claim had not been filed. She then had a claim prepared promptly.

22 I am satisfied that there has been adequate explanation for the delay. There does not appear to be any unconscionable conduct on the part of the beneficiaries.

23 The defendant has raised the following matters of prejudice:

(a) After the death of the deceased the defendant discharged the registered mortgage on the property, which was a joint debt of her and the deceased. The total amount paid to discharge the mortgage was approximately $85,000 and the moneys were paid from superannuation moneys received by the defendant. The defendant has discharged the mortgage from available funds in anticipation of the estate being distributed under section 61B of the Probate and Administration Act prior to any claim being filed. Apart from her entitlement under the estate, the defendant now has minimal savings from which to meet living expenses and her income is modest.

(b) The defendant discontinued proceedings which had been commenced in the Family Court, such proceedings not otherwise abating on the death of the party.

24 As to the first matter, this can be taken into account on the adjustment process and it is probably better to do it in this matter rather than leaving the defendant to an action for contributions from her co-mortgagee, which is the estate, which may involve her in a once only accounting exercise which would be costly and once again deplete the estate's resources for the benefit of the legal practitioners.

25 As to the second matter, the defendant made a decision eight months after the death of the deceased and this was before the expiry of the time for making a claim under the Family Provision Act 1982. She thus took the risk of such a claim being made.

26 The other matter is that there is no evidence as to why she discontinued the Family Court proceedings. Also, there is no evidence of what she would have received in the Family Court proceedings. It may have been the house or the house and some cash component.

27 One cannot forecast that result from the length of the marriage as contributions play an important part and those contributions are not in the evidence before me. I am not satisfied that there is any relevant prejudice and I will extend the time to commence the proceedings.

Eligibility

28 The plaintiff is an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse [1994] HCA 40, (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 [1938] AC at 476. 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 (1951) 82 CLR 645 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 plaintiff’s situation in life

29 The plaintiff is 21 years of age, single with no child dependants. She lives with her mother in rented premises in Ainslie in the Australian Capital Territory. Her assets consist of a current account containing $812 and a savings account with a total of $53,000. She has a HECS a debt of $2,000 which, of course, is presently not payable. She is jointly indebted with her mother for a debt of $18,476 which was incurred in the purchase of some furniture.

30 The savings she has come from the deceased's superannuation payout. She paid from that an amount of about $39,410 for costs. As a result, if she is successful in her claim in these proceedings and the usual order for costs is made, she is likely to recover about $30,000 of those costs. On this basis the present assets with the amount she is entitled to in the estate is in the order of $129,618 33.

31 Apart from this promising start to her life at the age of 21, she unfortunately suffers from a number of difficulties. She was separated from her father three months after her birth. She had little contact with him thereafter. Certainly it was not her fault that there was not more contact.

32 She suffers from dyslexia and as a result has suffered at school. The report in 2000 showed her difficulties had included low self-esteem, fear of failure and anxiety. She was also sexually assaulted at four years of age by a stepbrother and has had counselling off and on over the years in regard to this trauma. She has also had inappropriate advances made to her by a teacher when she was 16 years of age.

33 Despite counselling, she has this year suffered from depression and has had to reduce her workload at university. A major problem, however, is her mother, with whom she has entered a well-established co-dependency relationship. Her mother, aged 53 years, suffers from back problems following an operation to relieve compression of the S-1 nerve. She is now out of a walking frame and a wheelchair and walks with a stick. She has difficulty getting up and down from stairs and can only drive with painkillers.

34 The plaintiff's mother also suffers from major depression, the effect of which is so debilitating that she may spend a week in bed at a time. She has been prevented from completing her degree as an infants’ teacher because of her depression. She has twice caused fires in the kitchen in respect of which Catherine has saved the day.

35 Catherine has had to on many occasions help her mother with bathing, washing, toileting and personal hygiene. Catherine deals with all these the best she can without complaint or thought of doing otherwise.

36 The co-dependency is exacerbated by the financial arrangements as Catherine receives a carer’s pension for looking after her mother. Their combined social services income is $755.65 per week and 25per cent of that goes in rent. The rest of their expenses are said to total $810 per week. This is a total of $998 per week. Plainly Catherine has used some of her capital to make ends meet as they cannot make ends meet on their present amount.

37 Since leaving school Catherine has been struggling with a four-year Diploma in Animal Technology at the Canberra Institute of Technology. She started in 2007 and it is a two-year full-time course or a four-year part time course. So far she has done 10 out of 30 units so it will be some time before she completes.

38 She seems to be doing it in order to qualify for Mature Entry Admission to the University. She says when she achieves that goal she wanted to do Marine Biology at the University of Western Australia. That is a six-year full time course.

39 There is no evidence before the Court of the availability of entry to this unique course but if she did gain admission Catherine would not be likely to complete her studies until she was 31 years of age. Given her dyslexia, it may be an ambitious project for her, particularly as she wishes to move her mother to Western Australia so she can support her there. Absent any more evidence about Catherine's abilities, and the availability of the course to her, it seems likely she will have to work as a veterinary assistant once her present course, which befits that occupation, is complete. However, the prospect of some tertiary education should not be completely dismissed.

40 It is necessary for the Court to consider the situation in life of others having a claim on the bounty of the deceased.

The defendant Helen Gibbeson

41 The defendant is 49 years of age, single, and at the moment has no dependants living with her. She has her home in the Australian Capital Territory worth $450,000 which is now unencumbered. She has a car worth $6,000, superannuation of $14,000 and some personal effects. She still has a personal loan of $40,000. She works reduced hours as a psychologist and last year had an income of $16,319. The reduced income was because of a number of illnesses from which the defendant has suffered.

42 In August and September of 2007, the defendant was hospitalised for a period of two and a half weeks. She was severely depressed at the time and admitted herself to hospital upon her doctor's recommendation. She was in the Cumberland Mental Health Unit as a voluntary patient on that occasion.

43 On 22 August 2008, she was hospitalised again for about two half weeks, this being immediately upon the death of her mother. She was severely depressed at the time and admitted herself to a hospital upon the recommendation of her doctor. Once again she was in the Cumberland Mental Health Unit as a voluntary patient.

44 She asserts that the stress, anxiety and depression that she felt both in relation to John’s death and the impact of that upon the children had caused these problems.

45 Her psychiatrist has had this to say of her present condition:

“I made a diagnosis of major depressive order and associated pathological gambling (the latter had resolved at the time of testing). Psychological treatment has consisted of behavioural activation, gambling relapse prevention, problem solving, improving self-organisation to prepare for the return of her daughters and reducing her use of alcohol.
Psychological testing on 19.03.09 suggested a mild level of depression and normal levels of anxiety and stress (on the DASS).
The Milton Clinical Multiaxial Inventory (MCMI-III) showed significant elevations on anxiety (BR=83), Alcohol Dependence (BR-84) and antisocial personality (BR=81), the latter reflecting family problems, previous gambling and alcohol problems.
Ms Gibbeson reportedly ceased gambling on 21.08.08 and has not resumed. She began taking Luvox in March 2008. She tended to deny dependency on alcohol initially but more recently has recognized that she had alcohol dependence, though she has not limited her intake to occasions when she goes out.

Ms Gibbeson is employed only three days per week and reportedly just makes ends meet. Ms Gibbeson is unlikely to be able to work more than three days per week for the foreseeable future because the additional stress might exacerbate her depression at a time when she is working through a loss and grief and reducing her reliance on alcohol. Additional days in her current position are not available and working in another unfamiliar position for-time would cause considerable additional stress.
There is a strong family history of alcoholism (a sister and brother) and of depression (a brother with major depression). Ms Gibbeson's risk of resuming gambling is low at present. We have discussed ways of securing her financial assets to eliminate any further gambling risk (e.g. having her brother as a signatory).
Ms Gibbeson’s prognosis is guarded. On the positive side, she reports a strong attachment to her daughters and has accepted important treatment goals. She has structured her day, reduced the use of alcohol and presents as no more than mildly depressed at present. Ms Gibbeson will require some further psychological intervention to help her work towards meaningful life goals such as preparing herself for the return of her daughters."

46 As can be seen from the report, the defendant no longer has the care of her two daughters, Sarah, aged 12, and Stephanie, aged 11. They presently reside with her sister Joan who has, with the Minister, the parental responsibility for the children until they turn 18 years of age. The plaintiff hopes to have them returned to her but there is no material before me to justify any present finding that that will happen.

47 Joan is 55 years of age and has the assistance of another sister, Patricia, in looking after the children. She moved into a larger rented home in order to look after the girls. Their expenses are $379 per week for Sarah and $327 per week for Stephanie. This does not include household expenses and rent. Each child presently has the insurance funds I have earlier referred to which are held by the New South Wales Trustee and Guardian. They have decreased to some extent in value because of the recent global financial crisis.

48 Sarah is apparently progressing at school and is in good health. Stephanie has been diagnosed with ADHD and is being treated with Ritalin. She needs ongoing treatment and has some urinary incontinence.

49 Plainly both children have been adversely affected by the death of their father and they are confused about the present situation of their mother who they miss greatly.

Discussion

50 The plaintiff did not see her father after the age of three months. Section 7 of the Family Provision Act provides that if a court is satisfied that a person is eligible person,

“it may order that such provision be made out of the state 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 the life of the eligible person."

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

“ This conclusion directly raises the question of whether the word ‘ought’ in section 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 Testators Family Maintenance and 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 section 3 of the 1916 Act and section 7 and section 9 of the present Act, the 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 paragraph (a) and paragraph (b) on the one hand and paragraph (c) and paragraph (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 spoke of in section 3 of the 1916 Act and section 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 has 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 P Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 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 (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 and that was unwarranted and inconsistent with the language of the legislative scheme.
It seems to me that the introduction into section 7 of the present Act of the word ‘ought’ in replacement of the words from section 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 paragraph (c) in paragraph (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 the application by eligible persons within paragraph (a) and paragraph (b) although it is unnecessary to decide that in this case."

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

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

“Her right arose 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)

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

55 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 family, as referred to in the earlier paragraphs of section 6 (1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear."

56 In Gorton v Parks (1989) 17 NSWLR 1 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 face or at any stage. It is a discarded categorisation.”

57 Bryson J also rationalised the decision of Pontifical Society for the Propogation 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.”

58 In Gorton v Parks, Bryson J sought to distinguish Scales’ case, stating:

“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 acknowledgement of the obligations or of the child appears to me to be an idea from a distance 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 seems to have been 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 of 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.”

59 In any event his Honour 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. …”

60 In Walker v Walker (New South Wales Supreme Court, 17 May 1996, unreported) 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:

“In Singer’s case, a widow who had been married less than one year to a sixty-eight-year-old man failed in the application under this Act in this Court, in the Court of Appeal and in the High Court. Majority of the Court said at page 200 and made at 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 do have been made. At page 209 the Judges pointed 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, reference 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 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."

61 Young J also observed:

“In Fraser’s case , Kirby P at page 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 judgement under appeal really amounted to little more than a shorthand expression for the lengthy 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 Courts reference, in the footnote to what Murphy J. said earlier (page 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 suggested an 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 page 42, ‘the point made in the judgement 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 sufficient 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 Court, 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."

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

63 In Walker v Walker (page 27) 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 a 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 a 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 a further provision for the applicant …"

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

“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 section 6 (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.”

65 This view was reinforced recently in Nicholls v Hall & Ors [2007] NSWCA 356 where the Court said:

“43. There are some statements in the cases that could be understood as meaning that, if there is nothing more than ‘bare paternity’ in factor (1), the relationship between the applicant and the deceased, then the applicant cannot succeed. In our opinion, such an understanding would be plainly wrong. Even if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors (that is, needs, size of estate and a lack of competing claims), a Court could find that child was left without adequate provision for proper maintenance.

44. Such a view is supported by what Holland J said in Kleinig v Neal (No 2) (1981) 2 NSWLR 532 at 540:

‘If it is a case of a parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned for the child's welfare.’
We should make it clear that, in this discussion of ‘bare paternity’, we are not intending to include a mere sperm donor; in terms of Holland J's statement, it is the persons who make use of the sperm rather than the sperm donor who are responsible for bringing a child into the world.
45. Our view is also supported by what Bryson J said in Gorton v Parks (1989) 17 NSWLR 1 at 9-10, to the effect that ‘the bare fact of paternity’ is ‘ very great importance in morality.’ We agree with Bright J's justification for departure from what Dixon CJ said on the matter in Pontifical Society for the Propogation of the Faith v Scales (1962) 107 CLR9 at 18-20, as conforming to change in the beliefs in the community about moral duties to children.
46. It is supported also by what Ipp JA (with whom Tobias JA and Basten JA agreed) said in Palmer v Dolman [2005] NSWCA at [112], to the effect that where an applicant is a child, proof that the applicant is a person in need will often be sufficient to justify an order.

47. We accept there is a suggestion to the contrary in Hughes v Hughes (NSWCA 6 June 1989) where Meagher JA (with whom Hope JA and Samuels JA concurred) said this:
‘The 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 early trips and in her professed; and continued willingness to be of whatever assistance to her father she could be.’
48. We do not understand an applicant to have a ‘right’ in any clear sense, in any event. It is only if an applicant satisfies the Court that he or she has been left without adequate provision for proper maintenance, and satisfies the Court that provision ought to be made, that it then can be said, in a loose sense, that the applicant has a right to an order. However, the right must depend, not merely on matters concerning the relationship between an applicant and the deceased, but on matters concerning the other three elements that we have referred to, namely, the applicant's needs, the nature and extent of the deceased's estate, and other legitimate claims. We do not think the passage from Hughes v Hughes should be read as meaning that entitlement can never be established if the only factor that appears in the relationship aspect of the claim is the bare fact of parenthood."

66 I am satisfied that it was not due to the plaintiffs fault that she lost contact with her father and had little contact at all with him. In any event, she was only 18 years of age when her father died.

67 One of the important questions is whether the plaintiff has been left without adequate and proper provision for her maintenance, education and advancement in life. It is only if this has occurred that the Court is empowered to change the provision which applied on intestacy and make some other provision for those who apply to the Court.

68 Catherine has set out in her evidence what she would require. The first amount which she seeks is a provision for future psychological counselling. This, she suggests, is a needed every two to three weeks at $200 per occasion. The counselling has not been happening very frequently recently, but it is clear she does need some counselling. It is unlikely that she would need it for life because if it cannot help after some years it may be that some other treatment is more appropriate. For instance five years counselling at a multiplier of 242.6 would need a sum of $16,346. For ten years with a multiplier of 451.8 the sum provided would be $30,442. In ordinary circumstances a sum such as the latter amount, which would also give some flexibility for treatment to get Catherine on the road to recovery after these traumas are completed, would help.

69 Catherine needs dental care which has a minimum cost of about $20,000 but a maximum cost of $33,075. There is no way of knowing which amount is necessary at this stage and so the maximum amount would normally be appropriate.

70 She would like a motorcar and some driving lessons to learn to drive, which would be appropriate and may help with the self-esteem and her need to attend university. A sum of $20,879 would be appropriate.

71 Other items included the cost of a computer at $7,000; some podiatry aids at a cost of $1,000. She needs $9,235 to repay her share of the loan for furniture. Her HECS debt and any future HECS debt would not be payable until she becomes a person who earns a reasonable wage in the workforce and can afford the repayments. Accordingly, such a provision is not necessary.

72 She wishes a sum also for looking after her mother while she does a six-year course in the Western Australia. As I have said, I think that is too ambitious and the evidence does not establish that need. However, I do see some need for provision perhaps of a sum of $30,000 to enable her to set herself up either in employment or in some level of tertiary care to provide something for her mother. It is to be remembered she has no legal obligation to look after her mother. It is her mother's problem and she has her own sources of help.

73 The reasonableness of all these claims has to be assessed in the light of other competing claims. What she seeks is not the full amount of this, only a legacy of $120,000, in addition to the amounts she has already received and will receive.

74 This approach recognizes that there are other competing claims on the bounty of the deceased by his widow and his other two children. Apart from her medical difficulties the widow has very little income at the moment and she has already discharged the estate's liability of $45,000. She in fact has less disposable income than the plaintiff and her mother. How she survives on it is beyond belief. Although she has discharged her estate liability for the mortgage, she has debts of $40,000. She did in fact live with the deceased for a period of 13 years and she received no property settlement from him, apart from the house which she took by survivorship.

75 The two children, Stephanie and Sarah, are in a special situation. There is no suggestion that Joan will be able to provide for them in the way that the plaintiff asks to be provided by this Court from her father's estate. It is thus important that their trustee have sufficient funds to provide for their future education including once they turn 18 years of age for any possible tertiary education. This may mean their funds would have to be increased. Even if they return to their mother it would be wise for their funds to be held separately for their future benefit.

76 I think, having regard to the situation of all the children, their provision ought to be increased slightly at the expense of the widow.

77 The orders I make as follows:

1. That in lieu of the provisions applicable on the intestacy of the deceased, and in lieu of the defendant's entitlement to seek recoupment from the estate of the deceased in respect of the discharge of the loan on her present house;
(a) that the defendant have a legacy from the estate of the deceased in the sum of $200,000.
(b) That the residue of the estate be held for the three children equally, and their share to be held by the New South Wales Trustee & Guardian, to be held for them until the attainment of the age of 18 years with full power to advance for their maintenance, education at advancement in life, both as to income and as to capital.
2. I order that the costs of the plaintiff on the ordinary basis and the costs of the defendant on an indemnity basis be paid or retained out of the estate of the deceased before determining the residue of the estate.
3. I order the exhibits be returned.

******************