Dobson v Dobson

[2012] NZHC 984

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2011-441-000555 [2012] NZHC 984

UNDER  Section 15 Family Protection Act 1955

BETWEEN  JOHN TREVOR DOBSON Appellant

ANDPAUL GRAEME DOBSON AND MARTIN ROGER DOOLE AS EXECUTORS OF THE ESTATE OF IVAN TREVOR DOBSON

Respondents

Hearing:         8 February 2012

Counsel:         N T Gray for the Appellant

H R Grayson for the Respondent

Judgment:      10 May 2012

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 10 May 2012 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:           Sainsbury Logan & Williams, PO Box 41, Napier

Gresson Grayson, PO Box 1045, Hastings

DOBSON V DOBSON HC NAP CIV-2011-441-000555 [10 May 2012]

Introduction

[1]      John Dobson brings this appeal under s 15 of the Family Protection Act 1955 (“FPA”) against a decision of Judge Callinicos in the Family Court declining to grant him further provision from the estate of his father, Ivan Dobson.  In doing so, he also sought leave to adduce further evidence under r 20.16 of the High Court Rules.  The evidence in question comprises medical writing outlining the effects of Asperger’s Syndrome, with which John Dobson has only quite recently been diagnosed.  Some, more limited, evidence about the manifestations of Asperger’s had also been put before the Family Court.

[2]      John Dobson has lived in Australia since 1986.  He is now in his mid fifties. He has no children.   His relationship with both his father (Ivan) and his mother (Evelyn) has always been uneasy and, since 1986, he rarely saw them.  For whatever reason, he did not attend his father’s funeral.  John is a sickness beneficiary suffering from an array of medical conditions, including, as I have said, Asperger’s.

[3]      Paul Dobson (John Dobson’s brother) and his wife and children live in New Zealand and had a much closer relationship with Ivan and Evelyn.  Paul Dobson and his family were very involved in caring for his parents in their declining years and saw them almost every day.

[4]      Ivan Dobson died in August 2009.  His wife, Evelyn, had died four months earlier.  His modest net estate was valued at a little over $400,000.  Under his last will, he left:

(a)       $50,000 each to Paul Dobson’s four children;

(b)      two-thirds of the residue to the Paul Dobson Family Trust; and

(c)       one-third of the residue to John Dobson.

[5]      In the Family Court, John Dobson argued that the terms of his father’s will

constituted a breach of moral duty and that the provision made for him in the will did

not adequately meet his need for proper maintenance and support in terms of s 4 of the FPA.  He contended that appropriate recognition of these matters would require his inheritance to be increased to $200,000, with consequential adjustments being made to the bequests made to the four grandchildren.

The Family Court Decision

[6]      Judge Callinicos’ judgment begins by noting that there was a high degree of factual dispute between the parties.  He recorded (at [4]) that counsel for both parties confirmed, however, that examination of witnesses was not sought and accordingly that he was left to deal with the matter in the usual way; on the basis of the affidavits filed and counsel’s submissions.

[7]      After thoroughly traversing the decided cases relating to s 4 of the FPA and moral duty, and the evidence before him, Judge Callinicos declined Mr Dobson’s application on the grounds that:

(a)      Mr Dobson’s earning capacity was greater than that which he had stated.  The learned Judge’s assessment in this respect was in part predicated  on  both  the  unfavourable  view  he  had  formed  of Mr Dobson’s credibility and also the fact that his evidence did not address or contradict  a number of critical matters that had been

raised by the executors; 1

(b)Mr Dobson’s parents had given him $50,000 before their deaths in order to help him repay debts and he had received more money from his mother’s estate following her death;2

(c)      The nature of the relationship between Mr Dobson and his parents “was very much a one-way street in his favour”.3   The Judge’s view was that Mr Dobson had treated his parents very poorly, despite the

warmth and love they displayed towards him;

1 At [45]-[57].

2 At [58]-[62].

3 At [66].

(d)The degree of estrangement between Mr Dobson and his parents was a result of his long-standing abusive behaviour; and

(e)       Mr Dobson was not an unsupported member of the family.4

[8]      There can be little doubt that in forming a dim view of Mr Dobson and his relationship  with  his  parents,  Judge  Callinicos  was  aware  of  the  Asperger’s diagnosis.  For example he said:

[70]     I have accepted the evidence of Paul Dobson regarding the poor quality of the applicant’s treatment of the Testator and his wife and that such treatment was not confined to a small pocket of time.  It was a fundamental characteristic of the way in which the applicant treated his parents.  There have been examples of his abusive correspondences provided in evidence. He authored many abusive letters to his parents and brother.  In one written to the Testator in 2007 he declared his father to be “an insensitive fool” and told him “So do what Paul has done, fuck off out of my life”.  Despite this invitation, his parents continued to respond in a gracious and generous manner, taking into account the applicant’s mode of behaviour whether it is founded in Asperger’s Syndrome or some other cause.

[71]      While the applicant has sought to excuse the tenor of his writings, for instance by saying that his comments were in response to alleged derogatory remarks by his father or because of his Asperger’s, I reject the applicant’s statements as a mere minimisation of his abusive behaviour.  His mode of correspondence with them was abusive.  They were a couple who had  given  him  much  support  throughout  his  entire  life  despite  the unfortunate mannerisms and behaviours deriving from his psychological composition.  Nothing excused the manner in which he treated his parents, especially in their last years.

(Emphasis added)

[9]      The  adverse  views  formed  by  the  learned  Family  Court  Judge  about Mr Dobson unsurprisingly informed his ultimate conclusions.  Notably, towards the end of the judgment he said:

[86]     Appraising  all  the  evidence  before  me  there  is  a  disparity  in treatment of the beneficiaries, but such disparity does not reflect any form of unfairness.   Indeed, such are the circumstances of the case before me that this is one of the rare cases where the Testator would have been justified in providing to the applicant a significantly lower interest in the estate than that which the applicant has received.  Although the respondent to the application has not actively advanced a case of “disentitling conduct”, in assessing the overall issue of whether there has been a breach of moral duty, I  cannot  ignore  the  manner  in  which  the  applicant  interacted  with  the

4 At [76]-[83].

Testator and the applicant’s mother.  As indicated in authorities such as Re Green and Croswell there is are cases that fall between disentitling conduct and serious estrangement.   The case before me is an example of such a situation.

(emphasis added)

[10]     And then he said:

[88]     Having regard to all the circumstances the deceased, Ivan Dobson, acted as a most generous wise and just Testator.  The award to the applicant of one-third of the residue of the estate was a most generous act of kindness by the Testator to his son in the circumstances.

[89]     As indicated from my factual findings, the applicant has failed by some measure to establish any financial need and any need for support in the wider sense of that term.   The Testator was entitled to have regard to the effect  that  the  applicant  had  received  an  advance  on  his  inheritance  of

$50,000.00 and had become entitled to receive the inheritance from the

Testator’s wife’s estate, in the vicinity of $70,000.00.

[90]      The applicant has therefore failed to establish the onus reposed upon him that there has been any breach of moral duty.

Grounds of Appeal

[11]     The following grounds of appeal were advanced:

(a)      The Judge was wrong to find that there had been no breach of the moral duty owed by Ivan Dobson to John Dobson and, more specifically -

(i)The Judge’s conclusion that Ivan Dobson had made adequate provision for John Dobson’s proper maintenance and support was based on assumptions and/or inferences that were inconsistent with and/or not supported by the evidence;

(ii)The Judge gave no or insufficient consideration and/or weight to Mr Dobson’s Asperger’s diagnosis and the effect that condition  had  on  his  decisions,  behaviour  and  relationship

with his father. 5

5 The notice of appeal is a little less specific in its terms. The grounds recorded here were those advanced at the hearing before me.

[12]     Mr Gray for Mr Dobson submitted that the correct approach to appeals under the FPA was that recently articulated by Duffy J in Re Johnstone where she said:6

The approach for a Court hearing an appeal against a decision on a Family Protection Act claim is set out in Little v Angus [1981]1 NZLR 126 at 127. An appellate court will not substitute its discretion for that of the Judge at first instance unless "there be made out some reasonably plain ground upon which the order should be varied." The test was recently reaffirmed in Henry v Henry [2007] NZCA 42; [2007] NZFLR 640 at [24].

[13]     However  the  extent  to  which  this  “reasonably  plain  ground”  threshold continues to be strictly correct, in light of the Supreme Court’s decision in Austin, Nichols & Co Inc v Stichting Lodestar,7  has been the subject of conflicting decisions in this Court.8    In particular, some have held that the threshold for intervention is now that set out in Austin Nichols at [16]:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the  conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[14]     Because Judge Callinicos formed the view that there had been no breach of moral duty by Ivan Dobson, no issue about the exercise of his discretion arose. Rather, the prior issue (i.e. whether there had been a breach of duty) involved a finding of fact and degree.  This, together with the fact that the learned Family Court Judge determined the case on the basis of affidavit evidence, suggests that less deference to the Family Court is perhaps warranted than in other matters where the

Court’s specialist functions are more obviously engaged.9    I therefore consider that

the Austin Nichols approach is to be preferred in this instance.

6 Re Johnstone HC Whangarei CIV-2010-488-108, 15 June 2011 at [18].

7 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 at [16].

8 Burnage v Gleeson HC Whangarei CIV-2010-488-151, 27 August 2010; O’Connor v Denee HC Rotorua CIV-2008-463-96, 22 December 2008.

9 O’Connor v Denee HC Rotorua CIV-2008-463-96 22 December 2008 at [39] and [40].

[15]     Section 4(1) of the FPA states:

If any person (referred to in this Act as the “deceased”) dies, whether testate or intestate, and in terms of his or her will or as a result of his or her intestacy adequate provision is not available from his or her estate for the proper maintenance and support of the persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion on application so made, order that any provision the Court thinks fit be made out of the deceased's estate for all or any of those persons.

[16]     Section 5(1) provides that

The Court ... may refuse to make such an order in favour of any person whose character or conduct is or has been such as in the opinion of the Court to disentitle him to the benefit of such an order.

[17]     I record at this point that, notwithstanding the existence of behaviour by John Dobson that might be “disentitling” in terms of s 5(1), the respondents did not seek specifically to rely on that provision either in the Family Court or on appeal.  In light, no doubt, of Mr Dobson’s Asperger’s diagnosis they simply asked the Court to recognise the reality of the relationship between Mr Dobson and his father in the

context of an assessment of moral duty.10

[18]     As  I have  said,  the relevant  s  4  case law  was  thoroughly canvassed  by Judge Callinicos.   No issue was taken with his analysis and I do not propose to reinvent it here.  Rather, I refer (as did the learned Judge) to the useful summary of the key principles applicable in a s 4 case that was set out in Vincent v Lewis by

Randerson J:

10 At [85] of Vincent v Lewis (2006) 25 FRNZ 714; [2006] NZFLR 812 (HC) Randerson J said:

... In most cases, including the present, it will be sufficient if the conduct of the plaintiff is taken into account when assessing the extent of moral duty and, in particular, the impact of any such conduct on the relationship between the plaintiff and her mother.

(a)      The test is whether, objectively considered, there has been a breach of moral duty by the testator judged by the standards of a wise and just testator.

(b)Moral duty is a composite expression which is not restricted to mere financial need but includes moral and ethical considerations. Estrangement will decrease the testator’s moral duty.

(c)      Whether there has been such a breach is to be assessed in all the circumstances of the case including changing social attitudes.

(d)      The size of the estate and any other moral claims on the deceased’s

bounty are relevant considerations.

(e)      It is not sufficient merely to show unfairness. It must be shown in a broad sense that the applicant has need of maintenance and support.

(f)      Mere disparity in the treatment of beneficiaries is not sufficient to establish a claim.

(g)If a breach of moral duty is established, it is not for the Court to be generous with the testator’s property beyond ordering such provision as is sufficient to repair the breach.

(h)      The Court’s power does not extend to rewriting a will because of a

perception that it is unfair.

(i)Although  the  relationship  of  parent  and  child  is  important  and carries with it a moral obligation reflected in the Family Protection Act,   it   is   nevertheless   an   obligation   largely   defined   by  the relationship which actually exists between parent and child during

their joint lives.11

11 Vincent v Lewis at [81].

Discussion

[19]     As I have indicated above, the present appeal was advanced essentially on the grounds that there were two errors of factual approach made by the learned Family Court Judge.

[20]     Because,  for  the  reasons  I  have  given,  I  differ  from  Mr  Gray  on  the appropriate appellate approach in cases such as this, it seems to me to be necessary to review the evidence before the Family Court in its entirety and to form my own view on the factual and legal merits of Mr Dobson’s position under s 4.  That said, however, in doing so I necessarily have focussed on the two matters specifically raised in the appeal, namely:

(a)       the evidence about John Dobson’s circumstances and in particular the conclusions drawn by the Judge about his financial need and his ability to work in relation to the s 4 inquiry; and

(b)the role (if any) that Mr Dobson’s Asperger’s diagnosis should play in   reaching   a   conclusion   about   his   responsibility   for   the estrangement that evidently existed between him and his father and (consequently) the scope of the moral duty owed.  Although in an ordinary  case  the  extent  of  the  moral  obligation  owed  by  Ivan Dobson  to  his  son  would  largely be  defined  by the  relationship which actually existed between them, the question becomes whether proper regard for John’s medical condition requires that the poor quality of that relationship (and his responsibility for it) be given rather less weight than it otherwise would.

[21]     As regards the first issue, my own assessment of the factual position does not differ from that of Judge Callinicos.  For that reason I do not set out my analysis in great detail.   By way of summary, however, after reviewing carefully the relevant evidence I consider that:

(a)      While Mr Dobson has numerous medical needs, the cost of meeting the most significant of these have largely been met by the Australian government;

(b)Similarly,  the  cost  of  a  full-time  caregiver  (in  the  form  of Mr Dobson’s  former  partner,  Lesley Angus)  is  also  met  by  the Australian state;

(c)      There was considerable evidence that Mr Dobson continues to be involved in a fairly substantial way with the business Ozpeopletrace.12 Mr Dobson’s explanation of why the Ozpeopletrace website continues to refer to him as the “Manager” (when, according to Mr Dobson, he is not) is, in my judgment, implausible.

(d)While Mr Dobson says that he has been advised by his medical advisers not to work, there is also some suggestion in his evidence that the restrictions on his ability to earn arise as a result of his receipt of a disability pension;

(e)      Accordingly, I agree with Judge Callinicos that this implausibility, together with the other evidence that he continues to do work for that company (which can be done by computer from his own home), suggests that he has at least the capacity to continue to earn income in that respect;

(f)      Emails written by Mr Dobson to his brother and other documents appear to contradict his affidavit evidence that he has no other business interests and few or no assets.  His failure to provide further evidence explaining these inconsistencies necessarily counts against him; and

(g)      While the provision made for John Dobson under his father’s will

was less than the provision made for his brother Paul, the disparity is

12 Ozpeopletrace is essentially a private investigation business focussed on finding missing people.

not particularly great when account is also taken of the $50,000 loan (which  the  Dobsons’ lawyer  confirmed  was  regarded  by  John’s parents as an advance on his inheritance) and the money received by him from his mother’s estate (approximately $70,000).

[22]     As   far   as   the   estrangement   issue   is   concerned,   I   also   agree   with Judge Callinicos that the evidence paints a clear and fairly unattractive picture of Mr Dobson’s behaviour.   While he is plainly an intelligent man, his mode of both written and (I infer) oral communication is often blunt, hurtful and sometimes offensive.  Like Judge Callinicos, I reject Mr Dobson’s claim that his parents treated him poorly – whether as a child or as an adult - regardless of whether they were able to “accept” his (late) Asperger’s diagnosis.

[23]     Mr Dobson appears to have had little understanding of the effect the content and style of his communications has on those who received them, but this in turn is symptomatic of his almost complete lack of empathy or regard for anyone other than himself.  In my review of the evidence (which included not only Mr Dobson’s own affidavits but copies of a considerable number of emails sent by him either to his brother  or,  through  him,  to  his  parents),  I  could  not  find  one  example  of  an expression of straightforward concern for the well-being of another person.   His solipsism seems all-pervasive.

[24]     I accept that some of the qualities possessed by Mr Dobson may be consistent with his Asperger’s diagnosis.   The evidence that was sought to be introduced on Mr Dobson’s behalf suggested that some of those who suffer from the Syndrome may:

(a)       exhibit socially and emotionally inappropriate behaviour;

(b)have difficulty in understanding the thoughts and feeling of others and in showing empathy;

(c)       become intensely and suddenly angry; and

(d)      perceive things in an unusually “black and white” way.

[25]     In the circumstances of this case I am prepared to admit and have regard to that evidence.   But while some of the more obnoxious aspects of Mr Dobson’s behaviour and Asperger’s symptoms may coincide, there was no  other evidence before me (just as there was none in the Family Court) linking those two things. Rather, the Court has been asked to infer that one is causative of the other without affording the respondents any opportunity to challenge the evidence on which the evidence is based.   While I am, therefore, somewhat more prepared than Judge Callinicos was to make such a connection, the weight that I can ultimately accord to

the fresh evidence is necessarily limited.13

[26]     Moreover, certain aspects of Mr Dobson’s behaviour appear to have been deliberately provocative  and  do  not seem  to me to  be so  readily explicable by reference to Asperger’s.  To take one minor example, his brother’s account of him repeatedly asking his elderly parents for a picture of a tuatara so that he could get one tattooed on his (shaven) head seems to have been designed only to goad or inflame; his parents had a profound dislike of tattoos and Mr Dobson could easily have downloaded a picture from the internet.

[27]     I nonetheless proceed on the basis that Mr Dobson’s Asperger’s did, to some extent, affect the quality of his relationship with his parents and that his lack of insight and empathy made it difficult for him to repair matters.

Was there a breach of moral obligation?

[28]     The  question  now  becomes  whether,  in  light  of  my  assessment  of  the evidence (having particular regard to the financial need and estrangement issues) it

13 I note that in Vincent (supra) Randerson J came to a similar conclusion in similar circumstances. At

[89] he said:

I am prepared to accept the view expressed by a psychiatrist, Dr B T McIvor, in a report dated 2 June 2005 that Avionne has suffered from stress and anxiety and possibly depression from time to time. But limited weight can be given to these factors given the absence of any affidavit from Dr McIvor, the lack of any ability for opposing counsel to cross-examine, the ex post facto nature of the examination and report, and the lack of any contemporaneous corroboration of the symptoms described by Avionne.

can properly be said that the provision made for Mr Dobson in his father’s will was adequate for his proper maintenance and support.   The extent of Ivan’s moral obligation is central to that inquiry.

[29]     In my view, the evidence does not support such a conclusion, for the reasons that follow.

[30]     First, I have already indicated my agreement with Judge Callnicos’s analysis of John Dobson’s financial need and his earning capacity.  When the provision made for John in his father’s will is viewed in that context, and in the context of the monies he had already received from his parents in 2008 ($50,000) and following his mother’s death ($73,000) it cannot fairly be said that it was inadequate.

[31]     Secondly,  the  reality  remains  that  there  was  an  estrangement  between John Dobson and his parents.   The relationship was one which caused his parents considerable emotional pain and stress throughout their lives and, finally, at a time when they were both very unwell.  The evidence of Mr Doole, the Dobsons’ solicitor was that as a result of John’s behaviour in 2007 his parents had expressed a wish to cut him out of their wills altogether.  But in my view it is significant that they did not in fact do so.

[32]     Rather, the evidence suggests that the Dobsons made a conscious effort to continue to meet their moral obligation to John both through making a $50,000 inter vivos loan to him (at his request) in 2008 and in terms of their final wills.  As I have said, he has received a further $73,000 from his mother’s estate and, now, is entitled to a third of his father’s residuary estate.  The value of that residue is approximately

$68,000, to which must be added the $50,000 loan that has been treated as an advance on his inheritance.   Viewed globally in this way, the provision made for John is not markedly less than that made for his brother Paul, who was very close to his parents and cared for them throughout their final years.

[33]     Accordingly,   it   is   my  view   that   these  testamentary  and   inter  vivos dispositions evidence a conscious resolution by John Dobson’s parents to continue appropriately to address his need for proper support.   That conclusion (that the

Dobsons were conscious of the importance of such support and (in that context) of recognising John’s place in the family) is further supported by the terms of a card that they wrote to him in early 2008.  In that card (which also made an impression on Judge Callinicos) they said:

John, we know that you love us in your own way just as we both have always loved you in our way.  Whilst we would love to see you, neither of us is physically, mentally or emotionally able to take any form of stress or upset as they take a heavy toll on our already severely weakened health.  Taking all  this  into  account,  we  feel  that  sadly  the  status  quo  should  remain, although you are a 56 year old man and we leave it up to you to make your own decision based upon your understanding of the situation.  We wish you all the best for 2008. You are never far from our thoughts.

All our love, Mum and Dad.

[34]     Accordingly,  even  if  the  Dobsons  did  not  (as  John  alleges)  accept  or understand  that Asperger’s  may  have  been  the  root  cause  of  the  estrangement between them, it is difficult to see what difference that makes in s 4 terms.  That is because, despite the estrangement, John’s parents were acutely aware of his place in the family and did their best to maintain it and to support him, albeit in difficult circumstances.   This was also reflected in what I consider (in context) to be the adequate provision made for John’s proper maintenance and support in his father’s will. There is no basis upon which the Court can or should intervene.

Result

[35]     For the reasons  I have given my assessment  of the relevant evidence is largely the same as that of Judge Callinicos.   The additional evidence about the behavioural effects of Asperger’s Syndome does not cause me to depart from the conclusions he reached.  There has been no breach of moral duty here.

[36]     The appeal is dismissed. The Respondents are entitled to costs on a 2B basis.

Rebecca Ellis J