Barbanera v Barbanera & Ors; Estate of the late Antonio Barbanera - [2017] NSWSC 357 - NSWSC 2016 case summary — Zoe

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Barbanera v Barbanera & Ors; Estate of the late Antonio Barbanera

[2017] NSWSC 357

Supreme Court of NSW|2016-12-13|Before: Slattery J, Mr J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-12-13

Before

Slattery J, Mr J

Source

Original judgment source is linked above.

Judgment (30 paragraphs)

[1]

Judgment

Antonio Barbanera died on 31 October 2014. Antonio's wife Maria had died in November 2009. They had both been born in the early 1930s in Catania in Sicily, migrated to Australia and were married for over 50 years.
Antonio was survived by four children, the plaintiff, the eldest, Giovanni (John), born in 1963, Nunzia Brunetti (Nancy) born in 1969, Pietro (Peter) born in 1973 and Angela Bouyioukos (Angela) born in 1966.
Angela died in April 2015 and is survived by her husband, Nick Bouyioukos and their only child, Giuliana.
Maria was the sole beneficiary under Antonio's last will dated 23 April 2008, with a gift over to three of the children, Angela, Nancy and Peter, were she to pre-decease Antonio. Maria died before Antonio, in 2009.
John was excluded from his father's will. John brings these proceedings under Succession Act, Chapter 3 for provision out of Antonio's estate.
Antonio's will appointed Peter and Nancy as his executors. The executors resist John's claim on two principal grounds: (1) he had deliberately estranged himself from his father, and indeed his mother, for most of his life, causing them both great distress; and (2) he has no need for provision out of the deceased's estate, because of his and his wife's existing personal wealth.
As the parties often referred to one another in the course of these proceedings by their first names the Court will, without intending any disrespect to the members of the family, do the same in these reasons.
Mr J. Phillips SC of counsel leading Mr R. Weaver appears for the plaintiff in the proceedings. Mr K. Morrissey of counsel appears for the defendants.

[2]

The Barbanera Family - 1960 to 2014

The generation of the Barbanera family now contesting these proceedings all grew up in Sydney in the suburbs of Dulwich Hill and later in Haberfield. Antonio and Maria purchased what became the family home in Empire Street, Haberfield in November 1976. The plaintiff lived in the Haberfield house with his younger siblings from the age of 13. He moved out of the Haberfield house in 1991 when he married at the age of 29.
The plaintiff, John, gave an account of the happy life that he led with the family in Dulwich Hill and then in Haberfield. He said that he had a good relationship with both his father and his mother until certain events occurred involving his sister Nancy, which will be detailed later in these reasons.
Antonio worked at the Carlton United Brewery in Broadway. Antonio was a very industrious worker by all his surviving children's accounts. He and Maria promoted the values of hard work in all their children.
John left school after completing his School Certificate at Drummoyne Boys' High School. Antonio encouraged John to pursue a career as a motor mechanic. He followed that advice and obtained an apprenticeship and enrolled at the TAFE in Ultimo.
John was entrepreneurial. At about the age of 20 or 21 he started his own motor mechanic's business in Crystal Street, Petersham. He was able to do this, in part, because he was still living at home and Antonio and Maria were financially supporting him by saving him from domestic expenditure.
John operated his motor vehicle repair business in Crystal Street, Petersham from about 1986 until about 1997. He later purchased a smash and mechanical repair business in Campbell Rd, St Peters. He continued working in that business until 1998, when he purchased the freehold premises of the business at 24 - 26 Burrows Road. The plaintiff then relocated to 44 - 46 Burrows Road in 2004.
In January 1991, the plaintiff married Giuseppina (also referred to in these reasons from time to time by the shortened form of her name that she herself used, "Pina"). John's parents, Antonio and Maria attended his wedding as did all his siblings. To an outside observer there seemed at that stage in the family's history to be no major disputes between the children. In May 1990, just before they married, the plaintiff and Giuseppina purchased for $205,000 a house in Greenacre, where they lived for many years.
At the time of the hearing John and his wife, Pina, had two children: Elisa, 23, and Anthony, 21.
Nancy and Peter's accounts of their childhood experiences with John were quite different to John's. A comparison of their respective accounts shows there was undoubtedly a major family rift between them. There was little consensus about anything that had occurred between them: about when the rift began; about what it was over; and about its effect on the deceased. Before examining the conflicts in their evidence, an assessment of the credibility of the witnesses is needed.

[3]

Credibility of the principal witnesses

Five witnesses were called in the proceedings: the plaintiff, John, his wife Pina, the defendants Peter and Nancy, and Angela's widower, Mr Nick Bouyioukos. In addition to these witnesses, affidavit evidence was read from a number of other witnesses who were not cross-examined. Generally the Court has accepted, where relevant, the evidence of these other deponents.
Giuseppina Barbanera and Nick Bouyioukos were generally credible witnesses. The Court did not accept all of their evidence but their evidence was not distorted by animus against any party to the proceedings.
The same cannot be said for John, Peter, and Nancy. All of their evidence was profoundly distorted by their personal prejudices, born out of an unquenchable feud that Nancy and Peter had on the one side and John had on the other side, which they seemed determined to maintain and bring into the courtroom. This distorted their evidence in different ways.
John's evidence about his siblings, Nancy and Peter, cannot be trusted. He was not prepared to take any responsibility for any part of the breakdown in family relationships between himself and his siblings. As to his relationship with both his parents, he maintained that it was always good and had been right up until their deaths. To the extent that his parents had in documents expressed opinions about his behaviour that were not complimentary of him, he attributed such things to pressure placed upon his parents by Nancy and Peter. He was not entirely wrong about this. He had no apparent residual brotherly empathy for his siblings. He regarded the evidence they had given in the proceedings which was adverse to him as being deliberately untruthful.
In my view, John badly misrepresents the past, and airbrushes his own grave misconduct out of the family history. Moreover, John's sense of his own financial needs were somewhat divorced from reality. That being said, his perception of the depth of Nancy and Peter's hostility towards him was accurate.
Nancy's evidence was unusual to say the least. At one point in her testimony, Nancy turned to John in the Court room, ignoring both counsel and the Court, and delivered an obscene and vitriolic rant directly towards John. She accused him of many things, but in substance of ruining her life. Her profound revulsion for John's conduct was on plain view.
The Court intervened. Nancy was warned immediately about this outburst. She was told that were such conduct to continue it may impact upon the Court's assessment of her credibility. She at first seemed to calm down. But she was incapable of restraining herself. She launched again into another tirade directly targeting John. She eventually complied with the Court's warnings and directions. But this conduct revealed that she had a wildly hostile emotional reaction to her brother. All her evidence about him needed to be viewed with caution.
Curiously, notwithstanding the Court's caution about Nancy's evidence, the Court does accept parts of her account of her upbringing with John. Three main reasons explain this. First, her account is supported by Peter. Secondly, many of John's denials of his conduct appear to the Court to have little credibility. Thirdly, her account of John's early misconduct is the best explanation for her continuing and current bitterness and hostility towards him.
Peter also harbours powerful resentment against John. Its origin is difficult to fathom and is different from Nancy's. Peter's resentment of John is based in part in the same shared family history. Like Nancy, Peter strongly resents John's behaviour during their shared childhood as well. But it is also based on a falling out between the brothers in 2002 over their joint business dealings. Peter seemed resistant to, or suspicious of, the whole Court process.
These reasons reveal otherwise hidden family bitterness. The Court warned the parties several times during these proceedings that the findings in this case, whatever its outcome, would be unlikely to make comfortable reading for any of them or for any of their acquaintances. The Court made clear that its findings in the proceedings would be available on the Internet and that one of the advantages of a consensual resolution of the proceedings was that such public findings would not have to be made.
Despite those warnings, the proceedings did not resolve. The Court now has to determine them. The Barbanera family history recited here could have been saved from public disclosure. But there was insufficient family cooperation to prevent even that outcome.

[4]

Barbanera Home Life at Haberfield - 1976 to 1991

I accept Nancy and Peter's evidence, not John's, about the quality of the Barbanera home life at Haberfield. Nancy says, and I accept, that John's relationship with their parents was extremely turbulent and volatile and was characterised by abuse, threats and intimidation towards them. Her assessment, which I accept, was that he was not only the eldest child but was physically large and strong, intimidating and violent in manner. She says she often heard him shout out at family members, including his parents in fits of rage. He called their parents "filthy names".
She can also recall, and I accept, that one or other of her parents were sometimes pushed or shoved roughly by John, when they were attempting to shield Nancy or Peter from John's physical and violent abuse. In my view this conduct by John went on for a long time whilst he was living in the family house and became a source of great shame to his parents.
John treated his position as the firstborn male in the family as a solemn duty and entitlement. He seemed to have regarded the role as giving him authority to control the personal lives of his siblings, particularly both his sisters.
This controlling behaviour had ugly and unacceptable consequences. I accept that on one occasion in 1983 when John discovered that Angela had a boyfriend, John became enraged and punched Angela very hard in the face, causing her to fall to the kitchen floor with her face heavily bleeding. He then stepped on her and kicked her while she lay motionless on the floor. I entirely accept Nancy's evidence of this occasion that she thought the violence had reached the point that John may have killed Angela. This was an occasion of the most acute distress for both parents.
Yet again later, John tried to control the personal life of Angela. She began seeing another young man called Vince who happened to be a friend of John's and who John strongly approved of as a suitor for Angela. But when Angela decided to end the relationship with Vince, John became outraged and chased Angela with a firearm, threatening to kill her.
I accept that Antonio and Maria asked John to leave the Haberfield home several times and live elsewhere because of his behaviour. They asked John to move out in 1980 and he did. He took residence in rented accommodation in Balmain. After about 12 months Antonio and Maria agreed to allow John back. He returned to Haberfield, where he stayed until he married in 1991. He seemed to have calmed down somewhat by then.

[7]

The 12 June 2000 Will and the Statement

Antonio's 12 June 2000 will excluded John from any testamentary benefits. The will was apparently prepared by a solicitor, Mr John Fisicaro of George St, Burwood. In the 12 June 2000 will, the deceased appointed his wife Maria as his executor and gave the whole of his estate to her. But the will provided that should Maria die before him, then he appointed his niece Rosetta Lombardo as his executrix. In the event of Maria's death he gave $20,000 each to John and Giuseppina's children, Elisa and Anthony. He then gave the residue of his estate in equal shares to Angela, Nancy and Peter with a gift over to the children of any of his children who had pre-deceased him.
He made a contemporaneous statement, which was admitted into evidence in these proceedings under Succession Act, s 100. The statement is actually dated exactly two years after the will, on 12 June 2002. But it is accepted on all sides that the date is an error and that the statement's date is 12 June 2000.
The 12 June 2000 statement was as follows: "1. We are angry with Giovanni and we do not wish to leave him anything in our Wills. We have both discussed this between ourselves and we are making a conscious decision. In lieu of any gift to our son Giovanni we are making provision for his children (our grandchildren) Elisa and Anthony John leaving them each a small gift. 2. One reason that we have made no provision for our son Giovanni is that for quite some time Giovanni has shown no respect for us as his parents and has displayed contempt for us and his sisters and brother. 3. In addition Giovanni and his immediate family are not needy and have sufficient assets of their own. 4. Giovanni's disrespect and argumentative attitude in particular with his brother and sisters has been a constant source of distress to us. We are particularly outraged at Giovanni's treatment of his younger brother Pietro and his sister Nunzia over recent times. 5. We have tried to encourage him to reconcile with his brother and sisters. We have even tried reconciliation through relatives but without success. 6. Giovanni does not visit us and has not allowed his children who are our grandchildren to visit us. This has particularly hurt us. 7. Giovanni has made a conscious decision not to be close to us. 8. Giovanni has a difficult personality but that is not the reason we have left him out of our Will. Giovanni has made it quite clear by his words and actions that he does not wish to re-unite with us or his brother and sisters. We have had to put up with his idiosyncratic way of thinking over the years. Giovanni has always cut off ties with anyone who does not agree with him. He has failed to understand that love and respect of the family is an important aspect of our lives and the way we live. 9. In addition we are both elderly and suffer from health problems. We rely on our children for assistance and our other children Angela, Nunzia and Pietro have in the past and are currently continuing to assist us. We acknowledge their help and thank them for it. This is one of the primary reasons for making our decision. 10. This statement was translated into Italian for us by our solicitor John Fisicaro who is familiar with the Italian language and in particular the Sicilian dialect...."
The deceased's statement is puzzling. In its opening words it describes that Antonio was "angry with Giovanni" as explaining Antonio and Maria's conscious decision to leave John out of the will and make instead provision for Elisa and Anthony John by way of a small gift. Anger seems hardly an adequate explanation for a calm and rational decision about John's entitlement to a share of his parents' testamentary bounty.
The particular focus of the statement is John's attitude to his siblings and especially Peter and Nancy, and his failure to reconcile with Peter and Nancy. The statement does not mention Angela. There is no direct evidence, as John speculates in his evidence, that Peter and Nancy influenced the making of this statement. In my view the statement should be taken as a genuine expression of disgust on Antonio's part at the past conduct of John and the incapacity of John now to take up normal family relationship with his parents and to reconcile with his other siblings.
But the statement seems to assume that the blame for the failure to reconcile and restore closer family interaction is to be placed entirely at John's doorstep. But the evidence of subsequent events, discussed later in these reasons, shows in my view that this is not entirely accurate. Peter and Nancy were partly responsible for the lack of reconciliation and for the failure to restore family interaction. In my view they obstructed the restoration of any relations between Antonio and Maria and John. To this limited extent, in my view, the statement is mistaken.
That being said, much in the statement is true. I accept the correctness of Antonio's judgment that "Giovanni has a difficult personality". Antonio also offered the opinion with resignation, "we have had to put up with his [John's] idiosyncratic ways of thinking over the years". I also accept that the statement is correct when it says "Giovanni has always cut off ties with anyone who does not agree with him". John's evidence showed an unusual single-mindedness and inability to accept the views of others. This statement reflects a sound judgment in this respect of a father about this particular son. But what the statement misses is that in the contests within the family between John on the one hand and Peter and Nancy on the other, John's decision to "cut off ties" from time to time is partly justified by the abusive onslaught that I infer he received back, especially from Nancy, in answer to his conduct.
The June 2000 statement then moves to Maria and Antonio's health problems and their need to rely upon Angela, Nancy and Peter on a continuing basis, for which they were grateful. The Court accepts the statement is accurate in stating that John did far less than his siblings for his parents. It can also be accepted that John's at times aggressive personality and hostile treatment of his siblings was a reason he was not accommodated to assist them in helping his parents. But the statement is overly simplistic in blaming John entirely for lack of support. As Peter and Nancy's subsequent conduct shows, they bore real responsibility for deterring John from having continuing contact with his parents, as he and they aged.

[8]

The Falling Out Between John and Peter - 2002

The falling out between John and Peter in 2002 is not disputed. They both give an account of it. It was discreditable on both sides. This rupture, together with the events at Maria's funeral and later at Antonio's funeral, throws light upon Nancy and Peter's attitudes and behaviour towards John, and allows the Court to make a more realistic assessment of Nancy and Peter's conduct in relation to John, when they were privately communicating with the deceased.
A starting point for considering the 2002 rupture between John and Peter is Marilena Cardwell, a first cousin of Pina and a bridesmaid at Pina and John's wedding, who became an employee in John's business in Campbell Road, St Peters in about 1994. Ms Cardwell explains, and I accept, that the Campbell Road premises consisted of four to five factory units that John owned. Peter sub-let from John one of those units for his panel beating business. Ms Cardwell gives an account, which I accept, that Peter got along fairly well with John in this business context until the incident to which these reasons shortly refer. She says, and I accept, that Peter would often come in and see John there. Indeed, Ms Cardwell also acted in the role of Peter's bookkeeper and secretary at this time, because Peter did not have secretarial assistance. The Court's findings about what happened in this 2002 incident are in part based on Ms Cardwell's evidence.
Ms Cardwell's recollection is, and I accept, that a dispute arose between Peter and John as to which of them would purchase a block of land. Shortly after that problem arose, one weekday John forwarded a letter to Peter, which indicated to Peter that his rent in the sub-let premises would substantially increase. Ms Cardwell remembers this, partly because she faxed the letter to Peter.
John's letter was provocative and typical of his capacity for somewhat mindless aggression. But it evoked an even more aggressive response from Peter. The same day, Peter came into John's office with a crowbar; Ms Cardwell was there. She saw that Peter was holding a long piece of metal with a hook at the end. Peter came up the stairs to the reception area of John's office and was visibly agitated and walking very quickly. Peter hit the reception desk with the crowbar and then proceeded to go into John's glassed-in office. Ms Cardwell could see into John's office through the glass. She saw Peter trying to hit John with the crowbar. He was swearing at John and saying words to the effect of, "what the fuck are you doing…?". She says she did not absorb exactly what the dispute was about.
But it was clearly a frightening encounter. Some of John's employees, two mechanics Con and George, came to the rescue. They grasped Peter and pulled him and the crowbar away from John. Peter eventually left. There is no mention that the police were called.
Ms Cardwell's assessment, which I accept, was that "Peter was out of control". I also accept her assessment that for her this was "an extremely frightening day". That is why she says she has "never forgotten" it. There are varying dates about this incident. Ms Cardwell says that it was 2000 and that she left John's employ in 2002. It is probable that the incident occurred earlier in the year she left, 2002, or late in 2001.
Of course I take into account that Ms Cardwell has a continuing relationship with John and Giuseppina, and has remained in close contact with them since 2002 when she left John's employ. But her evidence coincides with the Court's assessment of John and Peter's own evidence on this issue. I generally prefer John's version of these events over Peter's.

[9]

Attempts to Patch Up Relationships - 2002 - 2003

The rift between John and his siblings was not thought by at least some of them at the time to be irretrievable. There were meetings held in 2002 and 2003 among all the Barbanera siblings and their spouses. Neither Antonio nor Maria were present at these meetings but they may have helped to orchestrate them.
Pina explained, and I accept, that late in 2002 she attended with her husband John a meeting at Angela's home in Emu Plains. Present were Nancy and her husband Antonio, Angela and her husband Nick, and Peter. She says, and I accept, that she was present throughout this meeting. The purpose of the meeting was to try and improve relationships between the siblings, especially between John and Nancy and John and Peter. Angela hosted the meeting, no doubt because she had remained closer to John than either Nancy or Peter. She was a reasonably balanced party in these intra-family disputes.
Giuseppina's recollection is, and I accept, that "everyone had a chance to say what they wanted to" in relation to the family disputes. However, her assessment was that "it became obvious that everyone was set on what they wanted to say" and that as a result she thought "there was no chance for any reconciliation". In the end she and John left this meeting without any resolution.
There was another meeting about a year later. But its intent was different. This was a meeting organised on neutral ground by a family friend, Mr Sam Cantarello. I accept Pina's account of this meeting. She says it was organised at Sam's request and that until they arrived at the meeting she and John did not know that the other siblings would even be present. At this meeting, Peter indicated that he wished to buy out "John's share" of the family home in Haberfield, as Nancy and Angela were apparently proposing to sell their share to Peter as well. Put bluntly, Peter said that he wanted to do renovations to the house and did not want John to benefit from those renovations. If that was his intent, then a meeting of this kind at that time was logical.
But all of this was shocking for John and Pina. It was still 2003. The idea of "John's share" of the Haberfield house was premature. Both Antonio and Maria were still alive. The Haberfield house was in their names. Maria was ill in hospital. John declined this invitation to treat. He forcefully expressed his view that even raising the topic of what would happen to the Haberfield house was inappropriate. He wanted to have nothing to do with it.
Pina's evidence on this subject not surprisingly shows Peter in a selfish light. And I accept her evidence as to the transactions proposed at this meeting. But part of Peter's motivation was unselfish: to renovate the house, so that Antonio and Maria would have a better environment to live in for the rest of their lives.

[10]

Contact between the Deceased and Maria and John's Family After 2002

As earlier indicated, the Court accepts Pina Barbanera as a witness of substantial truth. I accept her evidence that she and John were very close to the deceased and Maria up until about 2002 when the relationship between John and his brother, Peter broke down. I accept her evidence that up until that time, Antonio and Maria would attend John and Pina's childrens' birthday parties and visit them from time to time. I also accept her evidence that John and she would visit Antonio and Maria's house regularly, and that they would all spend special events such as Easter and Christmas together. I also accept that John and Pina participated in Peter's wedding and that Nancy, Peter, and Angela participated in John and Pina's childrens' christenings and birthdays as they were godparents to John and Pina's children.
Pina has produced photographs of many of these occasions which support her testimony. There are many photographs in evidence (Exhibit G) taken on such occasions, from the time of John and Pina's engagement and wedding in 1990 - 1991, right through until 2001 for John and Pina's son, Anthony's sixth birthday. The photographs cover every year during the period 1990 to 2001. The photographs show many occasions in which Maria and Antonio are present at John and Pina's house. The photographs tell their own story. There are multiple photographs taken on these occasions. They show Antonio and Maria relaxing, engaging with and clearly bonding well with John and Pina and John and Pina's children, Elisa and Anthony John, Antonio and Maria's grandchildren. Pina's own parents are also present in many of these photographs. The occasions cover, for example, Elisa and Anthony's christenings, Elisa and Anthony's birthdays, Giuseppina's 30th birthday, other family birthdays, family outings and picnics, some informal family meals, Peter's wedding, Elisa's first Communion, and a Gold Coast holiday.
The photos in 2000 and 2001 are of the most interest. They contrast directly with the June 2000 statement, which Antonio made at the time of his first will. Some focus on the photographic evidence from the 2000 to 2001 period is especially warranted. Leaving aside the photographs of Peter's wedding, in the 2000 to 2001 period the Court has incontrovertible photographic evidence of Antonio and Maria being present at John and Pina's house for Anthony's fifth birthday, John's birthday, and Anthony's sixth birthday in 2001. In the same period, apart from Peter's wedding, there are also photographs of occasions involving John, Pina, Maria and Antonio at Pina's parents' house, Elisa's first Communion at Wollongong and the gathering at the Gold Coast in Brisbane for John's godfather's 90th birthday. Looking at these photographs, the Court cannot accept that up until about the end of 2001 that John and Pina totally excluded Antonio and Maria from their children's lives. The evidence is inconsistent with that conclusion.
Of course the hypothesis is available that Pina and John allowed Antonio and Maria to visit their grandchildren on some special occasions but not more generally.
But that hypothesis is difficult to maintain up to 2002, especially against Pina. First, accepting that they only represent but an instant in time, the quality of relationships demonstrated within these photographs (Exhibit C) is quite good. But secondly, I accept Pina's evidence on this subject. She was cross-examined about what happened up until 2002. I accept that she did her best to maintain some relationship between her children and John's parents. She spoke convincingly of spontaneously taking the children for visits around to see Antonio and Maria. I do not accept that Pina used her and John's children as hostages in some game of denial of affection to Antonio and Maria. In my view, her evidence is less reliable for the period after 2002. But it can certainly be accepted before that date. On the other hand John was not able to speak as spontaneously as his wife of taking the children around to Antonio and Maria. That is because, unlike Pina, in my view, he was more reluctant to engage with his parents.
John puts the breach within the family as occurring over Nancy's personal relationships when she was a teenager. But this cannot be right. The photographs (Exhibit G) are inconsistent with there being an irretrievable breach between John and his parents before 2002. In my view, Antonio and Maria were prepared to forgive a great deal in their children to maintain close family relationships.
In my view, the final breach within the Barbanera family occurred in 2002 and persisted thereafter. It arose from the falling out between Peter and John over their business dealings, recounted earlier in these reasons. Their own evidence of the intensity of the rift from this time, and the absence of any photographic evidence showing John and Pina with other family members after this date, supports this conclusion.

[11]

Antonio and Maria's 2008 Wills

Both and Antonio and Maria made further wills with a solicitor, their final wills, on 23 April 2008. At the time of making these wills Maria still had another 18 months to live. An outline of Antonio's will of this date has been given earlier in these reasons. He appointed Angela, Nancy and Peter as his executors and trustees. Angela did not take out probate, because although she survived him, it was not by very long. The 23 April 2008 will then gave the whole of his estate to his wife Maria should she survive him but if he pre-deceased her, to Angela, Nancy and Peter in equal shares in tenants-in-common but with a per stirpes gift over of any share of Angela, Nancy or Peter should they pre-decease him.
Antonio and Maria again made statements at the same time of making their April 2008 wills. Their statements taken by a solicitor, were in relevantly identical terms. Antonio's statement is as follows: "1. Attached to this Statutory Declaration and marked with the letter "A" is a photocopy of my Will dated 23rd April 2008 and signed by me. 2. Prior to signing my will I took legal advice and I was advised that my eldest son, Giovanni, aged 45, was an eligible person for the purposes of the Family Provision Act 1982 New South Wales, and that upon my death he could make a claim for provision from my estate. 3. I understand that if Giovanni were to make a claim the Court would look at his needs for financial assistance at the time and also the facts and circumstances of the relationship between him and myself. 4. After giving the matter consideration I have decided to not make any provision for Giovanni in my will. 5. Factors I have taken into account in reaching this decision include: (a) My primary obligation to Maria, my wife of 46 years and who is Giovanni's mother; (b) I believe that Giovanni is in no need of financial provision from my estate as he has his own motor mechanic business and is otherwise comfortably well off; (c) Since approximately 1991, when he left the family home at 9 Empire Street, Haberfield and married, he has progressively separated himself from myself, my wife Maria and his siblings, Angela (born 1966), Nunzia (born 1969) and Pietro (born 1973); (d) While living at the family home at Haberfield, he was constantly abusive towards me, my wife and his siblings. He was often physically violent towards his siblings, beating each of them on a number of occasions. To my shame, my wife and I felt too scared and intimidated by him at the time to intervene in relation to his abusive and violent behaviour towards his siblings; (e) He has rejected my wife's and my attempts to visit him, his wife and his children (our grandchildren) at his home. (f) He has repeatedly shown me, his mother and his siblings, no respect. (g) He has rejected my approaches to reconcile him with his siblings. (h) He has refused to be part of the Barbanera family, something that is particularly hurtful for a person of Italian heritage such as me as a sense of belonging to a family is very important to us. (i) He has failed to visit me and my wife at the family home at Haberfield for many years though he and his family reside at nearby Greenacre. I feel that my wife and I have been deprived of the joy of getting to know his children (our grandchildren) and watching them grow. (j) He has rejected my approaches to him and he refuses to allow his children (our grandchildren) to have the opportunity of regular contact with me or my wife (k) Although my wife has suffered ill health for a number of years relating to a heart condition and emphysema of which Giovanni is aware, he has never demonstrated any concern for her or her health. (l) He has made no financial or other contribution to my estate. He received free board and lodging with my wife and me until he left the family home in 1991. (m) His siblings have always been close to my wife and me, have been part of the family and have provided valuable financial, emotional and practical support and assistance to me and my wife whenever needed."
I accept the accuracy in this statement of Antonio's description of John's behaviour when living in the family home before he left. It is consistent with and further supports the Court's findings on this question. But Antonio's statement that John "has rejected my wife's and my attempts to visit him, his wife and his children [our grandchildren] at his home" is not entirely correct, or at least should be construed narrowly to refer to John's conduct alone, as in my view Pina did not herself (other than perhaps under John's immediate influence) refuse to allow Antonio and Maria contact with their grandchildren. There is photographic evidence up to 2002 to the contrary.
But in my view this is a wholly correct statement of what happened after 2002, for the six years prior to this statement being made. Real weight must be attributed to the fact that it was drafted with the assistance of a solicitor. By 2002 John was not promoting any contact between his children and his parents. Although I accept Pina's evidence that from time to time she was still quietly taking Eliza and Anthony to see Antonio and Maria.
But this statement in my view suffers similar minor faults to those in the June 2000 statement. It does not acknowledge any of the part of the family dynamic that was reactively pushing John away from his parents. I accept as correct, especially after 2002, the deceased's statements that John "rejected my approaches to him". And what ultimately happened no doubt came across as John "refuses to allow his children [our grandchildren] to have the opportunity of regular contact with me". But Nancy and Peter did contribute to this situation.

[12]

Visits to Maria Before her Death - 2009

The parties were at issue about whether John visited his mother Maria much before her death. John's version was that other family members kept him away from her bedside. Peter and Nancy's version was that he chose not to attend upon her.
There is exaggeration on both sides of this particular dispute. There is a sound basis for believing that Peter and/or Nancy took active steps to exclude John from the bedside despite the fact that Maria wanted John to be there. One of the witnesses not cross-examined verifies this. Mr Franco Nastasi, the husband of one of Pina's aunts, visited Maria at Royal Prince Alfred Hospital, when Angela was there. His wife Violetta held Maria's hand, who complained about John, "he don't come". I accept that Mr Nastasi understood Maria as referring to John in this statement. He says, and I accept, that he asked Maria whether she would like him to call John to bring him to the hospital. He says that Maria had difficulty talking but moved her eyes in a motion "as if to say 'yes'". But the matter was not followed through.
His wife Violetta confirms this evidence, noting that Maria was facing Franco and trying to speak to him in words that Franco was confirming "Giovanni hasn't come". I infer from this evidence that Maria probably did want John to come to her bedside. One suspects that as a mother she would always have wanted to see one of her children.
John and Nancy paint quite a different picture: a picture of Antonio and Maria requesting that John be kept away from Maria's bedside. In my view this is partly correct. Antonia is probably less than happy to have his wife's dying days disturbed by regurgitation of the conflict that was properly inevitable if John commenced to visit and Nancy and Peter became aware of it.
But Nancy and Peter were not prepared to be flexible at this time and make it clear to John that he was accepted to them despite the past. Their voices were never added to the cause of persuading Antonio that overall family reconciliation might yet possible. They contributed to excluding John from contact with Maria. This conclusion is supported by what happened next at Maria's funeral.
A consequence of the exclusion is that it cannot be denied that the Court should accept Peter and Nancy's evidence about their devotion to their mother with the approval of their father in the period before her death. Their positive inclusion in the circle of family affection with both parents, and Angela and her family at that time, cannot be doubted.

[13]

Maria's Funeral - November 2009

At Maria's funeral, Nancy and Peter humiliated John and Pina. Their humiliation was public, deliberate and effective. Pina's evidence is a sound platform for the Court's findings about these events. The account given below of what happened at Maria's funeral is substantially based upon Pina's compelling and, in my view, accurate evidence.
Maria's funeral was held on 24 November 2009. With Nancy's knowledge, Peter engaged security guards on behalf of the family, principally to keep watch over John and obstruct his freedom of action at the funeral. Pina says, and I accept, that the security guards approached her husband John and herself when they entered the church for the funeral but they were ultimately permitted to stay for the service. Once the service was concluded, John and Pina followed the hearse to Top Ryde Cemetery. I accept that they were followed by the security guards. The presence of the security guards whose attentions appeared to have been directed at John and Pina, the whole day was "very embarrassing" for Pina. John gave similar evidence of his embarrassment, which I accept.
Violetta Nastasi, one of Giuseppina's aunts, also confirmed that the security guards were at the funeral. She elaborates her assessment, which I accept, "this made the funeral extremely uncomfortable and scary for me". Violetta Nastasi also confirmed that there was no mention in the eulogy of John as being part of the family. I accept this as accurate.
Peter did not dispute that he engaged the security guards. Rather, he took the tack in evidence that the security guards had been employed at the request of Antonio, who was Maria's executor. The Court finds that this explanation is correct. It is reasonably consistent with what appeared in the section 100 statement made only less than 18 months before. It can be assumed that if Antonio had reached the stage of exasperation that he had to give nothing to John under his will that his feelings would run sufficiently deep that he may well have instructed Peter to remove reference to John at Maria's funeral. But that is the enthusiasm with which Peter carried out this instruction in the failure to do anything to ameliorate its effect that shows the depth of Peter's antipathy towards his brother.
Peter's engagement of security guards was part of a wider course of public humiliation of John at the funeral. The other major act of humiliation was the complete deletion of John's name from mention at the funeral. So effective was this that I accept Pina's evidence that after the ceremony, the priest conducting Maria's Requiem Mass approached John and her to apologise. He said that he had been "informed that Maria only had three children".
Peter did not deny ensuring John's name was not mentioned at the funeral. His admission, in fact, makes understandable Pina's evidence that she thought that the security guards "had been employed by the family to keep John and I from entering the funeral". She says "we went inside anyway". On this matter, I do not entirely accept Pina's evidence. Peter engaged the security guards not so much to keep John and Pina away but to keep watch, especially over John.
John's deletion from Maria's funeral documents was stark. The back page of the funeral booklet contains text in the form of a letter addressed to Maria. Written in verse it contains words that could only have been written by her children. For example part of the text says, "We love you Mama, we always will, but losing you has shattered our hearts". The letter is signed "Love Angela, Nancy and Peter". There is no mention of the eldest son, John. It is little wonder the priest thought that Maria only had three children.
I do not accept that there was any reasonable basis for Peter or Nancy to fear what John might do at Maria's funeral. John's violence against fellow family members was long in the past. And Pina was an obvious balancing influence on John in such a situation. But equally I accept that Mario had a firm view that he did not want John as part of the funeral. It is difficult to accept that all of the jobs occlusion could have proceeded without Mario's approval. This alone tends to affirm the thrust of the 2008 section 100 statement.

[14]

Family Relationships - November 2009 to November 2014

After Maria's death there was little contact between John and Giuseppina and Antonio. Given Nancy and Peter's attitude to John, this comes as no surprise. By this time Nancy and her family had already moved into the Haberfield home. It would have been almost impossible for John to visit his father without seeking Nancy's permission. A quiet visit from John to Antonio would have risked detection by, and retribution from, Nancy and Peter.
I generally accept John's reasons for not being in contact with his father between his mother's death in 2009 and his father's death in 2014. Nancy was determined to exile John from the family. Her violently hostile reaction to John in the courtroom is sufficient evidence for the Court to infer that John could reasonably have expected a similar reaction had he crossed Nancy's path in attempting to visit his father.
Nancy's uncontrollable courtroom abhorrence of John was the product of longstanding antipathy, which would in my view have been likely to have been deployed against him at will. Moreover, he perceived that would be Nancy's likely reaction to him. The Court has only seen her loathing of John once; he had no doubt seen it many times. Indeed Mr Phillips SC submitted with considerable effect in final submissions that if Nancy's outburst in Court was what she was prepared to display in public, it may be inferred that what she would do away from public gaze would probably have been even stronger.
In my view Nancy and Peter were incapable of being reasonable gatekeepers earlier in granting access to Maria as she lay dying and later to a fading Antonio. John was quite reasonably entitled to see them. What he had done in the past deserving of condemnation, but for his own peace of mind and self-protection he made the decision not to provoke Nancy or Peter by attempting to contact his father.
Nancy and Peter characterise this period as one in which John neglected his father. This oversimplifies reality. They possess no insight that their own conduct towards John might have created some deterrent to John's visiting his father. I find that it was.
But John did not visit during this period. He did not even appear in my view to try. He seemed to let things drift. In the meantime there is little doubt that Peter and Nancy undertook the lion's share of caring for and creating a reasonable social life for their aging father. Peter was particularly devoted to his care and was involved in the planning of renovations to make a house more comfortable for his father. I accept both Nancy and Peter's evidence as to their tender care for their father during this period. John is not a position to contradict what they say because he was not around. Whatever may be said about Nancy and Peter contributing to John's distance from the family there are ways that he could have started to attempt to bridge the gap seemed beyond him to even try. That is how things remained until Antonio's death.

[15]

Antonio's Funeral - November 2014

John's public humiliation as being unworthy of recognition as Antonio's child continued at Antonio's November 2014 funeral. Peter once again claimed he was carrying out his father's wishes in excluding any mention of John at Antonio's funeral. Whatever Antonio's actual wishes were, Peter was unwilling to interpret them with any liberality towards John.
On the back cover of the Mass book for the deceased's funeral the deceased's relationships are described in Italian, starting with his late spouse Maria, his siblings and his children. The relationships described then extend to close friends. The fact that Angela, Nancy and Peter are included and John is excluded is evident, even in the original Italian. John's exclusion from the list of children needs no translation into English: "Caro ed amato marito della defunta Maria, adorato padre e suoero di Angela e Nick Bouyioukos, Nancy e Antonio Brunetti, Peter e Maryanne Barbanera, orgoglioso nono di Giuliana, Antonio, Leonardo, Donatella, Dante…"
It can be accepted that by 2002 relations between John and his other siblings were dysfunctional. This persisted right through until Maria and Antonio's deaths. But what effect did that have on John's relationship with his parents?
Much of Nancy and Peter's poor opinion of John was thoroughly justified, as the early section of these reasons shows. But it is impossible to assess John's relationship with his parents without understanding the depth of Peter and Nancy's reaction to John's family misconduct especially in his early years. One of the keys to understanding the nature of their reaction is to look at what happened at the two funerals. They were so determined to publicly declare that John did not exist as a son of Antonio and Maria that they were prepared to publicly humiliate him in the way that they did.
In my view, Nancy and Peter were quite likely to do similar things less publicly. John's evidence is right: his siblings tried to exclude him from contact with Antonio and Maria, to the point that John and Giuseppina had to furtively visit Antonio and Maria only when the siblings were not there. There were no family gatherings after 2002.
In part John's own conduct had so distanced himself from his siblings that they found his presence intolerable. But also his siblings pressured their parents to exclude John, from the society of the family, as John says. His evidence for this is Maria and Antonio's reluctance to engage with him. I accept his evidence on that subject.
This brings the parties' relationships up to the date of the deceased's death. Nothing of consequence has occurred since then relevant to the issues between the parties.

[18]

Adequate Provision

Finally the issue is whether an order for provision should be made in the plaintiff's favour. The test of whether an order for provision should be made out of an estate in any case is set out in Succession Act, s 59(1)(c):- "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both."
There are many judicial statements summarising the operation of this legislation which is often said to include a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation:- "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 Co8. The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. 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 Leeder9, 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."
Whether the two-step test operates with the same full vigour in the current legislation has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case, which is a clear one on the question of whether or not adequate provision has been made for the plaintiff once he has been shown to be an eligible person.
Other authorities explain in greater detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ (as his Honour then was) in Drury v Smith [2012] NSWSC 1067 at [153], [154], [155], [158] and [160], which relevantly provides:- "[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" [154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." [155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." … [158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." … [160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.""
The application of these principles involves examination of a number of specific issues in this case. Preliminary to those issues the Court examines the financial and personal position of the plaintiff and the other principal beneficiaries of the estate.

[19]

The Plaintiff's Financial and Personal Position

The plaintiff was successful throughout his life in building up his smash repair and motor repair business in which he still has an interest. He is semi-retired living with his wife Pina and his two adult children, at their property in Strathfield.
The Strathfield property is substantial. The house has six bedrooms, four bathrooms, four garages, a tennis court and sits on a property of over 900 square metres. Aspects of the renovation of the Strathfield property are discussed below.
John had operated his smash repair business from a property in St Peters ("the St Peters property"), owned by Pina. But the medical and personal reasons John recently decided to reduce his work commitments to reduce the stress upon himself and transition to retirement. As part of this process Pina sold the St Peters property in 2015 for $2,660,000. John also sold the mechanical and smash repair business at the St Peters property for $166,000. Pina also sold an investment property in Arncliffe for $4,940,000. Some of the monies from these sales have been used to buy and renovate the Strathfield property. These sales have generated CGT liabilities for which the plaintiff has not yet been assessed. But the parties were able to agree on estimates for these liabilities so that a reasonable picture of John and Pina's assets could be obtained.
The plaintiff and his wife's current asset position is set out in the following schedule of assets and liabilities table (as at 13 December 2016- Exhibit 3), therefore can be set out as follows: ASSETS

            Barker Rd, Strathfield                                     E$3,725,000.00

            G.Barbanera - CBA Access Account                           $64,845.50

            G & G Barbanera - CBA Access                               $24,025.02

            G & G Barbanera - Term Deposit                             $3,700,000.00

[24]

This amounts to a figure of over $50,000 per year. In addition their other major outgoing is a mortgage payment of $5,110.00 per month over their Strathfield property. They currently have income of about $74,000 per annum and expenses of about $110,000 per annum. Their income will reduce further (by about half) once their CGT liabilities to the Australian Tax Office are satisfied.
John also deposed that he and Pina's present family home was undergoing renovations. He estimated and it was not contested that $40,000 would be required to complete the outstanding renovation works.
Pina sustained fractured thoracic vertebrae in a motor vehicle accident on Fraser Island on 7 January 2010. This injury has continued to cause her problems. She received a settlement of $525,000 for her claim for personal injuries arising out of this accident.
John has faced a number of medical challenges in recent years. He suffers from sleep apnoea and uses a machine to assist his sleeping each night. He was diagnosed with cardio myopathy in 2007 and has been in the care of Professor Wilcox since he was so diagnosed. In December 2013 he was admitted to Royal Prince Alfred Hospital to have a stent inserted into his heart and remained in hospital for five days. In September 2015 he was admitted to Strathfield Private Hospital to have a defibrillator inserted in the event that his heart stopped but the defibrillator has dislodged and he is required to undergo further surgery in respect of that. I accept that he has been given advice by Dr Wilcox to "take it easy" and reduce his stress levels, and that is one of the reasons he has sold his smash repair business.
He has been advised to undertake a stomach stapling operation as well. He undoubtedly faces a number of financial challenges associated with his health in the future.
But the plaintiff was born in 1963 and was aged 53 at the time of the hearing. He ran a smash repair business towards the end ultimately involved him in employing over a dozen employees. His role was one as an expert in the smash repair industry, who had done almost everything to build a business from the ground up but who by the time of his retirement on medical advice was mainly involved in managerial work. In my view, assessing him overall he struck the Court as a very determined man who would always try to make the best of life and was likely in my view to attempt to continue remunerative work in some form, for as long as he possibly could, rather than simply sit on his hands.
John committed himself to the present family home in Strathfield in 2013, shortly before Antonio died. He and Pina had purchased a house in Greenacre at the time they were married in May 1990 for $205,000. They sold that home in 2012 for $825,000 and in 2013 purchased their current Strathfield property for $2,200,000. John and Pina then embarked upon a massive program of renovation of the property, costing some hundreds of thousands of dollars. That is where some of the proceeds of the sale of their other properties went.
I accept the evidence on behalf of the plaintiff that Pina had cancer in 1995, she has been out of the labour market for 25 years and the effects of the motor vehicle accident in a practical sense now preclude her from remunerative employment.

[25]

Nancy and Peter's Financial and Personal Position

Peter did not put his financial position in issue. The Court can assume that he has no financial needs to be weighed in the balance against the plaintiff's claim. Peter was particularly solicitous for his parents' welfare as they aged. I accept all his evidence about his considerable care for them in their declining years. But the financial positions of Nancy and Giuliana are different from Peter.
At the time of the hearing Nancy was aged 47 and had twins then aged eight. She and her husband currently have both children enrolled at the local primary Catholic primary school and they intend to send them to a Catholic secondary school in the nearby area, where secondary school fees are currently $7,500 per child per year. Nancy and her husband, Antonio, intend to continue to assist the children to meet all their living and other expenses, if they wish to go to go on to university.
After Maria had died, in 2010 Antonio asked Nancy, Antonio in their children to move into the Haberfield property to care for him and they did so. After living at Haberfield for some years, in January 2015 Nancy and her husband, Antonio, sold their own property at Croydon Park ("the Croydon Park Property") for $870,000.00. Following the payment out of the mortgage on the Croydon Park Property, Nancy and her husband Antonio were left with net sale proceeds of $400,000, which sum is currently held in a St George Bank Saver Account. They have no other real estate. So they are to a considerable degree committed to the Haberfield property and they do want to buy it.
Nancy also deposed that she and her husband own two motor vehicles: an 2015 Audi A4 and a 2016 Audi Q3, which are both under finance for a total liability of around $80,000. Any equity that they hold of these two vehicles appears to be minimal.
Nancy earns approximately $800.00 per week after tax as an Office Administrator with the Department of Family and Community Services. Her husband Antonio currently earns around $1,000 a week after tax operating a business importing wholesale wines, in partnership with others.
Nancy claims, and I accept, that her family's estimated weekly expenses are as follows: Item Amount Food and groceries $550.00 School fees, sports and uniforms $150.00 Motor Vehicle Repayments $320.00 Motor Vehicle Running Costs $180.00 Council rates, water rates and utilities $100.00 Clothes and personal items $35.00 Birthday and other gifts and presents $20.00 Repairs, maintenance and incidentals $100.00 Savings $345.00 TOTAL $1,800.00

[26]

Nancy wishes to purchase her brother Peter's share in the Haberfield property and to purchase her brother-in-law's share (held for Giuliana) of the property for a total of about $1,400,000. As indicated, she and husband Antonio have about $400,000 in savings. It is not contested that they have received a conditional loan approval of $960,000 from St George Bank to proceed with the purchase of the Haberfield property. Alternatively, she says that if the Haberfield property is to be sold for about $2.1 million net and she receives a one third share of the sale proceeds of the property at $700,000 (less expenses) that would leave her with about $1.1 million plus borrowings to be able to purchase another suitable property for her and her family, preferably in the Haberfield or Five Dock areas, close to her children's school - the area with which they are now familiar. She believes that with rising Sydney house prices she would be unlikely to find a suitable property in Haberfield area for less than $2 million.
Nancy has a strong personal claim on her father's estate. I entirely accept her evidence that she looked after both her mother and father with great care and love. She took her mother to all her doctors and specialists appointments and accompanied her to all of her more than 60 hospital admissions, where she acted as interpreter for her mother in the years from about January 1999 up to up to her mother's last hospital admission before her death in November 2009.
I also accept that Nancy was a daily companion for her parents. She took her mother shopping when she was alive, cleaned her parents' house for them and took them on family visits and outings.
She gave similar close support to her father, especially in the final years of his life. She took him to most of his doctor's appointments and hospital admissions from about August 1998 until his final hospital admission before his death in October 2014. She helped him with his shopping, cooked for him and cleaned his house. Towards the very end of his life her husband helped him shave and bathe, as by then they were living in the same house at Haberfield with Antonio. After Maria's death Nancy regularly took her father to visit her mother's grave.

[27]

The Financial and Personal Position of Angela's Daughter, Giuliana

As to the father of Angela's child Giuliana, the financial circumstances of Mr Bouyioukos are relevant to ascertaining what sources of funds may be available for her in the future. Giuliana will take her mother Angela's share under the will and represents a competing centre of need to be considered alongside John.
Mr Bouyioukos' financial resources to care for Giuliana are not strong. He owns his own home at Emu Heights in Western Sydney. It is unencumbered by a mortgage and is worth he believes $500,000, maybe $600,000. He also declares he owns a 2008 Ford Falcon sedan worth about $7,000. He does not have any substantial liabilities. He had a mortgage over his Emu Heights property but he has a talent for doing up classic cars and managed after many years work to sell one at a sufficient price to pay off his mortgage. But he still has to meet outgoings over the property.
His income position is also not strong. In February 2016 he worked part-time three days a week cleaning cars for a car replacement business called Right 2 Drive, and at that time he usually earned between $375 and $400 per week; this is $25 per hour for a minimum of 15 hours' work per week. The work is unskilled and seems to be all that Mr Bouyioukos is able to secure for himself on a regular basis at this time. To overcome the uncertainty of Mr Bouyioukos' part-time work and to assist him in supporting Giuliana.
In February 2016 Mr Bouyioukos received, depending on the week, Centrelink New Start payments in the range of $270 per week to $300 per week, depending upon how much he has earned from his employment in a particular week.
Mr Bouyioukos' earnings are not sufficient for him to be able to set aside any savings for Giuliana in the future. He says, and I accept, that he basically lives "day-to-day trying to make ends-meet for my daughter and me". His incapacity to save from his income beyond meeting day-to-day expenses currently presents a major disadvantage for Giuliana in the future.
Mr Bouyioukos' employment situation improved slightly in October 2016. By then he was working about 18 to 20 hours per week, earning about $30 an hour with Right 2 Drive, usually earning a total of about $540 to $600 per week. But this was still not a sufficiently substantial figure to free him from the need for come and go Centrelink Newstart payments. He still receives these benefits of up to $100 per week, depending on how much he earns from Right 2 Drive as a casual. His increased income in 2016 has meant that he has been able to save a small amount at the time of hearing but it is still less than $1,000.
Mr Philip's SC's cross examination did establish that Mr Bouyioukos was doing up a motor vehicle, a 1975 green Ford Falcon, which was worth approximately $20,000 - $25,000 and had been omitted as an asset from his affidavit . But the omission was not intentional. Mr Bouyioukos has been doing the vehicle up over a number of years and when he will realise value was uncertain at it. His immediate intention and the affidavit was to "put down the car that I drive every day".
Mr Bouyioukos paints a picture of his daughter Giuliana in late 2016 as a happy year five student at the local public school. She is currently in good health and doing well at school, although she misses her mother greatly. She is supported in her emotional development and affection not only by her father but from Mr Bouyioukos' parents, his two sisters and by Nancy and Peter. She enjoys her friendships and is developing very well.
But Mr Bouyioukos is keen for her to go to high school and if possible attain higher education if that is her ambition. He is very keen to support her if she wants to continue her education. He plainly wishes to give her the best quality of life that he can through good education, if that is possible. He says that if he receives a benefit from Antonio's estate that he will place most of it into a trust for Giuliana for her benefit, administered by trustees other than himself. He would keep the balance of any benefit received to make life a little more comfortable for himself and Giuliana as she grows up.
The Court assesses Giuliana's needs of financial support and those of her father as real, immediate and projecting well into the future.
The credibility of Mr Bouyioukos was challenged a number of ways. It was suggested that he had presented himself in his affidavit as a single father of Giuliana struggling to make ends meet, when in fact he had formed a relationship with another woman since Angela's death.
But this challenge made little headway. Mr Bouyioukos explained quite creditably that he did not think he had to include aspects of his personal life since Angela's death in his affidavit. And more importantly, upon closer questioning by Mr Phillips SC it emerged: that Mr Bouyioukos' relationship with this other woman did not appear to involve any net financial benefit to the household that he Giuliana maintained; and there was certainly no clear immediate plans for Mr Bouyioukos to marry this other woman, who lives in Melbourne, has a number of children and only visits him every now and again.
Mr Bouyioukos has a number of significant health challenges. He suffers from ulcerative colitis and Crohn's disease for which he takes medication. He is also suffering from a condition of blood clotting in his right leg for which he takes medication. These illnesses have caused him other consequential problems. He has lost most of his teeth for example.
Mr Bouyioukos has suffered Crohn's disease since he was about 17 years of age. His symptoms include internal bleeding through his bowel, pain and diarrhoea. Mr Bouyioukos has been advised that there is a high probability that this will eventually develop into bowel cancer.
When his symptoms flare up, Mr Bouyioukos takes a prescribed steroid, Prednisolone. But this has side effects including psoriasis to both his legs and brittleness in his teeth, which has caused them to decay and crumble.
The blood clot in Mr Bouyioukos' leg has been there for about five years, undiagnosed for the first three. This causes his leg to swell and is painful.
He also has problems with back pain, which prevent him from standing or sitting for prolonged periods. Standing for long periods causes his legs to swell and his feet and toes to go numb.
But Mr Bouyioukos' health issues have also impacted upon his employment. Whilst he is suffering these health issues he is unable to return to his usual occupation as a spray painter and the kind of job and hours that he can work are limited. It is not obvious in the medium term he will overcome these health issues and may always be limited in future to what is, in substance, unskilled and therefore fairly low paid work.
All of these medical conditions are not just problems for Mr Bouyioukos. There is also a real risk that they will disadvantage Giuliana. Mr Bouyioukos is far less likely to be able to set aside funds to save for her future, if he also has to meet out of his limited income an unpredictable range of medical expenses of his own. Given his medical history it can be anticipated that he and Giuliana in the future may well become more dependent upon Newstart allowances as his employment income diminishes.

[28]

Should Provision be made for the Plaintiff?

The plaintiff's claim for family provision raises the following issues.
The first question which the Court must determine is whether the provision made for John under the will, in this case zero is inadequate for his proper maintenance, education and advancement in life. In my view, having regard to all the circumstances this provision was not inadequate, having regard to John's financial position, the size of the estate, the totality of the relationship between John and the deceased and the relationship between the deceased and the other persons who have legitimate claims upon his bounty.
The plaintiff's financial position is comfortable at just over $5 million. Once the CGT liabilities are met he will have the Strathfield home and about $1.35 million in cash. In addition to that, in my view, he has both a capacity and a propensity to work, notwithstanding his medical challenges. In my view, his determination, which has resulted at times in aggression, has led to the building of a successful business. It will also allow him in my view to find some kind of consulting or other work to reward himself financially in the future.
It is true that his household budget is currently in a negative position. But that is largely a situation of his own making. His cash financial resources were even larger before hundreds of thousands dollars was spent on renovations to the Strathfield property. Whether he and his wife need the Strathfield property is a matter for them to decide. In my view the Court need not determine in this case that a proper level of maintenance and advancement in life for John is to maintain him in the Strathfield property, which his children will no doubt at some stage leave in the next few years. He has ample capacity to adjust his financial resources so that he can live within his means by expanding his income or reducing his expenditure.
Mr Phillips SC's skilful submissions took as good account of this challenge as could be done. He indicated that what the Court should award is a buffer to the plaintiff of about $200,000 to $300,000 which is about 10 to 15 per cent of the total value of the estate. This is a buffer which would allow him to finish his renovations and pay any medical expenses before he decides to try and get a job. Mr Phillips SC rightly pitched the financial estimate at this level because of the clear recognition of the claims that the other beneficiaries had both financially and morally on the bounty of the deceased.
But there are several problems with the buffer argument. In the first place it only defers for a few years a problem that John and Pina will have to face up to anyway. Once he has eaten through $200,000 he will still have to make a decision to reduce his expenditure or increase his income. I see no good reason why he should not do that now. He will have a buffer of over $1.35 million in his bank account on which he can draw. Adding another $200,000 to $300,000 could really only be justified on the basis that it would mean that he would not therefore have to dip further into the money he already has. This does not appear to me to be a very strong argument for an award in the plaintiff's favour.
But weighed against that are other substantial factors. First, as to the size and nature of the deceased's estate, it can only be observed that the plaintiff and his wife's net assets of over $5,000,000 are already about double the size of the estate, from which provision is being sought. And that is an estate on which Peter, Nancy and Giuliana have real and genuine claims. I see no reason to diminish at all the entitlement of any of the other beneficiaries in this estate, who (as to at least two of them) suffer real and oppressing financial concerns of their own and whose asset positions are considerably less advantageous than John and his wife. Their interests weigh heavily in my view against the notion of any reduction in John's favour.
This consideration is even stronger when one takes into account the tumultuous family history of the Barbanera family. Although the Court has found that Nancy and Peter have to some extent influenced their parents against John, he was the prime aggressive mover in creating family chaos and disharmony over the years. The plaintiff did distance himself from the deceased and ultimately bears responsibility for not attempting to heal the rift he created with his father.
In my view this is not a case in which the Court should conclude that adequate provision for John's proper maintenance, education or advancement in life has not been made by the deceased's will. The Court will dismiss the plaintiff's claim.
The plaintiff has failed to secure any relief in these proceedings. But the Court wishes to observe that this is not due to any want of good advocacy on his behalf. In my view, the plaintiff's case was advanced to its very best advantage by Mr Phillips SC and Mr Weaver and the solicitors instructing them, Greg Walsh and Associates. Every argument that appears to be available to the plaintiff has been advanced on his behalf with as much persuasiveness as the merits of the plaintiff's case permit. The plaintiff's case has failed because of the Court's findings about the relationship between the plaintiff and the deceased and because of the plaintiff's current financial position which is not one which in the circumstances can command the conclusion that he has been left without adequate provision for his proper maintenance, and advancement in life.

Barbanera v Barbanera & Ors; Estate of the late Antonio Barbanera

At a glance

Court

Decision date

Before

Source

Judgment (30 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)

Cited By (1)