Brown v Brown - [2022] NSWSC 1393 - NSWSC 2022 case summary — Zoe

NSWNSWSC

Brown v Brown

[2022] NSWSC 1393

Supreme Court of NSW|2022-02-11|Before: Henry J, Cohen J, Kirby P

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-02-11

Before

Henry J, Cohen J, Kirby P

Catchwords

Blendell v Blendell [2020] NSWCA 154 Chan v Chan [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646

Source

Original judgment source is linked above.

Catchwords

Blendell v Blendell [2020] NSWCA 154 Chan v Chan [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646

Judgment (37 paragraphs)

[1]

Background facts

The deceased was born in 1943. He worked as a Mine Deputy and lived in or near Wollongong, New South Wales, for most of his life. He had a sister, Joan, and was close to her husband, Colin.
In 1971, the deceased commenced a relationship with Margaret who was previously married to Graham Truswell. David was born in 1961 and Alison was born in 1965. Margaret and Graham separated in 1966 and their marriage was dissolved in 1971 or 1972. David's evidence is that Graham's religion [1] caused a strain on the marriage and conflict regarding the children's religious instruction. After Margaret and Graham separated in 1966, David and Alison lived with Margaret. David saw Graham every second weekend and spent 50% of the school holidays with him.
In mid 1971, the deceased moved in to live with Margaret, David and Alison at Margaret's rented accommodation. The deceased and Margaret were married in December 1972. After they married, David did not see or have contact with Graham until 1982.
In February 1973, the deceased and Margaret purchased a house in Figtree, New South Wales (the Valley Drive property) which they moved into with David and Alison. In mid-1973, Robert was born.
The deceased, Margaret, David, Alison and Robert lived together at the Valley Drive property until January 1978 when David was asked to leave the house by Margaret. He went to board with another family. David had left school the previous year, at the age of sixteen. He gives evidence that he was working and supporting himself when he moved out of the Valley Drive property.
In mid-1978, David moved back to the Valley Drive property. He slept in a caravan that was separate from the house and joined the family for meals and other gatherings. David paid board to Margaret and the deceased while he lived in the caravan.

[5]

Superannuation death benefits

Robert excludes the superannuation accounts as he says the superannuation death benefits were erroneously included in the Inventory of Property and do not form part of the deceased's estate. He gives evidence that the death benefits in respect of the deceased's superannuation Mine Super and MLC MasterKey Super accounts were paid to him in 2020 after he made applications to the trustees of the relevant funds to have them paid out to him (Robert's affidavit affirmed 27 November 2020 at [7], T289.9, T292.3-10). The amount received by Robert, of $217,508.42, is held by him in a Commonwealth Bank Youth Saver bank account (in the name of his daughter), account number xxxx8843 (T341.48-T342.3, CB954).
David submits that it was clearly the deceased's testamentary intention that his superannuation accounts were to form part of his estate as the Inventory of Property for probate was prepared by the deceased's solicitor, Mr Leo, who also prepared the deceased's last will. He submits that the superannuation amounts should be reincorporated back into the estate for the purposes of valuing the estate.
David also contends that the money from the deceased's superannuation accounts appeared to have been appropriated from the estate by Robert (when he sought to claim it for himself as a dependent of the deceased and informed the trustees of the fund that he would like to be considered as a potential beneficiary) and that Robert had sought to invoke (and did invoke) the discretion of the trustees where there is no scope to do so due to the existence of binding death benefit nominations (David's closing submissions at [283] and [291]). In closing submissions in reply, David asserted that the nomination forms were not binding and also made the following submissions (at [12], [16] and [33]): the Court should make a finding that Robert, as executor, has failed to account for an unknown sum of money held in the MLC MasterKey Super account xxxx2287; if the Court finds that the superannuation accounts did not form part of the estate, then it would have to find that Mr Leo acted incompetently or contrary to his client's instructions by including the assets in his application for probate; and if the Court finds that the "binding non-lapsing nominations" remained unchanged and were probative of the deceased's testamentary intentions, then the Court would need to find that the trustees of the two superannuation funds acted unlawfully or illegally by disregarding their strict statutory duty not to exercise any discretion so as to give effect to the binding non-lapsing determinations.
I am not persuaded by David's submissions. In my view, the evidence does not warrant findings that Mr Leo, the trustees or Robert acted improperly in relation to the superannuation accounts, or that the deceased intended for the superannuation accounts to form part of his estate.
It was a matter for the trustees of the Mine Super and MLC MasterKey Super superannuation funds to determine and distribute the deceased's superannuation death benefits in accordance with any existing binding death benefit nominations or in the exercise of trustee discretion based on the terms of the relevant trust deed and superannuation legislation.
The deceased had signed a non-lapsing binding nomination form in favour of Robert (as a son) in relation to his MLC MasterKey Super superannuation on 14 September 2010. On 2 October 2020, MLC MasterKey Super notified Robert that the death benefit amount of $44,495.57 was paid to him. David's submissions raise the question of whether the deceased's nomination form remained operative and whether the payment related to the deceased's applicable MLC MasterKey Super account.
I am inclined to the view that the deceased's nomination in favour of Robert continued to be binding on the trustees of the MLC MasterKey Super fund. The form was explicitly stated to be "non-lapsing" and "binding on the Trustee", was not expressed to only apply for a particular period of time (such as three years) and the nomination of Robert as his beneficiary was still appropriate to the deceased's personal circumstances at the time of his death. Based on the wording of the form and the fact that it was signed by two witnesses (a requirement for acceptance by the trustee), presumably the trust deed expressly allows for non-lapsing (or permanent) binding nominations, such that the requirements of reg 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (which provides that notices such as the nomination form lapse after three years) did not apply: Application by BT Funds Management Ltd [2017] NSWSC 45 at [5]. Also, although the non-lapsing nomination form refers to a superannuation account number (xxxx2287) which is different to the number stated in MLC MasterKey Super's 2 October 2020 letter to Robert (which refers to account number xxxx8060), the non-lapsing binding nomination form was expressed to apply to all of the deceased's "MLC MasterKey account(s)" and the deceased's death benefit payment was in respect of the same customer number as that referred to on the nomination form.
As to the Mine Super account, the deceased had executed a binding nomination form in relation to Auscoal Super (now known as Mine Superannuation Fund) on 19 October 2010 that nominated Robert as the dependent beneficiary, but it was expressed to be current for three years and there is no evidence that this nomination form was renewed or confirmed by the deceased. On 15 June 2020, Robert completed a "Dependency Confirmation" form that identified Robert as a child of the deceased who was not financially dependent on the deceased at the time he passed away and who would like to be considered a potential beneficiary (Ex 83). On 11 August 2020, the Trustee of the Mine Superannuation Fund notified Robert that it had considered and approved the distribution of 100% of the death benefit ($173,012.85) to Robert (son) as a "Dependant" under the trust deed and non-dependant for tax purposes.
The trustees of Mine Super (and MLC MasterKey Super if the non-lapsing binding nomination form was no longer operative) were entitled, in the exercise of their discretion, to distribute the deceased's death benefit to Robert. He was a "dependent" within the meaning of s 10 of the Superannuation Industry (Supervision) Act 1993 (NSW) (SIS Act), as a child of the deceased. It was also Robert (as a son and a dependent) and not the deceased's estate that the deceased had identified as the sole beneficiary of his death benefits on the nomination forms he had signed, matters which seem to me to be something the trustees may have taken into account when considering Robert's application(s) in relation to the death benefits. I also note that, even though "stepchild" is included within the meaning of "child" in s 10 of the SIS Act, the Superannuation Complaints Tribunal (SCT) has ruled that a child of a deceased's former spouse was not a potential beneficiary as they were not a "child" of the deceased (as the deceased had divorced their former spouse prior to their death): Determination D10-11/06 cited in Australian Superannuation Handbook: 2022-23 (1st ed, 2022, Thomson Reuters) at [17 500] (Superannuation Handbook).
To my mind, nothing can be gleaned from the deceased's will as to whether the deceased considered his superannuation death benefits to form part of his estate. The will does not mention superannuation but simply refers to "my whole Estate". I do not consider that I should infer from the Inventory of Property that the deceased instructed Mr Leo to include his superannuation accounts as an estate asset. As noted above, the distribution of the death benefits fell to be determined by the trustees of the funds. As Robert submits, the superannuation accounts may have been mistakenly included in the Inventory of Property as an estate asset by Mr Leo. In my view, the evidence overall does not support the drawing of the inference that the deceased changed the binding non-lapsing nominations prior to his death and then altered his testamentary intentions when he left the superannuation accounts to his estate, or that there was some challenge to the nomination form such as, for example, on the basis that the deceased lacked testamentary capacity.
An interest in a superannuation fund does not generally form part of an estate of a deceased person for the purposes of distribution, although the Court may take account of a superannuation payment in deciding the jurisdictional question. It may also designate an interest in or payment from a superannuation account as part of notional estate: Vanderloo v Milne [2014] NSWSC 1932 at [18] and [23]; Clifford v Mayr [2010] NSWCA 6 at [50] per Campbell JA; Superannuation Handbook at [17 300].
To make an order designating superannuation as notional estate, it must be for the purpose and in the circumstances referred to in s 78 of the Succession Act. The Court needs to consider whether the payment to Robert was a "distribution" of the estate or a "relevant property transaction" and whether the other provisions of Division 2 apply. If satisfied of these matters, the Court must also consider and be satisfied of the matters referred to in s 87 to s 90 of the Succession Act. These matters were not addressed by David's submissions. Rather, he contended that whether any component needs to be subject of any notional estate order is largely irrelevant because, even if David's claim is accepted, the "lion's share" of the estate or any notional estate shall still be paid to Robert (closing submissions in reply at [45]). By that submission, I understand David to accept that the question of whether the Court needs to designate any payment (such as the superannuation death benefits) as notional estate does not arise as the amount of provision sought (of $240,000) is less than the deceased's gross estate or any costs that would be paid if ordered: Succession Act, ss 89(2) and 99.

[6]

Other matters relating to the value of the deceased's estate

In written submissions, David also contended that Robert had artificially deflated the value of the deceased's estate, seemingly for the purpose of bringing it under the amount of $500,000. In particular, he submitted that the way in which the compromise of Alison's family provision application was resolved and Roberts's failure to disclose certain matters raised concerns about his conduct as executor.
In relation to the first point, I see nothing irregular in Robert's conduct as executor, in resolving Alison's potential family provision claim on the deceased's estate by making a payment to her of $50,000. Alison was an eligible person for the purposes of the Succession Act and the payment was made on a without admissions basis to avoid litigation. In my view, that payment was a legitimate estate expense and I do not draw any adverse inference regarding Robert's conduct as executor from the fact that he made the payment to Alison and was later reimbursed from the Estate bank account by Mr Leo. I reject David's submission that the inference is open that Robert was reimbursed so as to try and minimise the monies held in the estate for the purposes of the trial (closing submissions at [302]).
Nor do I consider that the payment of $50,000 to Alison should be characterised as having been made for the purpose of deflating the value of the deceased's estate because the recitals to the Deed of Family Arrangement between Robert and Alison refer to seeking to "preserve their relationship" when the evidence suggests it was not a close or happy one and Robert referred to Alison in an uncomplimentary fashion in his bank records at the time the payment was made (T333.13-15). As Robert explained in cross-examination, he was unhappy about making the payment and wanted it "out of the way" (T333.46-T334.6). Further, the payment was made pursuant to a Deed of Family Arrangement that recorded the terms of an arrangement that arose out of Alison's claim made on about 4 December 2019 and settlement discussions at the end of May 2020, prior to the notification of David's claim and commencement of these proceedings.
Robert gave evidence about the deceased's car and his receipt of the $4,000 sale proceeds for the first time when cross-examined about transactions in his bank accounts. He should have disclosed those matters in his administrator's affidavit, although I accept his evidence that the failure to disclose that matter was an "oversight", rather than finding that he was dishonest or motivated by anything more untoward (T328.11-30, T329.1-14,48-49). It follows that I reject David's submission that Robert should be referred to law enforcement authorities for further investigation in relation to what was described as "theft" from the deceased's estate and having deliberately told lies under oath in his administrator's affidavit (David's closing submissions in reply at [248]).
In conclusion, other than in relation to the deceased's car, I am not satisfied that David has established that Robert has "artificially devalued" the deceased's estate or he has failed to make proper disclosure in respect of the deceased's estate in some other way.

[8]

David's relationship with the deceased between 1972 and 1982

David gives evidence that from the moment he met the deceased, he liked and respected him and came to love him as his father. His evidence is that after Margaret and the deceased were married, David started to refer to the deceased as "dad". He says that he and Alison spoke with each other and decided they would ask the deceased if they could call him dad and the deceased said, "I'd like that".
David says he changed his surname to "Brown" in January 1973 and that he started High School using that name. He gives evidence that he told Margaret that he wanted to take the deceased's surname and she told him to go ahead and change it, and that it was legal to do so. It appears that David's name change was not recorded in the Register of Births, Deaths and Marriages until September 2005 (Ex 98). According to David, this might have been done at that time to obtain a passport (T187.28-36).
David describes the deceased as providing him with the care and support that a father would be expected to provide to a son and that he referred to David as "son", although open displays of love and affection were rare with the deceased. David says that during his teenage years the deceased taught him to be a "young man" (shaking hands, looking people in the eye etc), gave him gifts (including a dog named "Cassius"), took him on camping trips, attended sex education classes with him, taught David how to drive in 1977, was involved in disciplining David and frequently offered fatherly guidance.
David says that the family (Margaret, the deceased, David, Alison and Robert) holidayed together and attended other outings and celebrations as a family, for example, Christmas with other family members, such as Joan and Colin. He says that he virtually forgot about Graham and did not miss him.
David gives evidence that he was bullied and by 1975, had virtually given up on school. He spent most nights with a group of boys from the neighbourhood, with whom he went camping most weekends and experimented with alcohol. David gives evidence that Margaret was concerned about the drinking, the deceased was more relaxed about it, and David became closer to the deceased than Margaret.
When he moved out for six months at the beginning of 1978, David says he visited Margaret and the deceased and had his birthday at the Valley Drive property that year. After he moved back to the Valley Drive property in mid-1978 (to sleep in the caravan), he says he continued to have a father/son relationship with the deceased and gave evidence of often sitting and talking with the deceased late into the night after being out on a Saturday night with friends.
In February 1981, David started an electrical apprenticeship. He gives evidence that the deceased bought him his first set of tools and a toolbox. The following year Margaret and the deceased hosted David's 21st birthday party at the Valley Drive property and gave him a skiing holiday in New Zealand as a present.
James Gillis, who met David in 1981, gives evidence that he spent time with David and the deceased in David's "parents back yard" and observed warmth and affection between them.
Robert is 12 years younger than David. While they both lived in the Valley Drive property with the deceased, Robert was only five when David moved out for six months and nine when David left home in 1982. In cross-examination, Robert conceded (appropriately) that he did not have a good memory of matters before the age of 10, while David was living at the family home (T198.49-T199.2).

[9]

David's relationship with the deceased from 1982 to 2004

David says that, after he moved to Wollongong in 1982, he maintained regular contact with Margaret, the deceased, Alison and Robert, usually seeing them on a fortnightly basis.
David gives evidence that after Margaret and the deceased separated, David continued to regularly visit the deceased (who had taken "custody" of David's dog, Cassius), first at the Valley Drive property and then at the deceased's rental accommodation. He says that the deceased rarely visited David, although he would sometimes come and have dinner with David and Beverley when they were living together. As noted at [38], David did not attend any Christmas gatherings with the deceased and his family after he and Beverly hosted Christmas in 1989, and the contact between them reduced.
David gives evidence that he and the deceased shared an interest in motorbikes and cars, and they would sometimes go riding on their motorbikes together. In his affidavit, Robert rejected David's evidence on this issue (Robert asserted that the deceased and David could not have gone motorcycle riding together because David used to borrow the deceased's motorcycle and the deceased only owned one), although he accepted in cross-examination that he did not recall when David owned his own motorcycle and that it was possible that the deceased and David did go riding together because they both owned a motorcycle at the same time (T207.18-20).
David did not see the deceased at all between October 1990 and April 1992. David explains this as being due his mental health issues and withdrawal from social contact during that time (described at [40] above).
David says that by around April 1992, he had recovered enough to recommence visiting the deceased and did so, approximately once a week. He gives evidence that the deceased never queried why David had not visited him as regularly as in the past and that he did not tell the deceased about his mental health issues. David says that the deceased was not the sort of person to involve himself in such matters and he thought the deceased would regard David as a coward due to his suicidal thoughts. This belief appears to have been based on the deceased expressing a view to David and another person in 1977 to the effect that it was "bloody stupid" for David to talk about taking one's own life if a person was not happy and stating, "That's a bloody coward's way out". David gives evidence that he was left in no doubt that the deceased regarded depression and suicide as a contemptible weakness.
I have difficulty accepting David's evidence regarding this conversation and his assertion that the deceased was not understanding about mental illness in general, also referred to at [126] below. Leaving to one side the inherent fallibility of human memory (the conversation occurred some 45 years ago (when David was only 15 or 16 years old) and the overlay of perceptions and self-interest (Watson v Foxman (1995) 49 NSWLR 315 at 319), David's evidence of the deceased's views is not corroborated by and is at odds with Robert's evidence. In his affidavit, Robert describes his own mental health issues after a relationship breakdown in about 2000. Robert says that when he told the deceased about his dark thoughts and feelings, the deceased was emotionally available and supportive and came up from Wollongong two to three times a week to spend time with Robert. In contrast to David, Robert described the deceased as someone he could always turn to, was caring and supportive when Robert suffered from depression and suicidal ideation during his life, assisted him with doctors and psychologist appointments and openly discussed these matters with him. The deceased may have expressed some views that did not come across to David as supportive, but in view of Robert's evidence (which I accept), I do not find that the deceased was unsupportive of mental illness, including depression. It seems to me that David's reticence in raising his health issues with the deceased likely reflected a relationship with the deceased that was not as close as his submissions contend and statements about mental illness that he attributes to Margaret, Alison and other members of his family (see, for example, David's first affidavit at [23], [36], [40], [149], [150]).
David says that he maintained contact with the deceased after his move to Sydney, although from 1994, their in-person contact reduced to about four times per year (when David went to Wollongong) and they rarely spoke on the phone. David says that, while their contact was reduced, there was no deterioration in their relationship, although I find that evidence unconvincing in the context of the Clovelly incident in 1992 and the deceased's knowledge that David had hurt Robert, and Robert's evidence (at [120] below).
Robert deposes that in late 1992, a man called to speak to David at the Clovelly unit and left a message to tell David that "his father rang". There is a dispute on the evidence as to whether Robert was surprised by this, was angry that David had not raised his paternity with Robert and whether they had a discussion in around 2001 during which, David says, Robert was upset and said he was humiliated by the deception about David's paternity and explained that was why his attitude changed during the time he was living at Clovelly with David and Donna. I prefer Robert's evidence to David's about this matter.
Robert denies having a discussion with David in the terms deposed to by David. He gave evidence, which I accept, that he was aware from before 1992 from things he had overheard his relatives discuss that the deceased was not David's biological father, although he accepted in cross-examination that neither the deceased or Margaret had told him directly about David's (or Alison's) paternity and he believed that David was the first person to tell him directly that the deceased was not David's biological father during a drive to or from Wollongong shortly prior to leaving for London in 1999 (T222.13-223.30). Robert also gave evidence that he had raised the issue of David's paternity with Margaret after the Clovelly incident when he told her "I no longer have a step-brother" but did not raise the issue with the deceased directly, although he deposed that the deceased said to Robert a few years after his divorce that "They [David and Alison] are no longer my concern, you're my son and that's it", and also referred to Robert as his "only child" and "only son" (Robert's first affidavit at [62], [71] and [85]).
David recalls visiting the deceased in 1995 and describes the deceased telling him to "patch it up" with Robert and "Do your old man a favour", which he said he would do. He also gives evidence that between 1997 and 1999, while Robert was in England, David continued to see the deceased when he went to Wollongong. He says that he visited the deceased at his West Wollongong property on several occasions and spoke to the deceased when he was in hospital, although their contact became less frequent, with David only seeing the deceased about two times per year and maintaining some ad hoc phone contact.
As noted above, in 2003, the deceased attended the 30th birthday celebration for Donna that David arranged. David says he saw the deceased twice more after that, at the deceased's West Wollongong property, which he recalls was in 2004.

[10]

David's relationship with the deceased after 2004

It is common ground that David did not see or speak to the deceased at all after 2004.
David says that, from mid-2005 (after the receivers were called in), he had another long depressive episode and commenced treatment with a psychologist and focused on his recovery from late 2005, before returning to Thailand in 2006. He says that during this time, he maintained contact with Margaret but did not contact the deceased, and the deceased did not call or reach out to David, although David says he was aware that the deceased knew about his depression. David did not give evidence about the basis of that awareness, and I make no finding that the deceased was aware of that matter.
Glenn Drabble gives evidence that, in 2006, David told Glenn that he wished he was still in contact with the deceased but explained that he and Robert had a falling out when his business collapsed, he believed Robert was poisoning the deceased against him, and he did not think he could cope with having the door "slammed… in [his] face".
David describes his relationship with the deceased as in "suspension" after David moved to Brisbane in 2008.
Although they never had a disagreement, David says he was reluctant to call the deceased because he was concerned the deceased would take sides with Robert, that Margaret and Alison had disparaged David to the deceased and he believed that the deceased would have thought that David did not have the capacity to 'man up' to his state of mental health. David gives evidence that he felt alone, feared rejection and did not feel emotionally capable of being rejected without being allowed to explain his "side of the story".
David says that he started to think about the deceased in July 2018, around the time that Margaret's health was in decline. He gives evidence that he started to write a letter to the deceased, expressing the desire that they would get to see each other again before one of them died, but he did not finish nor send it.
David says that he was devastated when he heard that the deceased had died. As noted above, David did not attend the memorial celebration but attended at the funeral home.
Ben Mitchell gives evidence that David was concerned that he and the deceased had not spoken in years and asked for advice about how he could resurrect the relationship. He deposes that in about 2017 or 2018, Ben told David to just "knock on his door" and David replied that he was worried that he would "slam it in my face". Ben also gives evidence that he went the funeral home with David on 11 November 2019 and observed that David was visibly upset and crying.
Robert's evidence is that the deceased never spoke about David during this period. He deposes that the deceased would sometimes ask whether Robert had heard from Margaret or Alison (such as at Christmas or around Robert's birthday) but never asked about David. Robert gave evidence in cross-examination that for a period of 20 years (which I take to be the 20 years prior to the deceased's death), the deceased never mentioned David to Robert and did not ask Robert whether he had heard from David on his birthday or at Christmas, although he would enquire whether Robert had heard from his mother or Alison and, as far as Robert knew, the deceased had not spoken to David for 20 years (T272.40-45, T273.6-7).

[11]

Robert's relationship with the deceased

Robert gives evidence that he was close to both his parents growing up and that the deceased was loving, caring and compassionate to him, including in relation to his own mental health issues (as referred to at [116] above).
When Margaret and the deceased separated and Robert lived with Margaret, Robert spent every second weekend, the holidays and some afternoons with the deceased. According to Robert's affidavit, he was very upset when his parents separated and Margaret told him that it was the deceased's fault, so Robert was angry at the deceased for a few weeks. As Robert got older, he would also spend afternoons with the deceased, and preferred living with the deceased than with Margaret.
Robert deposes that he and the deceased wrote letters to each other weekly while the deceased was travelling in England and Europe in around 1985 or 1986.
Robert says that when he started work in Sydney in 1991, he visited the deceased every second weekend and they spoke on the phone at least once or twice a week. He also gives evidence that when he moved to England, he communicated with the deceased at least two to three times per week except for about 15 weeks when the deceased was hospitalised and would not accept Robert's calls, after which period they spoke nearly daily.
In 2000, after his return from England, Robert arranged a surprise function for the deceased and his co-workers.
Robert gives evidence that, in 2005, he told the deceased about David offering 25% of the profits of Eastelectric to Robert and another employee while David was overseas. He says that the deceased responded, "You should get that in writing. Mate, without that in writing I guarantee you won't see the money off him". Robert says he did not ask David to put the agreement in writing as he trusted David to pay him the share of the profits.
Robert deposes that after he married Alysha, the deceased said to Robert, "You're the last of the Browns. I'd love you to have a son so the name can carry on." He also gives evidence that before the deceased moved to the Central Coast in 2018, he would come to stay with Robert and Alysha every second or third weekend, including Easter, long weekends, Christmas and birthdays, and they had two set days, Monday and Wednesday, when he would call the deceased to have a chat.
In about 2016 or 2017, the deceased granted Robert a power of attorney in relation to his financial affairs and appointed him as his enduring guardian.
Robert's evidence is that the deceased's move to the Central Coast in 2018 was precipitated by Colin's death. He says that he and Alysha suggested that the deceased move as he was retired and had no more family in Wollongong. Robert and Alysha helped the deceased move from Wollongong, by packing, transporting, and unpacking his things. After the move to the Central Coast, the deceased would come to Robert's house for dinner once a week, drop in 2-3 times a week and Robert would visit him after work once a week. Robert also assisted by taking the deceased to his medical appointments and helping him with his online banking.
Robert described the deceased as generous with money. The deceased gave Robert $110,000 for a deposit on a property at North Avoca and mortgage insurance, sometimes lent him money, bought Robert three cars over the years, including Robert's first car when he was 16 at a cost of around $800 (T311.47-T312.1), bought a car for Alysha, was generous when it came to presents for Robert and Alysha's children and would give Robert $500 when he and Alysha were going on a holiday.
Robert gives evidence that, after the Clovelly incident, the deceased told him to "Get out of there if [David's] going to behave like that…". He also gives evidence that the deceased said to him when talking about his will, "It's mine and it will be yours, you [are] my only son." He says that from the time when he was young and living with the deceased, the deceased would say, "everything of mine when I fall off the hook is yours" and Margaret would say, "when your father passes, you'll get all of his money."
In cross-examination, Robert was asked about the deceased's will and his move to the Central Coast. Robert gave evidence that to his knowledge, the deceased did not have a previous will and he found the will when he searched the deceased's possessions (T307.33-36). Robert was asked whether he had a discussion with the deceased about the changing of his will around the time they discussed buying the house and gave evidence to the effect that the deceased brought the will up to the Central Coast, asked him to sign it and took it back to Wollongong and referred to his "witnessing signature" (which was his signature "in the margin"). Robert was pressed on whether he had a clear recollection of the event, and his evidence was that he did recall the deceased asking him to "sign it there" and they were sitting on the lounge at "Beachcomber Parade" (T309.1-4 and T309.43-48).
David's submissions refer to Robert's evidence about witnessing the deceased's will as an instance of Robert willing to lie and invent evidence as he was clearly mistaken. I accept that Robert's evidence was incorrect. His signature on the deceased's will (in the margin) relates to the annexure attestation when Robert swore his affidavit in 2021, not when the will was executed in 2018. However, I do not accept the submission that Robert was lying. Rather, I consider that Robert mistakenly conflated events, noting that his evidence in re-examination was that the documents the deceased brought to him to sign were the power of attorney and enduring guardian and he believed that he signed the will in a bundle of documents sent up by Mr Leo relating to probate (T366.19-25).

[12]

Conclusions

I accept David's evidence that the deceased stepped in and took on the paternal role to David from 1972, when David was eleven. From that time, until David moved out of the Valley Drive property in 1982, David was treated as the deceased's son and a full-time member of the Brown family, as evidenced by David's use of Brown as his surname and calling the deceased "dad" and his lack of contact with Graham.
The relationship between David and the deceased (and Margaret) likely deteriorated in January 1978 (when David was asked to leave the Valley Drive property) and David may have spent many nights out with his teenage friends and most weekends camping with them, but I am satisfied that David continued to be treated as part of the deceased's family, albeit he had more independence as he lived in the caravan and was supporting himself financially.
The regularity of David's visits to the deceased from the early 1980's through to the mid-1990's, including the deceased's attendance at David's wedding in 1989, satisfy me that David's relationship with the deceased continued after he separated from Margaret and the deceased continued to play a paternal role in David's life after 1984. That said, the totality of the evidence indicates that David's relationship with the deceased evolved over the period from the early 1990's to 2004, possibly due to the lack of contact between October 1990 and April 1992, the impact of David's mental health issues and the Clovelly incident. The fact that David did not tell the deceased about his period of depression in the early 1990's (or later periods in David's life) and the deceased did not call or reach out to him during that or later periods, is telling in my view, as it signifies that David was not as emotionally dependent on the deceased as his submissions contend (closing submissions at [378]). The deceased may have attended Donna's 30th birthday in 2003, but David's contact with the deceased was more ad hoc and sporadic between 1994 and 2004 and their relationship could not, in my view, be described as mutually close and supportive from that time, especially when compared to the extent of contact and connection between the deceased and Robert. It follows that I am not persuaded by David's submission that David's close paternal relationship with the deceased continued uninterrupted for 35 years.
I accept that the deceased's attitude towards David from early 2005 was likely adversely impacted by the deterioration in Robert's and David's relationship and the deceased may have opted to side with Robert in the context of the brothers' dispute. I also accept that David may have been reticent to contact the deceased for the reasons outlined at [126]. However, I am not persuaded by David's characterisation that the deceased apparently decided to disown David from that time. Even on David's evidence, there was little (if any) contact from the deceased to David for some years prior to 2004. The lack of any contact between David and the deceased after 2004 and Robert's evidence at [130], [137] and [141] leads me to find that the deceased did not have any real connection with David after 2004 and their relationship had likely dissolved by the time of the deceased's death.
I do not accept David's submission that he had a more mature and meaningful relationship with the deceased than with Robert (for the first 33 years of Robert's life). The conclusion I draw from the evidence is that the deceased and Robert enjoyed a close and loving father/son relationship throughout Robert's life. Despite the fact that Robert had lived in Sydney (including with Margaret) and overseas for long periods, his relationship with the deceased was characterised by regular contact, ongoing emotional support and care and assistance provided to the deceased by Robert and Alysha, particularly when the deceased moved away from Wollongong. To my mind, it also does not follow that the provision of financial assistance to Robert during the deceased's lifetime made David, in comparison to Robert, a good son who was able to fully reciprocate in a mature adult way up until 2004 (closing submissions at [375]).

[13]

David's relationship with Graham

David gives evidence that, shortly after the wedding of Margaret and the deceased, he was told that Graham had moved to the United States of America with his new wife and was relieved as this meant he would not have to see him again. He says that he later found out that Graham had moved to Western Australia and then to Canberra and describes the reference to a move to the USA as a "fiction" that was perpetuated by Margaret and the deceased.
David says that he has seen Graham about eight times and spoken to him by telephone on about three or four other occasions. One of those occasions was in 1982, after he moved out of the Valley Drive property when David made contact and visited Graham in Canberra, having received his phone number from a cousin. David deposes that within an hour of being with Graham, his curiosity was satisfied, it was clear to David that Graham had no interest in him, David did not have any interest in Graham, and that it felt like a meeting of strangers and "very odd". David describes telling Margaret about the visit and being told by her that she hoped the deceased never found out.
In a letter that David wrote in April 2006 in anticipation of seeing a psychiatrist, Dr Daniel Gibson (Ex 101), David refers to meeting Graham and keeping in touch with him. David refers to Graham as his "father" and the deceased as his "stepfather". He describes Graham as someone who "has an amazing capacity to turn his hand to anything", that meeting Graham gave David "a self-confidence" and reminded him he was "my father's son", they kept in touch until "he started going back to his religious phases", Graham would make contact with David and David would go and visit him (Graham did not visit David), and David once asked why Graham stopped the contact visits and was told that if Graham couldn't have "all of" David, he "didn't want anything". In addition to noting his mother remarrying, there is only one reference to the deceased in the letter, in the context of what the deceased would say in response to suicide, as a "bloody coward's way out".
When cross-examined about the letter, David accepted that he had described reconnecting with his father, "Mr Truswell", which was the first time seeing "his father" in 10 or 11 years (T136.30-32). He sought to explain the absence of any commentary about the loss of his relationship with the deceased on the basis that the letter was not written to provide the psychiatrist with information to understand what he was struggling with at the time but was just "the things [he] was thinking and themes" (T134.1-4), he had not lost the relationship with the deceased (T138.22-24) and he had not written about feeling scared that the deceased would reject him because it was not "a letter to explain current relationships" but was prepared "to explain all of the daggers that [he felt].. all the points of [his] pain" (T139.5-10).
Robert submits that the contents of David's letter to Dr Gibson undermines his credibility having regard to his affidavit evidence that downplays the importance of Graham in his life and suggests an indifference upon meeting him as a young adult. I agree. In comparison to David's affidavit evidence (described at [105], [149] and [150] above), the letter paints a quite different picture of how David felt about Graham and his description of his meeting with Graham.
I accept that the deceased may have taken on the paternal role to David in Graham's absence. However, Graham was a constant presence in David's life until the age of 11 and maintained some contact with David after 1982. In my view, the evidence overall does not demonstrate that the deceased's relationship with David from 1971 completely extinguished the paternal bond between David and Graham.

[15]

Current employment and financial position

David describes himself as self-employed as a building caretaker. As outlined above, between 2007 and 2017, he was employed in a variety of facilities management related roles.
David is currently the sole director and shareholder of Unitrade and UFM Realty Pty Ltd (UFM Realty) and the sole beneficiary of the David Brown Family Trust (DBFT).
Unitrade, as trustee for the DBFT, holds the management and letting rights in relation to a residential apartment building located in Teneriffe, Queensland pursuant to a Caretaking Agreement dated 25 March 2020 (Ex 17) and a Letting Agreement also dated 25 March 2020 (Ex 18) (the Agreements). The Agreements commenced on 1 April 2020 and are for an initial ten-year term. They provide for annual caretaking remuneration of $108,874.71 (increased annually by CPI), with commissions and charges for letting services to be negotiated with the owners of the apartments. UFM Realty, which was incorporated on 5 May 2020, is the entity that manages the letting rights held by DBFT.
David says that the legacy of his injuries from his accident in 2013 prevents him from sustaining the physical work required under the Caretaking Agreement. He deposes that he engages a contract cleaner on a part-time basis as well as a permanent part-time assistant, which he says reduces the caretaker salary to about $75,000 per annum, from which he pays other business costs and his own wages.
David's affidavit evidence refers to an annual net salary of approximately $24,900, receiving about $20 per month in interest from funds he has invested, fortnightly expenses of $1,365 (excluding credit card payments) and assets, which he valued at $282,213.85 as at 8 February 2021, and at $178,139.69 as at 13 December 2021, comprising the following: Asset description Value 2007 Nissan Tiida sedan $1,500 2013 Honda Forza $2,000 ANZ Access Advantage account $1,065.04 Bank account with ANZ $9,956.65 Bank account with Macquarie Bank $15,300 Furniture and other personal items $7,000 Shares in A2 Milk Company (as at 9.12.2021) $67,278 Shares in Northern star (as at 9.12.2021) $74,040 TOTAL $178,139.69

[16]

David does not have any superannuation, having withdrawn all his superannuation of $122,387.09 to pay down the mortgage of the Bulimba property that he sold in May 2018.
The reduction in David's asset position from February 2020 to December 2021 is said to be due to several additional expenses and financial liabilities (primarily legal and medical expenses and also relating to the new business venture) and losses incurred on the share market. He submits that his investments in shares were made on the advice of a stockbroker and that he has acted in a financially responsible way. In hindsight, David's decision to continue to invest in shares (albeit on the advice of his stockbroker) might be categorised as "well-intentioned, but improvident, investment decisions" given the reduction in his asset position and the impact on his claimed needs. That decision it is a factual matter that, together with David's other circumstances, can be taken into account in the context of the available estate and a consideration of the effect on Robert's competing claim: Bates v Cooke [2015] NSWCA 278 at [1], [3], [68]; Sgro v Thompson [2017] NSWCA 326 at [40], [93], [94] (Sgro v Thompson).
David disclosed no liabilities apart from a credit card debt of $1,827.53 and legal costs (owing to DL Legal of $25,871 and counsel of $28,750). He deposes that he has not sold any property or gifted amounts of $1,000 or more but has provided financial assistance to his former stepson of about $7,000 per year.
David's second affidavit and his submissions address the value of Unitrade's management rights under the Agreements and whether he would be able to sell them as an asset. He gives evidence that, in normal circumstances, they could be valued at more than $500,000 but due to increased costs and the terms of the contract (which, amongst other things, prohibit him from selling or assigning the rights until 1 April 2025 (cl 8.9) and require any assignee to have certain qualifications and language skills), they would be very difficult to sell and the most he could hope to realise would be between $280,000 to $315,000 (David's second affidavit at [20] and [28]-[29]).
David submits, and I accept, that the terms of the Agreements place limits on his capacity to assign the rights prior to 2025 and it is difficult to predict what, if any, value he could realise after 2025, noting that the value would likely be determined as a multiple of the net operating profit. This is particularly as Unitrade's most recent profit and loss statement, for the period 1 July 2020 to 30 June 2021 (Ex 49), discloses an overall loss after tax of $5,415, based on a gross profit of $105,082 and expenses of $110,503 (of which $53,476 was for salaries and wages, $12,238 for contactor payment and $3,414 for rent), the most recent UFM Realty profit and loss statement for the period 1/07/2021 to 3/1/2022 (Ex 91) discloses net earnings of $12,881.11 and the previous financial year disclosed nil sales and a loss of $90 (Ex 49), and David's evidence is that he was making a loss on the "management contract" and had to inject $30,000 of his personal savings to keep the business afloat.
While there is force to David's contention in his closing submissions that the current market value of the management rights is nil (at [233]), the conclusions I have come to on the evidence and submissions are as follows: the Agreements will provide David with an income source for some years; based on the contract limitations, David is currently unable to sell or assign the rights under the Agreements to a potential purchaser for value; and having regard to David's own estimate of value (as referred to at [164]), David may be able to realise some value (of no more than $280,000) from selling or assigning the rights after 2025.
At the hearing, David was cross-examined about his income and expenses, and Robert's submissions challenge the adequacy of David's disclosure about his financial position (Robert's closing submissions at [58] - [70]). Robert submits that the inconsistencies and failures to provide full and frank disclosure in David's evidence of his financial circumstances means that the Court could not make any reliable conclusion as to his financial means and would be unable to conclude whether adequate provision had been made.
I accept that there were issues with the evidence adduced by David about his financial circumstances. It became apparent during cross-examination that aspects of his affidavit evidence were lacking detail and inconsistent with documents that had been produced in response to subpoenas and notices to produce.
Dealing first with David's income, as noted above, David deposed to earning a net annual salary of $24,900 plus $20 per month in interest and also said that his only source of income is the maintenance contract/rights relating to Unitrade. In my view, this evidence does not give an accurate picture of David's financial position in terms of his actual and potential income.
David's affidavit evidence as to his income was inconsistent with his personal tax return for the financial year ending 30 June 2021, which demonstrates that David had taxable income of $80,085, made up of ordinary income of $34,366, interest and dividends of $3,438 and a capital gain of $43,021 from Australian shares (Ex 75). His tax return for the previous financial year disclosed slightly lower ordinary income (of $30,601) and a lower capital gain from Australian shares, but higher interest and dividends (Ex 77).
David's affidavit evidence about his income is also inconsistent with the income estimate in a Personal Statement of Financial Position he completed on 20 May 2020 for a loan with the ANZ Bank (Ex 39), which disclosed earnings of $5,500 gross per month and $4,631 net per month (the equivalent of $66,000/$55,572 per year). While David gave evidence in cross-examination that the loan application was prepared for his lender agent and not submitted to the bank, his explanation that they were "speculative figures" (T182.32) was not convincing in the context of the figures contained in his tax returns, noting also that the application form David signed included an acknowledgment to the effect that the information was true and correct.
David's affidavit evidence did not clearly distinguish between Unitrade and UFM Realty, referring to them making a modest $4,000 profit in the 2019/2020 financial year but requiring $20,000 of contribution from personal savings, and failed to disclose the future earnings and profits of UFM Realty (referred to at [165] above) as a potential source of income for David, as the sole shareholder of UFM Realty and sole beneficiary of the DBFT. The fact that UFM Realty is a relatively new enterprise and may be subject to further statutory expenses (that were not disclosed by David's evidence) does not, to my mind, adequately respond to the criticism that David's disclosure in his affidavits was lacking in this respect.
There were also inconsistencies in the evidence David gave regarding his expenses. According to David's affidavit dated 13 December 2021, his fortnightly expenditure of $1,365 included $650 for rent (in his first affidavit, he referred to rent in the amount of $750 per fortnight), with David stating that his rent was slightly higher because of the market for rental properties and two of his flatmates were people working for him helping to maintain the property who receive "free accommodation in exchange for work". In cross-examination, David gave evidence that he paid $600 in rent per fortnight and received $500 per fortnight from his flatmates in cash in contribution to rent from which he paid expenses and $400 per fortnight in rent from Unitrade (T161.14-15, T162.6-18). Even accepting that David may have been mistaken in his affidavits and in cross-examination as to how much rent he paid each fortnight (the bank statements in evidence suggest that David pays around $600 per week for rent, see for example, Ex 34), his affidavit evidence was inaccurate when it referred to his flatmates receiving free accommodation. It also failed to disclose David's receipt of $900 per week funds from his flatmates and Unitrade.
Robert's submits that David also failed to disclose any assets held overseas, referring to his evidence in cross-examination of transfers of money to a Thai bank account in his name from July 2019 (T177.5-9) which, according to exhibits 94 and 95, were transfers of around $77,461.00.
It is incumbent on an applicant for provision to disclose to the Court as fully and frankly as possible all details of their financial and material circumstances: Cringle v Cringle [2018] NSWSC 1558 at [35] and the cases there cited; Stone v Stone [2019] NSWSC 233 at [60]. A Court may dismiss an application if the inadequacy of disclosure is such that a claimant fails to satisfactorily prove a crucial element of their financial situation, such as income and expenditure: Collings v Vakas [2006] NSWSC 393 at [67] cited in Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [29] (Blendell v Blendell).
In my view, the matters referred to at [166] - [172] make clear that David's disclosure in his affidavit evidence was not satisfactory as it did not enable the Court to have a clear and accurate understanding of his financial position and that of his companies.
Nevertheless, I have concluded that, overall, the evidence before the Court provides a sufficiently broad picture of David's income, expenses, assets and liabilities to understand his current financial position, how it has changed over time and his future means. Relevantly, even if I were to assume that David is entitled to receive a distribution of UFM Realty's net profits of $24,000 (calculated as the net profits for the most recent period on an annualised basis), he could expect an income of around $60,000 per year (based on his ordinary income, interest and dividend payments from his last tax return), and the consequence of the expense issue was that David likely overstated his expenses by around 22% ($300 per fortnight). It would follow that David's current (and expected) income should cover his usual expenses. Although it would likely be insufficient for David to generate significant savings, his income and asset position (including the potential to realise some value from a future sale of the management rights) indicate that David is not facing poverty in his retirement years, as his submissions contend (closing submissions at [362]).
As to the existence of his overseas bank account and transfers of money out of the country over the past three years, they are matters about which disclosure should ordinarily be made. However, in view of David's evidence in re-examination that his Thai bank account holds the equivalent of $500 (T398.15-16) and the funds transferred related to his living expenses and a visit by Margaret, I am not persuaded that the absence of disclosure in this respect was material to David's case.

[17]

Health

In his 2013 accident, David suffered a fractured LS acetabulum, tibia plateau, patella and other fractures in his lower body. He gives evidence that he now suffers from early onset osteo-arthritis in the left knee, left hand and left foot, which limits the amount of physical work he can perform. David also gives evidence that he has had ongoing mental health issues since he was a child and has been treated for anxiety and depression for many years, and more recently for Attention Deficit/Activity Disorder (ADHD).
David's medical health history is set out in a report from Dr Andrew Byth, dated 17 May 2021 (annexure B to David's affidavit sworn 24 January 2022). Dr Byth is a psychiatrist located in Brisbane. His report was admitted into evidence after an initial objection in relation to compliance with the expert code of conduct was not pressed (T112.17-20) and further documents were tendered at the hearing which provided details regarding the Psychiatric Impairment Rating Scale (PIRS) referred to in the report (T125.47-T126.1). Robert did not require Dr Byth for cross-examination nor adduce any competing expert evidence.
Dr Byth prepared his report from a meeting and assessment of David in person and a review of documents that included David's affidavit sworn 8 February 2021 in these proceedings, reports from Dr Daniel Gibson (a psychiatrist who David saw as an outpatient between 2006 and 2009, and was in irregular email contact with David after that time), and records from Dr Parkar, Dr Tran, Mr Gerhard Venter, Royal Randwick Hospital and Prince of Wales Hospital.
Dr Byth's report records that as a child, David attended counselling with a child psychiatrist for treatment of anxiety and depression, David was admitted to Wollongong Hospital following the breakdown of his marriage, he recalled being told that he might suffer from Bipolar Affective Disorder, he attended Jungian Psychotherapy and saw psychologists and psychiatrists who diagnosed him with Major Depression against a background of Dysthymic Disorder (chronic fluctuating mild to moderate depression), ADHD and Rejection Sensitive Dysphoria (RSD), was prescribed antidepressants, mood stabilisers and Ritalin and he was diagnosed with possible alcohol dependence by his general practitioner in 2010. Dr Byth records that as at mid-2021, David was seeing a psychologist on a fortnightly basis and a psychiatrist every three months, had ceased taking antidepressants and mood stabilisers and was taking Ritalin daily.
Dr Byth's report refers to David dating his psychological problems back to when "his parents separated when he was aged 6-7 years", to acrimony between Margaret and his "biological father", to Margaret remarrying, to him relating "better to [his] new stepfather, whom [he] came to call… Dad", and that, in his thirties, after years of serious depression, he had a falling out with Robert. It also records David reporting that he believed Robert was poisoning the deceased against him, he did not know how to approach the deceased, David had "lost contact with [his] father", Robert "wouldn't let [him] contact Dad" and that David had started writing a letter to the deceased hoping that they would be in contact, but the letter was left unfinished. The history recorded in Dr Byth's report is reflected in the evidence given by David in his affidavits.
Dr Byth's main diagnosis of David is of Dysthymic Disorder (chronic fluctuating mild to moderate depression), a lifelong condition, with past episodes of Major Depression in his thirties to forties. Dr Byth's report states that David complains of symptoms of ADHD and probably warrants a diagnosis of ADHD. Dr Byth found evidence of long-standing Alcohol Use Disorder and found that David had sensitive, dependant and obsessive-compulsive personality traits, and possible personality disorder, as reflected in David's description of lifelong self-criticism, fear of abandonment, hypersensitivity to rejection and fluctuating self-esteem. Dr Byth did not diagnose Rejection Sensitivity Dysphoria (as the condition is not mentioned in DSM-5) but thought that David's hypersensitivity to rejection was understandable given his traumatic and prejudicial relationships with his biological mother and father and ambivalent relationships with his biological sister and stepbrother over many years. His report states that he believes that David would have been understandably reluctant to initiate contact with the deceased over many years because of his intense fear of rejection, which was amplified by his sensitive personality type and his problems with Dysthymic Disorder, which would have made him avoidant of contacting the deceased at times, fearing he would be let down again or admonished or abandoned by a parental figure in his life.
Dr Byth opines that David's fear of rejection, coupled with his Dysthymic Disorder and substance abuse, would have had a moderate to marked negative impact on his capacity to earn income throughout his earlier life to present and into the foreseeable future, and the quality of his effectiveness at work would be moderately to markedly impaired by his ongoing psychological problems.
Dr Byth also considered David using PIRS and assessed his level of whole person impairment to be 28%. Amongst other things, Dr Byth rated David as being moderately impaired in relation to concentration, persistence, pace and adaption and severely impaired in relation to social and recreational activities and social functioning. In relation to adaption, Dr Byth elaborated that David complained of being very inefficient at work because of anxiety and depressed moods which causes him to forget jobs, worries that people are avoiding him because he looks negative at work and feels that he cannot cope with working more than 3-4 hours per day.
Dr Byth recommends that David continue to receive specialist psychiatric treatment over the next 3 to 5 years, probably continuing indefinitely and should be offered trials of other antidepressant medication, and states there is a risk of further hospitalisation. He estimates the total costs of his outpatient treatment and medication over the next 3 to 5 years to be $9,000 to $15,000 and the cost of hospitalisation and associated treatment over the next 5 years to be $21,900.
Robert accepts that David has had mental health issues over the years and has been diagnosed as having a dysthymic disorder. However, he submits that the Court is entitled to examine Dr Byth's evidence against all the evidence and is not bound to accept it all, notwithstanding he did not call his own expert witness or cross-examine Dr Byth (which Robert says would have extended the length of the hearing and caused further legal costs to be incurred disproportionately to the size of the estate). Reference was made to Walker v Police [1998] SASC 6717 (Walker v Police), a case considering the weight of expert evidence not contradicted by another expert witness where Mullighan J held that a tribunal of fact is not bound to accept that evidence, stating that: "The fact that the evidence of an expert witness is not contradicted by the evidence of another expert witness does not mean that the evidence must be accepted. Like any type of evidence, expert testimony must be considered along with all of the other evidence in the case. …. In my view the decision of the prosecutor not to seek to adduce evidence in rebuttal contrary to the opinions of Dr McLeave is of no significance in the present circumstances. The prosecutor was entitled to have the evidence of Dr McLeave assessed in the context of all of the other evidence. The failure to contradict his evidence in cross-examination or by other expert evidence could not give it a probative value beyond its true worth."
Mullighan J's comments in Walker v Police were cited with approval by Ward J (as Her Honour then was) in A v N [2012] NSWSC 354 at [422] and [424], a case where Her Honour also observed, at [417], that "the authorities clearly stand for the proposition that a trial judge is not bound to accept evidence that is not cross-examined, although that evidence may be given more weight".
In light of these authorities, I do not accept David's submission that Dr Byth's evidence is uncontroverted, cannot be impugned and must be accepted by the court (closing submissions at [61] and [70]). On the other hand, I am not persuaded I should reject it in the absence of any submission from Robert regarding Dr Byth's report as a whole or particular aspects of it and having considered it with the other evidence regarding David's medical history (see for example, Dr Gibson's letters dated 1 May 2006 (Ex 11) and 20 January 2011 (Ex 89)). I am satisfied that Dr Byth's report should be accepted as evidence of weight regarding David's mental health history, his diagnosis of Dysthymic Disorder (a lifetime condition) and that David will likely need ongoing treatment and incur a certain level of associated cost.
Nevertheless, I have reservations about those parts of Dr Byth's report that assesses David as moderately to markedly impaired in relation to his work and at 28% on the PIRS scale (as described at [185] and [186] above) and his opinion that David's failure to contact the deceased after 2004 is understandable due to his fear of rejection. In my view, those opinions are adversely impacted and weakened by the fact that they are based, in large part, on David's self-reporting to Dr Byth in the context of these proceedings and the following: 1. the contents of David's LinkedIn work references and recommendations for the years 2012 to 2016 which refer to, amongst other things, that David "embraces change", "does not shy away from conflict", has "great leadership skills", "can execute and complete projects and tasks...with complete commitment in all respects", is "entrepreneurial" and an "extremely focussed individual who can cut through to the core of a situation" (Ex 97); 2. David's evidence in cross-examination that he "transformed the [Teneriffe] building", which he described as having been in neglect for ten years under the previous manager (T185.26-27); 3. statements made by David to Dr Gibson in an email sent on 11 January 2021 that he was "glad to say I'm well too. Depression seems to be so far away now", he "can feel anxiety rising but it's a different thing these days, it doesn't seem to take hold", he had "rebuilt financially and "retired" to Thailand" and was "back in business in Australia" although "Thailand will eventually be home" (Ex 89); 4. David's affidavit evidence, which referred to his physical injuries (not his mental health) as limiting his ability to work (David's first affidavit at [348] and [351]); 5. statements made by David in an email to Dr Gibson on 21 January 2021 to the effect that David's barrister had asked David if he had ever been diagnosed with ADHD and, if so, whether there was also a diagnosis of RSD (as a comorbidity to ADHD) as such a diagnosis may be relevant to his legal dispute, and David advised Dr Gibson that he had done a self-assessment for RSD at the request of his barrister and scored 52/60 which, although David tried to be objective, he admitted "it wasn't hard to game the test" (Ex 89); 6. David's evidence in cross-examination when he was taken to the 11 January 2021 email to Dr Gibson in cross-examination, that "it was true" that he felt what he expressed in the email, he "had been depressed for at least the last year" but "At that time, I felt normal. I felt okay" and he could quite often manage his anxiety (T140.7-T141.25); and 7. David's sensitivity to rejection and feelings that he has been ostracised by his family did not prevent him from reaching out to Graham in 1982 and Robert in 2009 or maintaining contact with Margaret and Alison (see further at [195] below).
To my mind, these matters undermine Dr Byth's opinions as, taken together, they suggest that David's mental health has not markedly impaired his capacity to work for some years, David's self-reporting to Dr Byth somewhat overplayed matters and was influenced by his knowledge of RSD and likely led to Dr Byth's identification of a fear of rejection as a potential rationale for David's lack of contact with the deceased. The conclusion that I have come to is that little weight can be placed on those parts of Dr Byth's report. It follows that I do not accept David's submission that his disabilities (assessed on the PIRS scale) significantly limit his employment prospects in the future or that it is entirely understandable that David was unable to reach out and maintain any relationship with the deceased for the last 14 years of his life.

[21]

Robert deposes that the net proceeds that he and Alysha received in December 2018 after selling their house in North Avoca (approximately $230,000) was reduced to approximately $115,000 (by 1 March 2021) due to living expenses and, by 8 December 2021, their savings were further reduced (to $46,002.17) as they had to live off savings while Robert was out of work between 9 June and 21 July 2021.
At the hearing, Robert was challenged on his spending habits. He was taken to statements of bank accounts and credit cards and cross-examined about various transactions, including transfers amongst accounts.
Robert accepted in cross-examination that his affidavit evidence did not account for all his expenses (such as on alcohol and entertainment), which on some bank statements added up to $1,300 per month (T346.38-45). He explained that his estimates were based on an average of how much they would allocate to spend (rather than actual expenditure) (T352.1-4). I accept David's submission that this demonstrates that Robert's affidavit evidence about his and Alysha's expenses was unreliable, although the consequence is that Robert's expenses were understated and they are likely living beyond their current monthly means.
The evidence may also have demonstrated that Robert and his family have multiple bank accounts and made many related account transactions and transfers between accounts. However, I do not consider that this, of itself, raises some irregularity or requires some justification, as David's submissions seem to suggest (closing submissions at [313]).
Robert's financial position has been improved by funds he received from the deceased over the years, such as the deposit for his first house, to which I have referred at [140] above. However, I do not accept David's submission that the deceased's largesse tends to suggest that the deceased had concerns about Robert's ability to manage his own money and was concerned about his drinking (closing submissions at [309]) and have concluded that the financial assistance likely reflected a desire by a generous father to assist his son and family, consistent with the expression of wishes about which Robert gave evidence, as described at [140]-[141].

[23]

David's eligibility to apply for a provision order

The Court may only make an order for provision if it is satisfied that the person in whose favour the order is to be made is an eligible person: Succession Act, s 59(1)(a).
Section 57 of the Succession Act defines "eligible person", relevantly, as follows: 57 Eligible persons: 57 (1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person - … (c) a child of the deceased person; … (e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who … was at that particular time or at any other time, a member of the household of which the deceased
Section 57(2) of the Succession Act provides: (2) In this section, a reference to a child of a deceased person includes, if the deceased person was in a de facto relationship, or a domestic relationship within the meaning of the Property (Relationships) Act 1984, at the time of death, a reference to the following - (a) a child born as a result of sexual relations between the parties to the relationship, (b) a child adopted by both parties, (c) in the case of a de facto relationship between a man and a woman, a child of the woman of whom the man is the father or of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father (except where the presumption is rebutted), (d) in the case of a de facto relationship between 2 women, a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996, (e) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998).
David's primary contention is that he is an eligible person as a "child" of the deceased for the purposes of s 57(1)(c) of the Succession Act and does not need to establish there are factors which warrant the making of the application in accordance with s 59(1)(b) of the Succession Act. He also says that he is an eligible person under s 57(1)(e) and there are factors that warranting his application.
Robert denies that David is a child of the deceased under s 57(1)(c) of the Succession Act. However, he concedes that David is eligible to make an application under s 57(1)(e) as an ex-stepchild of the deceased who was partly dependent on the deceased and a member of the household of which the deceased was a member from 1973 to 1981, except for a short break in 1978.
Robert's concession that David is an eligible person under s 57(1)(e) of the Succession Act was appropriately made. The evidence at [28]-[30] and [104]-[108] establishes that David was dependent on the deceased (and Margaret) for accommodation, food, clothing, and emotional support between the ages of 11 to 16, was partially dependent on the deceased from mid-1978 to 1982 (noting that he paid board and supported himself financially during that period) and was a member of the same household as the deceased throughout that time.
I also accept Robert's submission that David is not an eligible person as a child of the deceased within the meaning of s 57(1)(c) of the Succession Act and, as a result, David must establish there are factors that warrant the making of his application: Succession Act, s 59(1)(b).
In relation to his claim to be a child of the deceased, David's submissions noted that in all Australian jurisdictions except NSW, stepchildren are expressly permitted to apply for a family provision order under relevant legislation and the Succession Act does not provide for an expansive or exhaustive definition of the word "child" (referring ss 3(2) and 57(2) of the Succession Act). He submitted that the meaning of the word "child" has evolved over time, from originally only referring to the full biological child of a legally married heterosexual couple. He submitted that the description "children" in its ordinary sense refers to natural children but the word "child" in the Succession Act can be construed as extending to stepchildren if the context and circumstances (based on admissible evidence) show this is the preferable interpretation, which he says it does in this case.
David placed reliance on Harris v Ashdown (1985) 3 NSWLR 193, a case in which Kirby P (as his Honour then was) (at 199-200) referred to changes in community attitudes and the construction of words such as "child" and "children", and Estate of Wright [2016] NSWSC 1779 (Estate of Wright), a case where Kunc J stated (at [28]): Notwithstanding adherence to what might be seen as the traditional meaning of the word "children", the Court has no doubt that in today's society in particular cases its meaning readily extends to stepchildren. As Davies AJ pointed out, that result may be brought about "when legislation so requires or when the terms of the will or evidence show that there is a reason for doing so".
David's submissions assert that various cases involving Chapter 2 of the Succession Act gives the Court a solid basis to find that David was a child of the deceased for the purposes of s 57(1)(c) of the Succession Act, although he did not identify the cases on which he relied. David contends that it would be contrary to community standards if he was not considered to be a child of the deceased (for the purposes of s 57(1)(c) of the Succession Act) in what he said are his "unique and judicially unprecedented circumstances". Those circumstances being that the deceased effectively adopted David by raising him as his own son for 35 years, and their relationship going well beyond that of an ordinary stepchild in a modern blended family. As was put in David's written submissions, "there is no evidence that David has access to prove that he was legally adopted but for all intents and purposes the deceased was his father after the age of 10".
David submits that all words change their meaning over time, as community standards and evolving usage have an impact on language, and the history of relevant precedent shows a clear trend towards a broader and more expansive interpretation of the word "child" that reflects progressive changes in society. He takes issue with Robert's submissions, which refer to David as an "ex-stepchild" and submits that the Court should reject such a regressive interpretation of the "defined term" within the Succession Act to exclude him as a "child" of the deceased in this case.
Even accepting that David was treated as a son by the deceased (at least for a period), the deceased did not adopt David and he does not fall within the other categories of "child" in s 57(2), and no submission was advanced that he did. The definition of child of the deceased in s 57(2) of the Succession Act (and child in s 3(2)) may be non-exhaustive but I do not accept David's submission that it is open to construe s 57(1)(c) as extending to stepchildren, particularly where the birth parent is no longer married to the deceased at the time of death, as is the circumstances of this case.
The ordinary meaning of step, in the context of a family, is a relationship based on marriage, in this case the marriage of Margaret and the deceased in 1972 which resulted in David becoming the stepson of the deceased. While familial-type ties between David and the deceased may have continued after the divorce, there is an open question (which I do not need to determine) as to whether the relationship of stepson and stepfather ended on the deceased's divorce from Margaret in 1991. As Robert's submissions noted, there is a large body of case law referred to in Trembath v Trembath [2017] VSC 369 at [29] - [50] which suggests that, at common law, the divorce of the natural parent and stepparent terminates the step relationship. The definition of stepchild in s 40A of the Succession Act 1981 (Qld) is consistent with that approach (it provides that the relationship of stepchild and stepparent stops on the divorce of the deceased person and the stepchild's parent: Succession Act 1981 (Qld), s 40A(2)) as is the approach of the SCT, as referred to at [89] above.
The Succession Act does not include a definition of stepchild, a specific category of eligibility for stepchildren or stepchild in the definition of child. The fact that the New South Wales legislature chose to omit any reference to stepchildren in the Succession Act and not follow the comparative legislation in other Australian States and Territories (which have a distinct category that gives a stepchild standing to bring a family provision claim [8] ) militates against the construction advanced by David that he (the deceased's stepson) is a "child" of the deceased within the meaning of s 57(1)(c) of the Succession Act, as Robert submits. In my view, if it was intended that a stepchild was to be included as an eligible person as a child of a deceased or a separate category, it is to be expected that the statute would include words to that effect.
David's submissions assert that there are indications in the explanatory memorandum and second reading speeches that s 57(1)(c) of the Succession Act has been amended to reflect modern community expectations in relation to stepchildren, although he did not identify the parts of the materials which he claims indicate that matter. In any event, I disagree with the proposition. In my view, the materials do not support David's view. For example, when s 57 of the Succession Act was inserted by the Succession Amendment (Family Provision) Act 2008 (NSW), Sch 1, [10], there was a specific note that stated that stepchildren are not children of a domestic relationship. In the second reading speech for the Bill to that Act, the Attorney General outlined that the Bill "retains the approach taken [to eligibility to make a family provision claims] in the current [Succession] Act" except that those who were "living in a "domestic relationship" with the deceased are automatically entitled to eligibility". The later amendments in 2010 and 2018 did not relevantly change the eligibility of stepchildren. Relevantly, and in the context of the 2018 amendments, the NSW Department of Justice published the Statutory Review of the Succession Act 2006 which also recommended against changing the eligibility of stepchildren, stating at [2.60]-[2.67]: "Under the Succession Act, a stepchild may be able to make a family provision claim if he or she was: at any particular time dependent on, and a member of the household of, the deceased person; or in a close personal relationship with the deceased person at the time of death. … Several other Australian jurisdictions provide that stepchildren may make a family provision claim on a deceased person's estate. … There are arguments in favour of including stepchildren in the list of eligible people to make a family provision claim, in situations of those stepchildren whose parent's property passed by will, or on intestacy, to the deceased person (i.e. the step-parent). However, as noted above, there is also considerable community concern about broad family provision law for adult children. We do not recommend making further change at this time."
The weight of the New South Wales judicial authority is also against David's construction, with this Court consistently treating stepchild applicants as a potentially eligible person under the s 57(1)(e) category and not under s 57(1)(c) of the Succession Act: see for example, Cooper v Atkin [2020] NSWSC 828 (leave to appeal refused in Cooper v Atkin [2021] NSWCA 82); Haertsch v Whiteway [2020] NSWCA 133 at [73]; Re Estate Whiteway [2019] NSWSC 266 at [2] and [60]; Harris v Harris [2018] NSWCA 334 at [34]; Spata v Tumino [2018] NSWCA 17 at [97] (Spata v Tumino); Re Estate Grant, deceased [2018] NSWSC 1031 at [27] and [59]; McCarthy v McCarthy [2010] NSWCA 103 at [3] and [15]; Diver v Neal [2009] NSWCA 54 at [5]-[6]; Graziani v Graziani (Supreme Court (NSW), Cohen J, 20 February 1987, unrep) at [14] (Graziani v Graziani).
In my view, the cases relied on by David (at [218] above]) do not assist in the interpretation of ss 57(1) and 57(2) of the Succession Act as they involved claims relating to the proper interpretation of a will rather than a statute. The principles of construction of a will are different to those that apply to statutory construction, with wills construed on a case-by-case basis, by reference to the testator's intentions and individual circumstances. I also accept Robert's submission that ss 57(1)(c) or 57(2) of the Succession Act do not provide the Court with discretion in deciding who is a "child of the deceased person" in each individual case, as David's submissions suggest.
Contemporary society, statutes and cases may have recognised that the concept of "child" can extend beyond the original legal meaning of children by blood (and of a man and a woman). However, in my view, the ordinary and natural meaning of "child" has not yet evolved to always, and necessarily, include a stepchild: see also, Mallitt v Gow [2022] NSWSC 1012 at [159] and Estate of Wright at [27].
Finally, I am not persuaded by David's submission that his case is so unique and unprecedented that the Court should consider him to be a child of the deceased for the purposes of eligibility under the Succession Act. To my mind, all the cases in this jurisdiction involve circumstances that might be characterised as unique to a family and often concern complex and nuanced relationships, including in relation to stepchildren.

[24]

Are there factors that warrant David's application?

As David is an eligible person by reason of s 57(1)(e), the Court must next consider if it is satisfied that, having regard to all the circumstances, there are factors that warrant the making of David's application: Succession Act, s 59(1)(b).
The Succession Act does not specify what factors will warrant the making of an application. They have been described as those additional circumstances which give an applicant the status of someone who would generally be regarded as a natural object of testamentary recognition by the deceased: Re Fulop Deceased (1987) 8 NSWLR 679 at 681; Cooper v Atkin [2020] NSWSC 828 at [150]-[151].
An applicant who is an eligible person under s 57(1)(e) of the Succession Act needs to establish the existence of such factors as, unlike lawful and de facto spouses and children who fall within ss 57(1)(a) - (c) of the Succession Act, they are not generally regarded as a natural object of testamentary recognition by a deceased: Yee v Yee [2017] NSWCA 305 at [111]-[112].
In Cooper v Atkin [2020] NSWSC 828, a case involving a claim by an adult stepchild, Hallen J (at [152]) paraphrased propositions from Lodin v Lodin [2017] NSWCA 32 (at [126] - [129]), which both parties referred to in their submissions and I respectfully adopt, in the following terms: "(a) Care must be taken not to impose rigid constraints on the circumstances that might constitute factors which warrant the applicant making an application for family provision from the estate. (b) The factors must demonstrate that the deceased had a social, domestic or moral obligation to make testamentary provision for the applicant. (c) The position is unlikely to be different even if the estate is relatively large. Something more is ordinarily needed for the claimant to show that he or she was a natural object of testamentary recognition. (d) What more a claimant must show cannot be defined with precision since all the circumstances have to be taken into account. Some cases may be comparatively straightforward. (e) A significant matter is likely to be the nature of the relationship between the claimant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a moral obligation on the deceased to make testamentary provision for the claimant."
David's submissions contend that the overarching features of his relationship with the deceased cumulatively operated to create a social, domestic, or moral obligation on the deceased to make testamentary provision for him. This is because, he submits, the deceased effectively adopted David by treating David as a son and a full part of the deceased's immediate and extended family. He submits that the fulsome paternal relationship between he and the deceased continued for 35 years.
David's submissions place particular reliance on Graziani v Graziani , where Cohen J said: "The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild or perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally. If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application. The presence of only some of these factors, or of others which have not been listed, might also justify the Court's coming to the same opinion. The potential for inclusion in that part of the definition of 'eligible person' as is contained in par (d) is enormous. The range of persons who may be admitted is very great and it includes not only stepchildren but also parents, brothers and sisters, temporary foster children and many others who may have formed part of the household and for a period have been partly dependent upon the deceased. Accordingly it seems to me that those who were raised as part of the family as stepchildren would have less difficulty in establishing factors which warrant their application than would those at the other end of the spectrum who may have been members of the family for only a brief period and with only limited dependence."
David's submissions refer to three other factors which he also says warrants the making of his application.
The first is what he describes as the extinguishment of his identity and any paternal relationship with Graham and the deceased's full assumption of that role in David's life. David refers to his "involuntary cessation of contact" with Graham, the fictions that the deceased and Margaret participated and perpetuated (that Graham had relocated to the United States and that David was the deceased's full biological son of the deceased) and asserts that, by the time Graham attempted to initiate contact with David as an adult, the "alienation" was complete.
The second factor relates to David's mental illness and ongoing personality disorder and their link to his childhood experiences, whereby David came to see the displacement of Graham as his father as a form of abandonment and the dysmorphia he experiences is directly connected the deceased coming into his life and displacing Graham's former paternal role. David submits that his illnesses and personality issues, as referred to in Dr Byth's report, are connected to his current disability and therefore, there is a link between his childhood experiences and the constraints placed upon his ability to provide for himself.
The third factor is dependent on an assessment of the reasonableness of the deceased's conduct towards David in rebuffing purported attempts to make contact after David's dispute with Robert in 2005, as outlined at [55] and [57] above, which David submits is unreasonable in the circumstances.
Robert takes issue with these contentions and submits that the court should not be satisfied that there are factors warranting the making of David's claim. His submissions can be summarised as follows: 1. There is no social, domestic, or moral obligation on the deceased to make provision for David as he was a member of the deceased's household for nine years at most, only partly dependent for a period of five years (from 1972 to 1977) and there is an absence of evidence of any financial dependency from the deceased from the time David was 16. The lack of any contact between David and the deceased for 15 years before the deceased's death and the infrequent contact for 10 to 15 years before also means that any bonds that existed between David and the deceased had dissipated by the time of the deceased's death. 2. There is no reliable evidence that the deceased took steps to alienate or extinguish David's relationship with Graham, and David's claim that the deceased did so is an example of David twisting facts to create an alternative narrative in an attempt to bolster his claim. 3. David's psychiatric condition does not constitute a factor warranting his claim and any suggestion that his mental health problems were somehow caused by the deceased is not justified or supported by David's lay or expert evidence. 4. David's contact with Robert in November 2013 and June 2015 were not attempts to contact the deceased and there is a lack of evidence to the effect that Robert smeared David's reputation with the deceased and, as a result, changed the deceased's attitude towards David from a positive to a negative one.
Robert also says, in response to David's submissions that assert that "[Robert] appears to accept the deceased had a social, domestic, or moral obligation to make provision for Alison…, but makes no such concession towards [David]" (closing submissions at [117]), that nothing should be extrapolated from the fact that Robert settled Alison's potential family provision claim in an early and expeditious manner. I agree. If by this submission David contends that the Court should be satisfied there are factors warranting David's claim because Robert's payment to Alison pursuant to the Deed of Family Arrangement is akin to an admission that he accepts that Alison was a natural object of the deceased's testamentary recognition (and by extension should accept the same in respect of David), I reject it. I do not consider that an inference can be drawn regarding those matters in the context where the Deed was entered into to "avoid legal costs and avoid Supreme Court proceedings" and "settle all disputes… in an amicable manner" (Recitals O and P) on a "without admissions" basis (cl 1). Alison may have been an eligible person under s 57(1)(e), but the court has very little evidence regarding her relationship with the deceased and her circumstances more generally.
The starting point is that an adult stepchild is not normally regarded as a natural object of testamentary recognition by a deceased. To satisfy s 59(1)(b) of the Succession Act, David must establish there are circumstances that go beyond the bare fact of the relationship between he and the deceased as stepfather and stepchild, such as to demonstrate there is a social, domestic or moral obligation on the deceased to make some testamentary provision for him: Spata v Tumino at [97], per Payne JA.
I am not persuaded by David's submission that the extinguishment of his relationship with and alienation from Graham is a factor that warrants the making of his application. The issue I have is that I do not consider that the evidence demonstrates that the deceased took steps to alienate David from Graham or extinguish their relationship, or that his conduct did so.
That David had no contact with Graham for some years after the deceased and Margaret were married seems more likely the consequence of Graham moving away from NSW with his new family (whether to the United States of America or Western Australia or not) and concerns that Margaret had (as David says she expressed to him) about Graham's religion and mental health, rather than a concerted effort on the part of the deceased to alienate David from his biological father during those years and the perpetuation of the "fictions" referred to in David's submissions. Leaving to one side that David accepts that "scant details are available" and that due to the passage of time, David might be mistaken in his recollection of what he was told about Graham's whereabouts when he was 11 years old, the fact is that Graham left the state and seems to have taken no steps to maintain contact and his relationship with David for some years.
As to the other alleged fiction, there is no evidence that the deceased referred to David as his biological child to the "world at large", as David asserts (David's closing submissions at [139]), although I accept that impression may have been created from David calling the deceased "dad" and using Brown as his surname. Irrespective of whether there were any such fictions, in my view, it does not follow, and I do not accept David's submission, that the inference is open that the deceased and Robert were the most significant beneficiaries of the fictions as it allowed the deceased to assume and benefit from a full paternal role in respect of two young children and provided Robert with the security and social acceptance that stemmed (at the time) from being part of a conventional family (closing submissions at [140]).
Nor do I accept David's submission that the deceased owed a social or moral obligation to provide for David that stems from the deceased's own conduct towards the young and impressionable David, which included alienating David from Graham. In the context of the facts in this case, it seems to me wrong to characterise the deceased's conduct as imposing his identity on David and seeking to displace Graham from David's life (closing submissions at [332]). To my mind, the evidence indicates that the deceased simply stepped in and provide the fatherly love, guidance and support that a stepfather might be expected to give to a stepson whose natural father was not on the scene and, according to David's evidence, may have been adversely impacted by a sensitive personality due, in part, to the nature of his biological parents' past relationship and beliefs.
Even if I were to accept that David may have been conditioned to reject Graham and his faith community, according to David's evidence, this was not due to the deceased's actions, but conduct on the part of Margaret and others (David's first affidavit at [17], [23], [24], [40], [112] and [149]). Far from the deceased imposing his identity on David, as Robert's submissions note, it was David who asked the deceased whether he could call him "Dad" and who then asked Margaret whether he could use the surname Brown.
As to David's alienation contention, the evidence shows that David re-established and maintained some contact with Graham from 1982. For the reasons set out above at [149] to [154], in my view, the evidence does not support a finding that David's relationship with Graham was entirely extinguished or that the "alienation was complete" by the time Graham attempted to initiate contact with David as an adult.
I accept Robert's submission that David's submission mental illness and diagnosis of Dysthymic Disorder is not a factor which warrants David's application in this case. There may be some connection between David's mental health and his childhood experiences but, as Robert submits, the reports of Dr Byth and Dr Gibson do not indicate that David's diagnosis of Dysthymic Disorder or depression is causally connected to any conduct on the part of the deceased. Dr Byth's report refers to, amongst other things, David dating his psychological problems back to his parents' separation (that is Graham and Margaret), Graham trying to indoctrinate him about the "Bretheren" and David's hypersensitivity from his traumatic and ambivalent relationships with his biological mother and father, and sister and step-brother over many years). Dr Gibson's 2006 letter to Dr Adams (Ex 11) is consistent with this. It indicates that if there was a cause, it may have been David's "extremely prejudicial relationship with his father who was involved in a cult". In my view, the medical evidence does not support David's submission that the dysmorphia he experiences is directly connected to the deceased coming into his life and displacing Graham's former paternal role or that his psychiatric condition was caused by the deceased's conduct and the nature of their relationship.
While I accept that David's current circumstances were likely impacted by his mental health over the years, in my view, David has not established that they are the product of the deceased's conduct or he has a disability in respect of which the deceased would be expected to bear a moral or social obligation, so as to translate into a factor that warrants David making his claim on the deceased's testamentary bounty.
The third factor David relies on refers to two attempts David made to contact the deceased.
As to the first, namely the Facebook message David sent to Robert in 2013 (referred to [55] above], I reject David's submission that this was an attempt by David at contact or reconciliation with the deceased. David's message was directed to Robert and made no mention of the deceased at all. Contrary to David's submissions (closing submissions at [150]), there is no evidence that Robert passed on that message or discussed it with the deceased.
As to the second message in 2015 (referred to at [57]), David did request that Robert passed it on to the deceased and I accept Robert's evidence that he did so. That said, I would not describe a message of condolence in relation to Colin's death as an attempt to reconnect with the deceased. Given the nature of the message and in the context where David had not made any contact with the deceased in over 10 years, I am not persuaded that any response from the deceased was called for and that it was unreasonable for the deceased not to do so. Nor am I persuaded by David's characterisation of the deceased's conduct as a "rebuffing" and "rebuke" of David's attempt to contact him, that it reflects the deceased having opted to side with Robert in the brothers' dispute, or is evidence from which the court should infer that Robert had totally smeared David's reputation with the deceased.
While finely balanced, the conclusion I have come to is that the nature and quality of David's relationship with the deceased is a factor that warrants David's application.
David may have lived with the deceased for a limited period, but it was on a fulltime basis from when he was around 11 years old. As I have found (at [144]-[146] above), David was treated as a son and raised as a member of the deceased's family from that time. The fact that David called the deceased "dad" and took on the surname Brown are matters which are, together with the other findings (at [104] - [109]), indicative of the familial bonds that existed between them from the time the deceased assumed the paternal role for David, taking on responsibility for his care and support during David's teenage years and into young adulthood. As Robert accepted in cross-examination, the deceased acted for all intents and purposes as a father to David and there was no difference in the way he deceased treated Robert, Alison and David as children (T199.9-15).
I am satisfied that David regarded the deceased as a substitute father for Graham from a young age and that his emotional attachment and relationship with the deceased were not destroyed by the deceased's separation and divorce from Margaret.
David maintained contact with the deceased until 2004 (albeit sporadic in the 10 or so years before), used Brown as his surname throughout his adult life and continued to refer to the deceased as "Dad" with family and friends (see, for example, his message to Robert in 2015). Robert also referred to the deceased as David's "father" in the funeral announcement, further recognition that the previously established familial relationship between the deceased and David had continued despite the weakening of bonds and then the total loss of contact after 2004.
I accept that there would be a range of views within the community as to whether a testator, who had been divorced from their adult stepchild's parent for nearly 30 years and who had had no contact with that stepchild for over 14 years, would have any moral obligation to provide for them. There is also an absence of evidence of the deceased himself acknowledging any ongoing relationship with David for some years. Nevertheless, a relationship existed that was, in my view, close enough to that of a parent/child relationship for a significant period of David's life, particularly during his teenage years and young adulthood, such that David could be considered a natural object of testamentary recognition, and I consider that it warrants the making of his application.

[25]

Should an order for provision be made?

Before making an order for provision out of the deceased's estate, the Court must be satisfied, at the time when the Court is considering the application, that adequate provision for David's proper maintenance, education or advancement in life has not been made by the deceased's will: Succession Act, s 59(1)(c). If the Court is so satisfied, it may make such order as the Court thinks ought to be made for David's maintenance, education or advancement in life, having regard to the facts known to the Court at the time the order is made: Succession Act, s 59(2).
In this case, having regard to David's age and circumstances, the relevant objects of the order for provision are for his maintenance and advancement in life.
Pursuant to s 60(1)(b) of the Succession Act, the Court may have regard to the matters set out in s 60(2) for the purpose of determining whether to make a family provision order and the nature of any such order. Those matters may be relevant both to the question of the adequacy of provision and, if the provision is found to be inadequate, whether an order for provision should be made and, if so, the nature of that order, including what amount: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7]; Chan v Chan [2016] NSWCA 222 (Chan v Chan) at [21].
The Succession Act does not prescribe the circumstances that constitute adequate provision for the proper maintenance and advancement in life, nor does it give greater or lesser weight to any of the various matters set out in s 60(2).
A multifaceted evaluative approach that takes account of all the factual circumstances relevant to the application is required to determine whether adequate provision was made for the claimant's proper maintenance, education or advancement in life: Sgro v Thompson at [6] (Payne JA), [86] (White JA, McColl JA agreeing).
While adequacy is concerned with quantum and the word "proper" prescribes the standard of the maintenance and advancement in life, they are relative concepts with no fixed standards. The Court is left to form opinions on those matters on the basis of its general knowledge and experience of current social conditions: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [74] (Gummow and Hayne JJ), [114] (Callinan and Heydon JJ) (Vigolo v Bostin); Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [423] (Limberger v Limberger).
The relevant circumstances will include a claimant's needs, although there is a distinction between needs and adequate provision. Whether or not adequate provision has been made is not to be determined simply by a calculation of financial needs: Chan v Chan at [22]. A claimant's needs are different to their "wants" and do not simply equate to "demands" or "desires": Bezjak v Wyatt [2018] NSWSC 199 at [120]. Attention may also be given to how the claimant lived and might reasonably expected to have lived in the future: Blendell v Blendell at [7]-[8]; Vigolo v Bostin at [114]. Any assessment of a claimant's needs requires consideration of the size of the estate and the claims of others on it: Chan v Chan at [22].
In appropriate cases, if the deceased was capable of and did give due consideration to what provision for a claimant's maintenance, education or advancement is proper, the Court should give considerable weight to the deceased's testamentary wishes. This approach recognises that a testator or testatrix is in a better position than the Court to make such an assessment, although the application of s 59 of the Succession Act is not confined by notions of reluctance to interfere with freedom of testation. The Court's assessment of whether there has been adequate provision for the claimant's proper maintenance and advancement in life must be made when the Court is considering the application, rather than at the time of the deceased's death or will, and requires an evaluative judgment of all of the circumstances: Megerditchian v Khatchadourian [2020] NSWCA 229 (Megerditchian v Khatchadourian) at [33], [35] (Payne JA, Macfarlan JA and Emmett AJA agreeing); Steinmetz v Shannon [2019] NSWCA 114 at [53] per White JA, [96] per Brereton JA (Steinmetz v Shannon). A well-established and long-standing understanding between a testator and potential beneficiary, properly informed, could well be relevant in assessing what is proper provision for that beneficiary: Steinmetz v Shannon at [112] (Brereton JA, Simpson AJA agreeing).
David makes his claim as an adult stepchild. I have already referred to the comments in Graziani v Graziani. In Cooper v Atkin [2020] NSWSC 828 at [203], Hallen J referred to the statement of Keane JA (as his Honour then was and with whom the other members of the Queensland Court of Appeal agreed) in Freeman v Jaques [2006] 1 Qd R 318 at 322 [29]; [2005] QCA 423 at [29], where His Honour referred to the evaluative balancing of relevant considerations in the context of a claim by stepchildren, as follows: "The more exiguous and distant the familial relationship between the deceased and a claimant, the greater must be the need of the claimant for maintenance or support if it is to give rise to the obligation, postulated of a wise and just stepmother, to make adequate provision for the proper maintenance or support of the claimant. Similarly, the greater the extent to which a step-parent's estate reflects her own contributions and efforts, the greater must be the need in the claimant for maintenance or support if a stepmother is to be regarded as subject to a moral claim to make adequate provision for proper maintenance and support."
The interests of Robert as the sole beneficiary under the deceased's will is relevant to the Court's consideration of the propriety and adequacy (or inadequacy) of any provision for David, both for the purpose of s 59(1)(c) and in determining whether provision should be made and the nature of any such order. Where, as here, Robert has adduced evidence of his financial position, the Court will consider his financial resources and needs as a relevant circumstance of the case: Succession Act, s 60(2)(d); Sgro v Thompson at [71]-[74].

[34]

Consideration and determination

David claims that adequate provision for his proper maintenance and advancement in life had not been made by the deceased's will in all the circumstances and seeks provision in the amount of $240,000.
He submits that the evidence demonstrates he has needs arising from his mental illnesses and physical disabilities that were unknown to the deceased at the time he made his will. He says that a wise and just testator in the same position as the Court armed with objective and accurate information about David's position (including in respect of Robert and David's interactions in relation to Eastelectric, his serious mental illness and relationship breakdown) would not have made the decision to disown a man who had been raised as a son for 35 years, and would make sufficient provision for a mentally and physically ill child to ensure that they had a modest level of comfort in their old age. This is in the context where David contends that he was a dutiful and good son up until 2004, when Robert and (allegedly) the deceased decided to disown him, was emotionally a full dependent on the deceased until 2005, he never asked the deceased for anything (and never took from him, unlike Robert) and there is no other person liable support him.
As already noted, David's submissions refer to being ostracised and marginalised by Margaret, Alison, and Robert throughout the course of his life, Robert's general ambivalence and sense of hostility towards David, the complete renunciation of him by his family, being saddened by the loss of the deceased and his family relationships and, as already noted, concerns regarding Margaret's future estate.
At this point, it is appropriate to record that the Court is not engaged in an exercise of addressing any sense of wrong, hurt feelings, disappointed expectations or of achieving fairness or equality between beneficiaries and claimants on the deceased's estate. The Court's role goes no further than determining whether "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in David's life has been made by the deceased's will and if not, the making of provision taking into account all the circumstances of the case: Steinmetz v Shannon at [94]- [97]; Meres v Meres [2017] NSWSC 285 at [114]; Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at [8].
Applying those principles, I do not accept David's submission that his feelings regarding the loss of his family relationships are relevant to a consideration of the issues or greatly assist in explaining his reasons for not contacting the deceased "between 2004 and 2009 when he tried to reach out to the deceased and was ignored" (closing submissions in reply at [226]). I have already set out why I do not accept that David reached out to the deceased and was ignored by him.
Even though I have found that there are factors that warrant the making of David's application, the fact that no provision is made in the deceased's will for him does not automatically mean that he will have satisfied the description of being "left without adequate provision": Cooper v Atkin [2020] NSWSC 828 at [222]. Whether there are factors that warrant the application is different from the question of whether David was, at any particular time, wholly or partly dependent upon the deceased and the further question which arises under s 59(1)(c) of the Succession Act as to whether adequate provision for David's proper maintenance or advancement in life has not been made by the deceased's will: Spata v Tumino at [72]; Page v Page [2017] NSWCA 141 at [38].
The question whether the deceased's will made adequate provision for David's proper maintenance or advancement in life must be considered in the context of the totality of the relationship between the deceased and David, the relationships between the deceased and Robert beneficiaries, the size of the deceased's estate, David's needs and the competing claim of Robert (as the only chosen beneficiary), having regard to the evidence summarised above concerning their financial and other circumstances (see [155]-[209] above).
I have described and made findings about the totality of David and the deceased's the relationship, relevantly concluding that there existed a father/son relationship for some years. However, other than the condolence message sent by David, no effort was made by either of them to keep in contact and maintain their relationship after 2004. Whatever emotional attachment David had towards the deceased, it is not difficult to conclude that it was likely one-sided by the time of the deceased's death and the deceased regarded and treated Robert as his only son. David maintains that it was Robert's character and conduct that caused this and that Robert and the deceased disowned him. I do not accept that submission. The issues between David and Robert may have influenced the deceased's views about David, but the evidence does not support a finding that deceased disowned David in 2005. Whatever thoughts David may have had during his periods of depression and subsequently, I am also unpersuaded that that his fear of rejection is a complete answer to why he did not reach out to the deceased, particularly as he reached out directly to Robert and maintained contact with Margaret and Alison during that period.
The deceased may not have known of the extent of David's mental health and physical limitations at the time he made his will but that is the consequence of David not raising those matters with him. In the context where David did not discuss his mental health issues with the deceased and their contact was sporadic and ad hoc for some years prior, I am not persuaded by David's submission that he was emotionally a full paternal dependent on the deceased until 2005.
David was financially independent of the deceased for many years before his death. The deceased did not provide David with any financial support or provision after 1982, a factor which, to my mind, tends against a finding of continuing dependence on the deceased and the recognition of a corresponding obligation or responsibility by the deceased towards David.
On the issue of David's needs, there is force to Robert's submission that David has set up streams of income, has demonstrated business experience in different fields and there is some evidence that David might have the capacity to expand into building management consultancy (Ex 97 and T185.16-T186.33). However, at 61 years of age and with health issues, it is to be expected that David's capacity to earn significant income over a lengthy period of years and change the nature of his employment is somewhat limited.
While I accept Robert's submission that the deceased's conduct cannot be attributed to the development of his mental illness, the fact is that David will need funds to pay for his going treatment. Overall, the evidence outlined at [187] to [194], satisfies me that David has established some financial needs to meet demands that he is likely to face in his advancing years. In comparison, Robert is in a better financial position than David, although I do not accept David's submissions that Robert is substantially better off. His net asset position and monthly income may be greater than David's, but Robert supports a wife and two young children, his expenses exceed his monthly income, and he also lives in rental accommodation. While I have approached Robert's estimate of $2 million for housing with caution, I am satisfied that he has a legitimate competing need for funds in relation to accommodation, health and education related costs. The fact that Robert has received the deceased's superannuation death benefits does not entirely diminish his needs for other funds, nor does the fact that he has received provision from the deceased over the years.
There is no documentary evidence that the deceased recognised he had a moral duty to provide for David or considered him as a potential claimant and decided to exclude him from his estate. However, his testamentary wishes, as expressed by the terms of his will, are consistent with statements he made regarding his intentions throughout his life and his attitude that Robert was his only son.
In my view, a key matter is the size of the deceased's estate, which is relatively modest, particularly when regard is had to the legal costs incurred by the parties. Any provision, if ordered, will be at the expense of Robert who, in my view, has a strong competing claim as the only biological child of the deceased and natural object of the deceased's testamentary bounty.
When considering how the deceased would make his decision regarding his relatively moderate sized estate, he was faced with a recognised moral obligation to provide for Robert (and by extension Robert's family) who has financial needs and had a continuing and mutually loving and supportive relationship with the deceased throughout his life, as reflected by the financial assistance given to Robert by the deceased over the years and the support and companionship Robert provided to the deceased, including assisting the deceased's move up to the Central Coast. This has to be balanced against David's claim, a stepson who took on the deceased's name and was treated as a son by the deceased in the absence of his biological father, has mental health issues and financial needs but had no contact with the deceased during the last 15 years of the deceased's life, sporadic and ad hoc contact for some years prior to that, was financially independent from the deceased for his whole adult life, has made no contributions to the deceased's welfare or to his estate (financially or non-financially) and whose mother divorced the deceased over 35 years ago.
I accept that a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed and that, where an adult child falls on hard times and there are assets in the estate available, then the community may expect parents to provide a buffer against contingencies or something to assist in retirement where otherwise they would be left destitute: Armitage v Fraser [2020] NSWSC 979 at [151]. But where parental ties, affection and support arise from a "step" relationship and the marriage from which that relationship derives has ceased prior to a testator's death, to my mind, there may be no expectation that the adult stepchild would be a natural recipient for provision. As has been observed, in the context where the marriage has not ceased, there can be no guarantee that a "surviving spouse will feel the same obligation to step-children that a parent could be expected to have": Harris v Harris [2018] NSWCA 334 at [34] per Simpson AJA.
Notwithstanding the history of the relationship between the deceased and David and David's needs, making an evaluative judgement based on all the circumstances assessed at the date of the hearing, in my view, it was open for the deceased, acting as a wise and just testator, to provide for Robert to the exclusion of David.
I accept that there may be a range of views on what community standards and expectations would require in this case, particularly given the matters to which I have referred to at [254] to [257], and David's needs. In my view, these factors, while significant, do not justify a conclusion that inadequate provision has been made for David's proper maintenance and advancement in life, in the circumstances of Robert's strong competing claim. The nature of the past paternal relationship between David and the deceased and David's needs are not dispositive.
Providing David with $240,000 plus his legal costs on an ordinary basis, would leave Robert with approximately $33,332.04 from the deceased's estate after the payment of his legal costs on the usual executor indemnity basis. That amount is not what I consider to be an appropriate outcome having regard to all the circumstances of this case, even taking into account that Robert has received the deceased's superannuation death benefits as his son and "dependant".
It follows that, I am not satisfied that, having regard to all the facts known as at the date of hearing the application, adequate provision for David's proper maintenance and advancement in life has not been made by the deceased's will and I decline to make an order for his provision out of the deceased's estate.
Had I been persuaded that adequate provision had not been made by the deceased for the proper maintenance and advancement in life of David, I would have ordered the provision of a smaller legacy that he sought, in an amount of approximately $50,000, to provide for his advancement as a fund for exigencies in life. I would also have capped the recovery of his legal costs to ensure that Robert was left with a sufficient fund.

Parties

Applicant/Plaintiff:

Brown

Respondent/Defendant:

Brown

Legislation Cited (13)

Family Law Act 1975(NSW)

Family Provision Act 1982(NSW)

Inheritance (Family Provision) Act 1972(SA)s 6(g)

Succession Amendment (Family Provision) Act 2008(NSW)

Superannuation Industry (Supervision) Act 1993(NSW)

Administration and Probate Act 1958(Vic)ss 90

Family Provision Act 1969(ACT)s 7(1)(d), 7(2)

Family Provision Act 1970(NT)s 7(1)(d), 7(2)(b)

Family Provision Act 1972(WA)s 4(1), 7(1)(ea)-(eb)

Succession Act 1981(Qld)ss 40, 40A, 41(1)

Succession Act 2006(NSW)

Superannuation Industry (Supervision) Act 1993(Cth)

Superannuation Industry (Supervision) Regulations 1994(Cth)

Cases Cited (44)

Spata v Tumino [2018] NSWCA 17 Steinmetz v Shannon [2019] NSWCA 114 Stone v Stone [2019] NSWSC 233 Trembath v Trembath [2017] VSC 369 Vanderloo v Milne [2014] NSWSC 1932 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Police [1998] SASC 6717 Watson v Foxman (1995) 49 NSWLR 315 Yee v Yee [2017] NSWCA 305 Texts Cited: Australian Superannuation Handbook: 2022-23 (1st ed, 2022, Thomson Reuters) New South Wales Department of Justice, Statutory Review of the Succession Act 2006 (February 2018) Category: Principal judgment Parties: David Brown (Plaintiff) Robert Frank Brown (Defendant) Representation: Counsel: M J Henry (Plaintiff) S K Hill (Defendant)

The hearing and the evidence

The hearing was listed for three days but did not complete within that time due to matters which are unnecessary to detail in these reasons. The Court reconvened to complete the evidence and then set a timetable for written closing submissions which were received (in default of the timetable) on 3 March 2022 (David's closing submissions), 18 March 2022 (Robert's closing submissions) and on 6 April 2022 (David's closing submissions in reply).
At the hearing, David relied on three affidavits he had sworn on 8 February 2021, 13 December 2021 and 24 January 2022 and parts of an affidavit sworn on 29 January 2022 (paragraphs [6]-[28]). He also read affidavits from Ben Mitchell (David's cousin on Margaret's side of the family) sworn 16 February 2021 and from some friends, Glenn Drabble sworn 11 February 2021, James Gillis sworn 11 February 2021 and Dirk Yates sworn 15 February 2021.
Robert relied on his affidavits affirmed 1 March 2021 and 8 December 2021, as well as his administrator's affidavits affirmed 27 November 2020 and 8 December 2021.
In addition to the affidavit evidence, there were numerous exhibits tendered, a number of which were not referred to by the parties at the hearing or in their written submissions. The written closing submissions received from the parties were also extensive (David's closing submissions in chief and in reply total 114 pages). While I have had regard to all the materials, these reasons focus on the evidence that was addressed by the parties at the hearing and in their closing submissions which is necessary to assess the relationship between the parties and the deceased and the other matters in s 60(2) of the Succession Act to determine David's claim.

Cited By (3)

Brown v Brown

Plummer & Anor v Montgomery

Soulos v Pagones; Soulos v Soulos; Soulos v Soulos; Soulos v Pagones; Kristallis v Soulos; Kristallis v Soulos; Kristallis v Pagones