Cameron v Vale - Estate of Leslie Braeside Arthur; Arthur v Vale - Estate of Leslie Braeside Arthur; Arthur v Vale - Estate of Leslie Braeside Arthur

3803/97 - Robyn Kathleen Cameron v John Vale - Estate of Leslie Braeside Arthur; PARTIES : 1151/98 - Robert Alfred Arthur v John Vale - Estate of Leslie Braeside Arthur; 1978/98 - Philip James Patrick Arthur v John Vale - Estate of Leslie Braeside Arthur JUDGMENT OF : Acting Master Berecry

3801/97 Mr B Sharpe (Plaintiff) Mr A Lucas (Defendant)

1151/98 Mr R Tonner COUNSEL : (Plaintiff) Mr A Lucas (Defendant)

1978/98 Mr J Wilson (Plaintiff) Mr A Lucas (Defendant) 3803/97 Harpers (Plaintiff)

1151/98 Stuart & Mills SOLICITORS : (Plaintiff)

1978/98 Markham Geikie Garrugia (Plaintiff)

Patrick Grimes & Co (For all Defendants) CATCHWORDS : lack of contact; significance of ralationship; relevant circumstances under s 9(3)(d) scant evidence as to needs ACTS CITED : Family Provision Act 1982 (NSW) CASES CITED : Arratoon v Arratoon (NSWSC, unreported 31 July 1995, Bryson J) Singer v Berghouse (NSWCA, unreported 23 July 1992) DECISION : See para 44

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3803/97 - ROBYN KATHLEEN CAMERON v JOHN VALE - ESTATE OF LESLIE BRAESIDE ARTHUR 1151/98 - ROBERT ALFRED ARTHUR v JOHN VALE - ESTATE OF LESLIE BRAESIDE ARTHUR 1978/98 - PHILIP JAMES PATRICK ARTHUR v JOHN VALE - ESTATE OF LESLIE BRAESIDE ARTHUR

1 MASTER: There are three applications under s 7 of the Family Provision Act 1982 (NSW) before me this morning. Each of the applicants is a child of the deceased. Robert Arthur is the eldest surviving son of the deceased, Philip Arthur is a son of the deceased and Robyn Cameron is a daughter of the deceased. 2 The deceased was born in 1915 and was married in 1936 to the mother of the three plaintiffs. On the evidence of the plaintiffs and it appears to be uncontradicted, life at home with the deceased was nothing short of misery. He was an alcoholic, inclined to violence, which was directed towards his wife rather than the children, although the children, and from Philip's evidence, Philip lived in dread of his father. 3 The deceased appears to have been a man who had no interest whatsoever in his children. He left the family in 1952. At that stage Robyn was about five. The eldest son, Robert, was about seventeen. After the deceased left the family there was very little contact with him. Prior to leaving the family, especially for Robert, the role of being the head of the family fell on his shoulders. That appears to have happened at a very early age for Robert. His evidence is that he did the sort of odd jobs that most school children do to earn some pocket money but the work that he did was vital to the family and that money was used towards the family expenses. Robert gained no personal benefit out of any money he earned as a child. 4 It appears that up until Robert was about ten or so the deceased was if not illiterate, almost illiterate. Robert's evidence and it is not contested, is that he assisted his father to gain employment in the railways by assisting him in being able to add up and at least the rudimentary ability to read. It could be said that Robert therefore never had a childhood. He went straight from birth into adulthood. Most of the misery of the family seems to have impacted rather on Robert than the other children simply because he was the eldest child. 5 After the deceased left the family there were very personal tragedies within the family. The mother and the children other than Robert moved to Sydney. At no stage did they ever have the luxury of owning their own property. It was always rented accommodation and for a short time, living with relatives. Robert made his own life in Queensland, married and had a family. 6 The evidence of the three children from post-1952 about relationship with the father was given candidly and honestly but it paints a picture of people who had very little contact with one another and people who, probably for good reasons, certainly from the children's point of view, had very little feeling towards the father. 7 In Robert's case his evidence is that he had regular contact with his father in 1965 for about six months. After that he saw him once in 1967. The deceased did send him some binoculars from New Zealand in the mid-1960s but beyond that and the contact in 1967 there was no face to face contact. 8 Robert's evidence is that in the 1970s he wrote to his father and sent photographs of the grandchildren but there was no response from the father. By the early 1980s Robert had stopped writing to his father. Even if it is accepted that he did not resume writing, the fact of writing for the period of approximately ten years and getting absolutely no response means that one really could not blame Robert for not persisting with something which was totally unrewarding. 9 Robert never saw his father again after the meeting in 1967, a period of approximately thirty years. 10 Philip had more contact with his father but that may have been based more on geography rather than intention or a closer bond between father and son. He saw his father in 1964. Next there was contact in 1973 for a few weeks. The mid-1960s though, so far as Philip was concerned, I think is the significant period because there was at that time a motor vehicle accident that Philip had which resulted in Robyn having her right leg amputated just above the knee and it appears that that was one of the few times that the deceased actually volunteered to have anything to do with any of his children. There was some contact with Philip and the evidence is that the deceased provided some money for Philip to engage a solicitor to represent him in relation to the charges that were brought against him as a result of the accident. 11 After that, as I said earlier, the next contact with the deceased was in 1973. That contact lasted only a few weeks. A period of fifteen years transpired before there was contact again. In 1988 Philip actually sought out his father. He discovered that his father returned to Queensland every Christmas to spend some time with Paul Arthur. Armed with that knowledge, Philip's evidence is that he made the effort to go to Central Queensland and to see his father and they spent a day together before Philip continued on to Mt Isa. 12 After that there was no contact until 1990. Between 1990 and the death of the deceased there appears to have been about six episodes where contact was made either directly or indirectly with the deceased. Most of the contact was by telephone. Philip's evidence is that on the last occasion he saw his father the deceased denied any knowledge of Philip. Whilst there is no medical evidence before me, this evidence was not contested. It appears that the deceased by that stage was suffering some degree of dementia. It would therefore be understandable for the father to make such a comment. People who have had a lot of experience with one who is inflicted with Alzheimer's or dementia know that often there is poor recognition of a spouse and yet it does not follow through that any comments they may make about that person are comments having the intention of the words that are spoken. I do not place much weight on the comments attributed to the deceased towards Philip. 13 Nevertheless on Philip's own admission there was not a great deal of contact with his father over the thirty years prior to his death. There was however some contact. 14 The evidence does suggest that while some of the children did take steps to contact the father and to include the father, he on just above every occasion rejected their overtures. 15 Robyn is the daughter of the deceased. She is currently fifty-two years of age. She has no dependant children but she is suffering from a significant disability. She lost part of her right leg in the accident that I mentioned a short time ago. She has made efforts to retrain herself. She had taken steps to locate her father and to try and develop a relationship with him. The evidence is that in 1965 the father visited her in hospital. I have also heard evidence from Robyn this morning that in later years her father could not face up to dealing with Robyn because she did not have two legs. Her evidence was that that was something he could not cope with and therefore perhaps that in part is the reason why he never initiated contact and never encouraged contact to be maintained when both she and Philip did make contact. 16 In 1972, 1973 Robyn used her initiative and tried to locate her father. She took a positive step to locate him. That to me would indicate certainly from Robyn's point of view that she did have feelings for her father and that she wanted to establish a normal father/daughter relationship. When she did make that contact the contact however was not regular contact because of the problems the father had always had with alcohol. The times when he came to Robyn's place for the weekend it was not long before he was off to the hotel and that appears to have soured the relationship. 17 Robyn again made contact in the mid-1990s after a period of twenty years. It was a period of no more than twelve months or so before the deceased died, but nevertheless she maintained telephone contact with St Ignatius College and at times spoke to her father. Both she and Philip visited the deceased on a couple of occasions. 18 The father throughout the adult life of the three plaintiffs made no attempt to maintain contact with his children. Each of the three plaintiffs is an eligible person under s 6(i)(b). They are people therefore who are usually regarded as a natural object of testamentary recognition by a parent. In this case that has not happened. The deceased made his will on 25 August 1993. He made no provision for his children. His estate was to be divided equally between St Ignatius College and Paul Arthur. The evidence is not clear concerning the relationship of Paul Arthur to the deceased. There is evidence to suggest that he was a nephew of the deceased; there is other evidence to suggest that there was no relationship at all. 19 I think this case is capable of distinction in relation to those cases where there has been a complete breakdown of family relationships. At least two of the children made attempts to create a relationship with their father. I suppose it is a question of degree as to how far and for how long you persist with something that is unrewarding. It could be that they did not try hard enough. Even Robert made some attempts to keep his father aware of his grandchildren and Robert's family but the evidence is that the father ignored that and did nothing to reciprocate. 20 It seems to me in this particular instance this is a case where at least the children have made some, even if only half-hearted, effort to make contact and maintain contact with their father but it cannot be said that at any stage the father really made any effort to seek out his children and to try and create a normal parent/child relationship. 21 Nevertheless I think the words of Bryson J in Arratoon v Arratoon (NSWSC, unreported 31 July 1995) do have some relevance to these proceedings and I will read from that decision: "It is of course possible for even as close a relationship as that of parent and child to dwindle away to nothing and if there is no communication over many years, that relationship, which of itself is, at least to some extent, a claim on the parent's bounty can cease to have that significance." 22 In that particular case his Honour went on and made provision for the child. I think this case also is one in which provision should be made for the children. 23 Mr Wilson alluded to a person's right to dispose of their property as they see fit. The court has only a limited role to play in dealing with an application under s 7 of the Family Provision Act 1982 (NSW). The court cannot stand in the shoes of the testator and set aside the will in its totality unless there is evidence before it which enables the court to do so. The fact that there are hurt feelings or that perhaps in the eyes of the plaintiffs there should be some sort of justice now delivered to meet what they regard as perhaps their wishes of what their father should have done for them, is not enough for the court to make provision under the legislation. The parties must establish what is commonly referred to as a need and it must be a present need, not a need that may arise at some stage in the future. 24 Certainly so far as Philip and Robyn are concerned, I am satisfied that there is some evidence which establishes that there is a need, that had their father had been a wise and just testator would have taken their position into account when he made that will back in 1993. He was aware that Robyn had lost part of one leg in 1965 and that as she got older she may need some assistance from the father or from his estate just to enable her to get by. 25 Philip has also demonstrated that there are some needs that perhaps should have been recognised by his father. There are matters that Philip has identified as matters of need to him and for which provision should be made.

26 Robert is in a different category from his brother and sister. Robert has put on evidence which really only goes to one half of the equation. He has set out what his assets are and his weekly income. He has not set out what his liabilities are or what his weekly outgoings are. It is very difficult therefore to work out what provision, if any, should be made for Robert. 27 In a well-known case of this court comment on the absence of evidence was made by Sheller JA and supported by Cripps JA in Singer v Berghouse (NSWCA, unreported 23 July 1992). Sheller JA said: "I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her intentions or needs for the future or as to what lump sum provision, applying appropriate discount tables, would be required to meet these claims or needs, if they existed". 28 It is difficult to see that any provision at all should be made for Robert. However, s 9(3) of the Act I think is broad enough to take into account the relationship of Robert and his father and the family generally. Under s 9(3) there is a very broad discretion and that reads as follows: "In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or the notional estate of a deceased person the court may take into consideration: (a) … (b) … (c) … (d) any other matter which it considers relevant in the circumstances". 29 Other provisions within subs (3) also recognise qualities such as conduct and circumstances. 30 It seems to me that, taking those matters together, a case has been made out for Robert to receive some provision out of his father's estate and it seems to me that it is on this basis that, whilst there has been little or no contact between Robert and his father for many years, there was in fact some contact even though it was only one way. Robert wrote to his father and sent photographs in the decade of the 1970s. True it is he never sent Christmas cards or cards at Easter or birthdays to his father, but he did make some attempt and, as he pointed out, he was living 1500 miles away from his father. 31 It could be said of all three plaintiffs that at no stage of their working lives could any of them be regarded as people on high incomes. Therefore in all probability money earned was already well and truly designated to meet day to day expenses. 32 The other aspect in relation to Robert's relationship with his father is, as I referred to earlier, that when Robert was a child and a teenager, the father completely wiped himself of any responsibility for the family unit and to a large degree in Robert's teenage years any money that he earned went towards the family unit and that was a responsibility that rested primarily with the deceased and not with Robert. There is evidence that Robert assisted his father to obtain employment with the railways by helping his father understand mathematics. 33 It seems to me when one considers those matters they are in the general scheme of things matters that do have some significance, some importance, and are matters that the deceased should have recognised when making his will. He has not done so and I think probably, being a wise and just parent, he would have at least acknowledged the contributions made by Robert on his behalf both to his own development and to the welfare of the family unit. 34 Nevertheless I am still hamstrung by the lack of material in relation to Robert's needs. 35 It seems to me that when one takes into account what this nett estate will be and the evidence before me now is that the estate will be no more than approximately $97,000, it seems to me that any provision made for the children is of course not going to be great. 36 I still have to recognise that the deceased had expressed his testamentary intentions in the will and has left something to a nephew and something to Riverview College. Riverview is where he spent the greater part of the last thirty years of his life and that is significant in itself. Nevertheless there was a responsibility to the three plaintiffs. 37 Doing the best I can on the material concerning Robert, his assets are a half-interest in the matrimonial home, a motor vehicle worth about $5,000, contents of the house about $10,000 and a bank account held jointly in the names of his wife and himself of approximately $1,000. His income is a pension. He receives $290 per week from the pension. He does have some medical conditions. He is sixty-four years of age. Any medical conditions he has are only likely to get worse and not improve. 38 This estate is not large enough to give Robert a sum of money which would enable him to acquire that other half-interest in the matrimonial home. In any event even if it were, I do not know that I could do that, simply because the evidence is sparse on that point. I do not know who holds that other half-interest. It may well be that it is held by one or some of his children. 39 For Robert I think the appropriate way to approach any provision for him is to consider that perhaps the house may need some work done on it, although there is no evidence of that. Certainly there is evidence that he says the motor vehicle is worth $5,000 and that was not put in issue. He puts the contents of the house at around $10,000. That is not put in issue. No doubt both those matters will need consideration in terms of replacement at some stage in the future. 40 For Robert therefore I make provision out of his father's estate of a legacy of $15,000. Robert's costs are to be paid by the estate on a party and party basis. 41 As for Philip, he does not own any realty, he has rented all his life, his present income per week after expenses is approximately $50 per week. He has no skills, his work appears to fall into two categories: one as a truck driver and the other as a security officer. Having regard to his age, in both those fields he will find employment difficult in the future. He is currently employed but of course there is no guarantee that over the next ten or eleven years he will be able to maintain that employment. His assets are very meagre. He is the recipient of two superannuation policies that are currently worth about $17,000. He has around about $700 in bank accounts and his motor vehicle is worth around about $1,500. He has liabilities in the nature of loans with his former de facto wife which are currently worth about $3,500. In para 8 of his affidavit of 15 October he has set out a number of matters. I regard the matters he sets out in sub-paras (a) to (e) of para 8 as being matters that are properly items that fall within the legislation. An appropriate legacy for Philip would take into account those matters of this nature and should give him a small cushion for any contingencies that may arise so far as his employment is concerned. Therefore I propose to make in favour of Philip a legacy of $20,000 and his costs from the estate will be on a party and party basis. 42 Robyn has some significant needs. She has a disability which is significant. As a result of the amputation, with the passage of time other medical problems have arisen and will continue. She has taken steps to train herself and she is currently in part-time employment. She has suffered a marriage break-up. To all intents and purposes Robyn is left at age fifty-two to fend for herself. She lives in Housing Commission accommodation and it has not been suggested that that accommodation is not secure. She receives subsidised rental from the Housing Commission and it seems to me that because this estate is not big enough to provide Robyn with some form of accommodation or to give her a significant sum towards acquiring accommodation, the accommodation aspect can be put to one side because of the security she currently has with the accommodation of the Housing Commission. Her weekly income is $285. Her expenses are $236, leaving approximately $49 per week. However, Robyn has very little in the way of assets, approximately $5,000 in furniture, a motor vehicle worth about $3,000 and about $8,000 in bank accounts. She has osteoarthritis and has other disabilities. As I said earlier, her father was aware of the significant disability which she suffers from. Whilst he made the will before the last contact with Robyn, it was always open to him to change the terms of his will to make some provision for her. I would have thought that having regard to what Robyn did in 1972, 1973, her father also would have given some consideration in his will to her. However he did not. She received nothing. 43 I think Robyn should receive a legacy in her father's estate in the sum of $50,000, her costs to be paid out of the estate on a party and party basis. 44 The defendant's costs are to be paid out of the estate on a trustee basis. The balance of the estate of course will be distributed in accordance with the testamentary intentions of the deceased. **********

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