ELIGIBILITY
41The two plaintiffs are eligible persons, since they were both dependent on the deceased and part of the deceased's household. However, it is necessary under s 59(1) of the Succession Act 2006 that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681, McClelland J, when considering the equivalent expression in the Family Provision Act 1982, described that expression in the following terms:
"Secondly, the subsection appears to be premises upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'"
42It was the defendant's submission that as the two remaining plaintiffs were foster children, there was no moral duty to provide for them after they turned eighteen. This was expressed in their submissions as follows:
"17. To undertake to adopt a child, as opposed to foster a child, involves significantly different consideration s and different, and greater, obligations.
18. The moral obligation on agreeing to foster a child (or what might be considered to be right and proper according to contemporary accepted community standards) involves undertaking an obligation for maintenance of the child, usually with financial assistance, but does not involve an undertaking regarding advancement, particularly in the child's adult years.
19. Fostering often commences with short term respite/holiday stay. If it then moves on to a more permanent arrangement it is:
(a) One desired to provide a significant benefit to the child in need, that benefit being relief from State care (or removal from an unsatisfactory family situation) during the child's minority to, at most, age 18;
(b) An undertaking by the foster parent only during the minority of the foster child, not undertaking beyond that; and
(c) Not an undertaking to adopt the foster child, nor the creation of a relationship such as that created by adoption.
20. It is submitted that it is only if events after the foster child achieves the age of 18, or there are special circumstances which demonstrate that notwithstanding a failure to adopt the foster child the foster parent considered the relationship to be akin to an adoption (for example where adoption could not take place, despite the wishes of the fostering parent, because of non-co-operation by a biological parent) that the moral duty of the foster parent, subject to competing claims and the extent of his or her estate, carries on beyond the foster child's age of 18."
43The present question of whether there are factors warranting the making of the application in this case are partly answered by the deceased's actions in leaving them provision in her will. But, as the question raised will affect the Court's consideration of the extent of the moral duty to be considered on the jurisdictional question, it is useful to address it at this stage.
44Russell gave evidence of conversations with both his parents when they explained their actions in these terms:
"It's important that you should know what will happen when we die. We have given some cash money to Judith and Clem and a larger amount to Alva and left everything else to you. You and Anna and your children are our real family and you have provided us with so much support over the years. We believe we were doing a good thing in fostering the other 3 children but know it must have impacted on you and your life. We have done our best for all Alva, Judith and Clem by providing them with a better life."
45Precisely why the deceased gave a slightly larger share to Alva is not explainable on the evidence but it is apparent on the face of the will. Importantly, the will made in 2004 predated the time when Alva moved in and provided considerable help to the deceased in the last five years of the deceased's life. This was also notwithstanding the break in the relationship with Alva when she was eleven years old. Plainly, the deceased in 2004 felt a different obligation to her fostered children than to her natural son.
46The defendant points to many discussions in the cases on this topic relating to the "bare fact of paternity" and its importance in the consideration of the moral obligation which a testator bears to provide for children.
47In Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J rationalised the decision in Pontifical Society for the Propagation of the Faith v Scales (Scales' case) (1962) 107 CLR 9. Scales' case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18):
"The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him... ...In truth, there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death."
48In Gorton v Parks at pp 9 to 10, Bryson J sought to distinguish Scales' case. He said:
Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgement of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective... ...Under modern legislation parental duties are not distinguished according to acknowledgement or legitimacy. The idea that acknowledgement by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962."
49There was also comment in Nicholls v Hall (2007) NSW 356 in these terms:
"There are some statements in the cases that could be understood as meaning that, if there is nothing more than 'bare paternity' in factor (1) the relationship between the applicant and the deceased, then the applicant cannot succeed. In our opinion, such an understanding would be plainly wrong. Even if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors (that is, needs, size of estate and lack of competing claims), a court could find that that child was left without adequate provision for proper maintenance."
50Making a conscious decision to bring a child into the world brings with it responsibilities. Taking a child into care without adoption does not involve the same commitment. If it does not work out, the foster parents can give the child back to the State, which will resume its care for the child as a ward of the State. However, experience teaches us that the initial starting point can change over the years as, hopefully, the child and the foster parents grow together in their relationship.
51One frequently sees cases where a foster child is treated as a natural child by the foster parents. This occurs not only with a childless couple but also with other families who also have a natural child as well as the foster child.
52To suggest that there is such a major difference in the obligation owed to a natural child compared to that owed to foster children ignores the complexities of relationships which occur in each individual case.
53As has been said before, there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision, or further provision, for the applicant.
54For example, if after a year of foster care a child is returned to the State and there is no further contact for the remaining fifty years of the deceased's life, one may well conclude that there was no duty to provide for the child.
55In this case we have a quite different situation. Both children maintained their contact with the deceased for the next fifty years after they grew up. That contact and the relationship arising from it was so important that Alva adopted a position of major responsibility for the deceased in the last five years of her life.
56The relationship with Clement did not finish when he turned eighteen and ceased to be a foster child. He stayed living as part of the family until he married at age twenty-five. When he married, the deceased and her husband, as I have said, sat at the bridal table.
57Plainly in this case there are factors warranting the making of the applicant. The relationship between both of the plaintiffs and the deceased had moved far beyond the bounds of their foster care origins.
58In applications under the Family Provision Act 1982 the High Court in Singer v Berghouse (19412) 181 CLR 201 has set out the two-stage approach that a court must take. These comments are equally applicable to claims under the Succession Act 2006. At p 209 it said the following:
"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life?' The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' et cetera were explained in Bosch v Perpetual Trustee Co Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance et cetera appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."