Charlesworth v Herring [2007] NSWSC 312 | Case summary

The issue 1 Alan John Charlesworth aged 44, is a disable person. He seeks, by his tutor, provision for his maintenance and advancement in life from the estate of his deceased father, Roger Charlesworth. Background 2 The deceased died in August 2004. He was survived by two children the other being Kathryn Charlesworth. Ms Charlesworth is Mr Charlesworth's tutor. She has also been appointed the manager of Mr Charlesworth's estate by the Guardianship Tribunal. 3 The marriage of Shirley Rhymers Hall, the mother of Ms Charlesworth and Mr Charlesworth, to the deceased was dissolved in 1973. Mrs Hall married Harold Wilfred Hall in May 1979. The deceased made his last will in July 1984. He gave his estate to Dora June Herring provided she survived him. She did not, and her daughter, Natalie Jane Herring, the defendant, took the estate by a gift over. Letters of administration with the will annexed were granted to Ms Herring, the substitute executor having renounced probate. The estate is a relatively small one now standing at approximately $185,000.00. 4 Mr Charlesworth was diagnosed with phenylketonuria at the age of 18 months. It results in brain damage. Mr Charlesworth is intellectually handicapped. His sister estimates his intellectual capacity as that of a four or five year old. He must remain on a strict PKU diet. He has now had prescribed a new medication, Risperdal. Mr Charlesworth cannot read or write. He cannot do mathematics. He cannot care for himself independently. He needs 24 hour a day care. He enjoys music. 5 His mother intends to look after Mr Charlesworth for as long as she can. If things remain as they are, Ms Charlesworth intends to take over his care in the event of her mother's incapacity to continue to do so. 6 Shared house accommodation has been discussed as a possible alternative. Mrs Hall said the waiting time for that accommodation was about nine years. On present figures it would cost approximately 75% of Mr Charlesworth's pension entitlement of $494.70 per fortnight. Mrs Hall receives a carer's allowance of $92.40 per fortnight. Mr Charlesworth's fortnightly expenses total $488.00. He attends the Eagleton Ridge Respite Centre about every three months at a cost of $960.00 for a three night stay which, since June 2005 has been funded by the Commonwealth Respite Centre. Mr Charlesworth stays with his sister about one weekend out of every three. Mrs Hall spends about $668.00 per annum on special food products and Mr Charlesworth's prescriptions. Mr Charlesworth has assets totalling about $5,400.00 together with a deposit with the Newcastle Permanent Building Society of approximately $18,000.00. In nine months, it had increased by $6,000.00 because Mrs Hall banked Mr Charlesworth's pension and subsidised him herself. 7 Prior to their separation, Mrs Hall and the deceased resided in the family home at Dryden Street, Wallsend. They separated in February 1967 and Mrs Hall and her two children commenced to reside at her mother's house in Russell Road, New Lambton. The deceased visited Mr Charlesworth on a few occasions, said by Mrs Hall not to have exceeded two times. The last contact was in 1968 when Mr Charlesworth was about six years' old. His father took him fishing, but it did not work out and the deceased did not come back again. From that date until the death of the deceased some 36 years later, Mr Charlesworth had no contract with his father. 8 With the exception of one occasion in 1988, Ms Charlesworth had no contact with her father. She did not speak with him on the telephone. She did not write to him, except on one occasion when she sent him a sympathy card. Their houses were separated by just 13 kilometres and Ms Charlesworth and her mother both held driver's licences. 9 From 1968, Mrs Hall had no contact with her ex-husband. She did not write or speak with him on the telephone. 10 Mr Charlesworth can communicate his desires. At no time since 1968 did he say he wanted to make contact with his father. And neither Mrs Hall nor Ms Charlesworth made any attempt to have Mr Charlesworth contact his father. There was, literally, no contact between Mr Charlesworth and his father in the 36 years that preceded his death. 11 The deceased was a friend of Ms Herring's father. They had been at school together and they went on social outings together. He had separated from his wife and the whole of Ms Herring's family knew the deceased quite well. As she was the youngest child of the family, she was closer to him than her other sisters. 12 When Ms Herring's parents parted, she and her mother returned to the family home at Murnin Street, Wallsend. Mrs Herring renewed contact with the deceased and about a year later, in 1983, Mrs Herring and the deceased formed a relationship. Mrs Herring stayed at the deceased's home every night and Ms Herring stayed there on some nights. 13 As Ms Herring grew up, the deceased took her fishing, playing golf and many other childhood activities with her mother. He bought her school needs, including uniforms, sporting equipment and musical instruments, and he paid for school excursions. 14 Mrs Herring had little money, being in receipt of a sole parent benefit. The deceased carried out repairs to their home in Murnin Street. Mrs Herring cooked and cleaned house for the deceased until her death. Ms Herring remained close to the deceased as she grew up and felt that he treated her like a daughter. He treated her children as if they were his grandchildren. The deceased paid for the funeral of Mrs Herring. Ms Herring described him as devastated by her mother's death. Ms Herring retained contact with the deceased on a regular basis after the death of her mother as he only lived a few blocks away from where she lived. 15 When Ms Herring turned 21, she received $13,000.00 as her share of the sale price of the Murnin Street house. She used the money to purchase a second hand motor vehicle. 16 Ms Herring discussed with the deceased, his ex-wife and children on only one occasion. He said she had married and he had left them to get on with their lives. She thought it a sore point with him and did not mention it again. 17 Ms Herring is a chronic asthmatic. She is treated for bouts of depression. She suffers irritable bowel syndrome and a multiple fractured disc in her back. She has repetitive strain injury for which she has been advised she is not entitled to any lump sum for workers' compensation. Her children are in reasonable health apart from suffering from asthma. Her daughter requires specialised corrective glasses. Ms Herring and her children live in a Department of Housing fibro home. Her doctor has advised that the asthma that the family suffers is possibly being aggravated by the type of accommodation in which she lives. 18 Ms Herring earns an average of $500.00 per fortnight and receives family support of $294.00 per fortnight. She receives workers' compensation of $250.00 per fortnight. Ms Herrings has savings of just over $3,000.00 and owns NRMA shares worth approximately $1,200.00. She values her motor vehicle at about $1,500.00, but it is in need of substantial repair. She has furniture and effects valued at approximately $2,000.00. Her expenses are approximately $522.00 per week and almost equate to her income of $529.28 per week. Legal principles 19 The Family Provision Act 1982, s 7 provides that if an applicant is an eligible person, the court may order such provision to be made out of the estate of a deceased person as, in the opinion of the court, having regard to the circumstances at the time the order is made, ought to be made for the maintenance, education or advancement in life of the eligible person. Mr Charlesworth is an eligible person. The term is defined in s 6(1) to include a child of the deceased. 20 The Family Provision Act 1982, s 7 is subject to the operation of s 9. Relevantly for present purposes, s 9(2)(a) provides that the court will not make an order in favour of an eligible person unless it is satisfied that the provision (if any) made in favour of the eligible person by the deceased either during the deceased's lifetime or out of the deceased's estate is, at the time the court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person. 21 The principles to be adopted in applying these provisions are well known. In Singer v Berghouse (1994) 181 CLR 201 at 208, the High Court stated that the provisions required the court to carry out a two-stage process. First, the court must determine whether the applicant has been left without adequate provision for proper maintenance, education and advancement in life. Secondly, if that determination is made in favour of the applicant, the court has to decide what provision ought to be made out of the estate. At 209 the High Court said that concepts of moral duty or moral obligation were not of useful assistance in elucidating the statutory provisions and might well amount to a gloss on the statutory language. 22 That approach was questioned by three members of the High Court in Vigolo v Bostin (2005) 221 CLR 191 at [15], [115]-[117] where their Honours expressed the view that considerations of moral claims and moral duty are useful as a guide to the meaning of the statute. There was no suggestion by the court that the two-stage process enunciated in Singer should be abandoned. 23 It was submitted on behalf of Mr Charlesworth that the deceased had a moral obligation to provide for him. He had not and, in light of his needs, and the value of the estate that, after the discharge of the costs of both parties of about $50,000.00, will stand at approximately $135,000.00, the entirety of that amount should be made available to Mr Charlesworth. 24 In Pontifical Society for the Propagation of the Faith v Scales (1961-1962) 107 CLR 9, the High Court concluded that there was no case to make an order under the Testator's Family Maintenance Act (Qld) for an adult son who had made no contact with his father for 46 years. At 18, Dixon CJ said: " 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. " 25 Reference was made to Gorton v Parks (1989) 17 NSWLR 1 in which the deceased had deserted his family shortly after the birth of his fifth child. Three of the children formed some sort of the relationship with the deceased but two had none. The deceased left his estate to two of the children in unequal shares. Four of them applied for provision or increased provision out of his estate. Bryson J concluded that the applications ought to be granted. At 9-10, having cited the observation of Dixon CJ in Scales, his Honour said: "The observations which I last cited seem to involve a view of the moral obligations of a parent which differs I would think from the almost universal view of the Australian community; the view involved seems to have been that the moral obligations of a parent can be limited, and can possibly be escaped, by steadfastly maintained repudiation or evasion. 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 dismissed 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." 26 It was submitted that a disable person such as Mr Charlesworth had a greater call upon the moral obligation of the deceased than was the case of the children in Gorton. 27 But as Hamilton J said in Lo Surdo v The Public Trustee [2005] NSWSC 1186 at [63] the bare fact of paternity does not of itself generate a right, but is to be considered in the context of the whole relationship between the parties. 28 In Walker v Walker, NSWSC, 17 May 1996, unreported, Young J analysed the decisions where the key factor was the bare fact of paternity. At [30]-[31] his Honour rejected the approach that all an applicant had to do was to prove that he or she was an eligible person and that he or she reasonably needed more financial assistance. His Honour said that the cases showed that 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 the testator ought to have made provision or further provision for the applicant. His Honour went on to say that although it was not much mentioned in recent decisions the older authorities often mentioned the fact that the statute did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally. 29 That observation was endorsed by the Court of Appeal in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [111], Ipp JA, with whom the other members of the court agreed, adding at [112] a rider that often where an applicant was a person within the Family Provision Act 1982, s 6(1)(a) or s 6(1)(b), proof that the applicant was a person in need would be sufficient. His Honour accepted, however, that there must be a full investigation into all the facts and circumstances. 30 In Nichols v Hall [2006] NSWSC 1377, Young CJ in Eq rejected an application by an adult son who met his father for two days only when he was 36 and, apart from less than a dozen telephone calls, had no contact with him in the year before his death. His Honour returned to his analysis in Walker and reiterated, at [38], what he had said: "The fact of paternity is something to take into account, but it must be taken into account with all the other facts and circumstances of the case and the question asked, would the community think in all the circumstances that a wise and just testator should have made provision for his child?" 31 In Singer at 210, the High Court said that the first question must be judged 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 had legitimate claims upon his or her bounty. 32 It should be noted, however, as Kirby P said in Golosky v Golosky, NSWCA, 5 October 1993, unreported, that consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. Resolution of issues 33 That Mr Charlesworth is a disable person and son of the deceased weigh heavily in his favour as an expected object of testamentary beneficence. But those factors must be weighed against the claim of Ms Herring. Mrs Herring and Ms Herring constituted a surrogate family of the deceased to whom he owed moral duties. Mr Charlesworth having had no contact with the deceased from the age of six and his mother and his sister having had no contact and having not encouraged Mr Charlesworth to have any contact with the deceased, notwithstanding that their houses were separated by just 13 kilometres, leads me to the view that a wise and just testator would not have made provision for Mr Charlesworth bearing in mind the needs of Ms Herring and the relative smallness of the estate. 34 In my view, Mr Charlesworth has failed to establish, in terms of the first process, that he has been left by the deceased without adequate provision for proper maintenance, education and advancement in life. 35 There does not seem to me to be any reason why costs should not follow the event in this case. 36 I dismiss the summons. I order the plaintiff to pay the defendant's costs.

Charlesworth v Herring

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