Charlwood v Charlwood

Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 Meres v Meres [2017] NSWSC 285 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R v Registrar of Melbourne County Court [1927] VLR 406; (1927) 33 ALR 270 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Rappard v Williams [2013] NSWSC 1279 Re Buckland, Deceased [1966] VR 404 Salmon v Osmond [2015] NSWCA 42 Saravinovska v Saravinovski (No 5) [2015] NSWSC 128 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan & Anor; Palffy v Rogan & Anor (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431; [1980] HCA 14 Wilcox v Wilcox [2012] NSWSC 1138 Category: Principal judgment Parties: Mr Mark William Charlwood (first Plaintiff) Ms Thi Thanh Hong Luu (second Plaintiff) Mr Graeme Thanh Charlwood by his tutor Thi Thanh Hong Luu (third Plaintiff) Mr George Albert Thanh Charlwood by his tutor Thi Thanh Hong Luu (fourth Plaintiff) Mr Graeme Desmond Charlwood (Defendant) Representation: Counsel: Mr J Trebeck (Plaintiffs/Cross-Defendants) Mr L Ellison SC (Defendant/Cross Claimant)

Solicitors: Herbert Weller (Plaintiffs) Glass Goodwin Solicitors (Defendant) File Number(s): 2016/152754 Publication restriction: Nil

The Claims

1. HIS HONOUR: William Albert Charlwood ("the deceased"), died on 19 May 2015. On 5 August 2015, this Court granted Probate of the deceased's Will, made on 6 November 1997, to his son, Graeme Desmond Charlwood, the executor appointed therein, and the Defendant named in these proceedings.
2. In the Will, after the Clause revoking all prior wills and testamentary dispositions, the deceased gave the whole of his estate to his two sons, Mark William Charlwood and the Defendant, in equal shares as tenants in common. Accordingly, under the terms of the deceased's Will, they share, equally, the deceased's estate.
3. Mark Charlwood was not satisfied with the provision made for him in the deceased's Will, and with his wife, Thi Thanh Hong Luu ("Hong"), and their two children, Graeme Thanh Charlwood, and George Albert Thanh Charlwood, commenced proceedings, by Summons, filed on 18 May 2016, in which each made a claim for additional provision, or provision, respectively, by way of a family provision order, out of the deceased's estate and notional estate pursuant to the Succession Act 2006 (NSW) ("the Act").
4. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, for the maintenance, education, or advancement in life, of an eligible person. The relief sought included an order that the costs of the proceedings be paid out of the estate.
5. Without any undue familiarity, or disrespect intended, and for convenience, I shall refer to family members, after introduction, by her, or his, first name. I shall refer to Mark and Graeme by the role played in these proceedings.
6. At the commencement of the hearing, counsel for the Plaintiffs, Mr J A Trebeck, informed the Court that only the claim, by Mark, for a family provision order, would be proceeding and that each of the other Plaintiffs "will not be pressing the claim", respectively, for a family provision order: T1.36 - T1.40.
7. The Defendant, naturally, did not oppose the dismissal, or the discontinuance, of that part of the relief claimed by three of the four Plaintiffs. However, as the other Plaintiffs are named as Cross-Defendants in the claim for possession brought by the Defendant, to which I shall refer, the proceedings by each could not be dismissed, or discontinued, immediately. It will be necessary to make an order dismissing the part of the proceedings brought by Hong, Graeme and George for a family provision order.

The Cross-Claim

1. In late November 2015, the Defendant's then solicitors, Gerard Malouf and Partners, wrote a letter dated 26 November 2015, to the Plaintiff's then solicitors, requesting that the Plaintiff, and his family, vacate possession of the property owned by the deceased at Austral ("the Austral property") by 23 December 2015. (Austral is a suburb of Sydney, about 42 kilometres south-west of the Sydney CBD, in the local government area of the City of Liverpool.)
2. The Plaintiff and his family did not abide the request made on behalf of the Defendant and have remained in occupation of the Austral property since then, despite appearing to have no legal basis upon which to do so.
3. The Defendant's solicitors wrote, on 17 March 2016, to the Plaintiff's solicitors, again, requesting that the Plaintiff and his family to vacate possession by 31 March 2016. In this letter, they threatened to commence proceedings to obtain vacant possession of the Austral property.
4. Once again, the Plaintiff and his family did not vacate the property. On 18 May 2016, as earlier stated, they commenced these proceedings. On 25 August 2016, the Defendant filed a Cross-Claim seeking an order for possession of the Austral property, and making a claim for arrears of rent, mesne profits until delivery of possession, and costs. All of the then Plaintiffs were identified as Cross-Defendants.
5. The Plaintiffs/Cross-Defendants filed a Defence on 23 September 2016 in which they raised a number of defences, the substance of which was that they had remained in occupation of the Austral property with the consent of the deceased and that they were not required to pay any rent, or occupation fee, at any time.
6. It is not necessary to refer in more detail to the nature of the defences as it is agreed that the Austral property must be sold: T96.23 - T96.25. At the hearing, the Defendant agreed that the Cross-Defendants would not be required to pay any rent, or occupation fee, calculated from the date of death of the deceased, for their continued occupation of the Austral property. He also agreed that the Plaintiff could receive the contents of the Austral property. He also agreed that, if the Plaintiff required a rental bond to be paid after the Cross-Defendants vacated the Austral property, the amount of the cash in bank could be made available to him, as an advance on the provision made for him in the Will of the deceased, for that purpose: T135.10 - T135.19.

A Preliminary Matter

1. Although it is no longer as significant as it might have been, it is next convenient to identify a procedural matter that could have been important had the claims for a family provision order by Hong, Graeme and George proceeded.
2. Each of Graeme and George is a person under a legal incapacity (a minor). For unknown reasons, Hong was named in the Summons as the tutor for each of them even though she was then a Plaintiff also.
3. The Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), rule 7.15(2)(c), provides that "any person (other than a corporation) is eligible to be the tutor of a person under legal incapacity, in respect of any proceedings, unless the person … is a person who has an interest in the proceedings adverse to the interests of the person under legal incapacity".
4. UCPR rule 7.16 provides that "a tutor may not commence or carry on proceedings on behalf of a person under legal incapacity unless there have been filed (a) the tutor's consent to act as tutor and (b) a certificate, signed by the tutor's solicitor in the proceedings, to the effect that the tutor does not have any interest in the proceedings adverse to that of the person under legal incapacity".
5. UCPR rule 7.18(1)(b) permits the Court to remove the party's tutor and appoint another tutor. Rule 7.18(3) provides that "if the Court removes a party's tutor, it may also stay the proceedings pending the appointment of a new tutor".
6. On 18 May 2016, the consent to act as tutor was filed. It was in the form approved by the Uniform Rules Committee for use in civil proceedings in this Court. Within that consent, after the signature of the tutor, was a certificate, signed by a solicitor, Quyen Tu, that Hong "does not have an interest in the proceedings adverse to the interests" of Graeme and George.
7. In Rappard v Williams [2013] NSWSC 1279, I noted, at [68], that the Court's approval of a nominated tutor is not required, other than where it is sought to substitute one tutor for another (UCPR, r 7.15(5)). However, the Court retains overall supervision over a party's conduct of proceedings through a tutor: Coffey v Coffey (No. 2) [2015] NSWSC 338 at [4] (Slattery J).
8. I also noted, at [69], that a person not being under a personal incapacity to sue, not being an accounting party, not having an interest adverse to the person under a legal incapacity and not relevantly connected with any other party to the proceedings may be a tutor: R v Registrar of Melbourne County Court [1927] VLR 406; (1927) 33 ALR 270. I reiterated that a tutor represents the person under a legal incapacity and does not pursue a personal interest in the proceedings.

Formal Matters

1. The following outline of the factual background records my findings of fact based on unchallenged evidence, or where I am satisfied that the background fact is established on the balance of probabilities.
2. The deceased died on 19 May 2015, aged 90 years.
3. The deceased was married to Dorothy May Charlwood, but she predeceased him, having died on 26 September 1997. There were two children of their marriage, namely, the Defendant, who was born in October 1951, and who is 65 years old, and Mark, who was born in April 1958, and who is 59 years old.
4. The deceased and Dorothy purchased the Austral property sometime between 1985 and 1987. The land size of the property is about 923 m2, and on it is built a 4 bedroom detached brick veneer dwelling, with one bathroom, a sunroom, a lounge, internal laundry, kitchen and dining room. There is an attached double lock-up garage. Ancillary improvements consist of a concrete track driveway, basic turf and landscaping, metal fencing, side gates, a clothes line, and a garden shed. The condition of the residence is described as "poor", "with numerous maintenance issues noted … and can be relatively easily remedied but they do detract from the subject's appeal".
5. The Plaintiff was married, for the first time, probably in the 1980's, but he was unable to remember when that marriage had taken place. In his affidavit, he wrote that the marriage had been dissolved in about the mid 1980's. There were no children of the marriage: T19.04 - T19.14.
6. Following the breakdown of his marriage, the Plaintiff returned to live with his parents. He lived with them for a period of time, but then moved out again.
7. The Plaintiff and Hong were married in March 2005. She was born in Vietnam, in June 1980 and is now 37 years old. She and Mark had been introduced to each other in about 2002, although they did not meet face to face until he travelled to Vietnam, in 2003. Until then, they had only corresponded by letters. They had a traditional Vietnamese wedding first, in Vietnam, following which Hong came to Australia.
8. There are two children of their marriage, being Graeme, who was born in January 2006, who is 11 years of age, and George, who was born in September 2008, and who is nearly 9 years of age.
9. The deceased died leaving an estate in New South Wales. In the Inventory of Property attached to, and placed inside, the Probate document, the estimated, or known, value of the property owned solely by the deceased, in New South Wales at the date of death, was disclosed to be $796,315. The estate was said to consist of the Austral property ($721,000), shares in IAG ($5,697), household furniture and effects ($3,400), a car ($2,375), and money in a bank account ($69,618).

The Witnesses

1. The Plaintiff, Hong and the Defendant were cross-examined. Although there were not very many facts in issue, it is necessary to mention my findings upon the evidence given by each of them.
2. It is clear that the Plaintiff suffers from a number of medical issues that have resulted in an impaired ability to answer some of the questions put to him in cross-examination. To the extent that he did do so, I am satisfied that he answered the questions to the best of his ability, and that he did so endeavouring to tell the truth.
3. For example, the Plaintiff did not prevaricate when shown a copy of a Statutory Declaration sworn by him in 2007, in which he had stated that he and Hong had lived in the Austral property since 13 February 2005, rather than in 2006, as he had asserted in his affidavit: T22.20 - T22.30. He also accepted that by at least 1 July 2013, his business, which involved selling jewellery at a stall at Flemington markets, had ceased to operate: T23.42 - T23.44.
4. The Plaintiff could not remember whether he had made a loan application for $350,000, following the death of the deceased, but, when shown a copy of the application, accepted that he had done so, but that he and Hong had not taken up the loan that was subsequently offered.
5. The Plaintiff maintained, more than once, that he left all financial matters to Hong. For example, when asked, if the loan had been obtained, whether the plan was to rent out the Austral property or to live there, he said "I would leave that up to Hong", but then he added: "…now you are saying that, Dennis Morgan around the road did say we could have moved in with him, so it is possible. I am not sure, it is possible": T28.12 - T28.16.
6. The Plaintiff also said that "I don't handle the money because I can't handle it, I spend too much and if it is in my pocket I spend it, so my wife looks after all the money": T31.21 - T31.22. He also said that he did not handle the bank account, although it was in his name, and as he put it, at T33.09 - T33.21, and again, at T34.04 - T34.11: "…you can question me all day on the St George accounts, I haven't got a clue what goes in, what goes out, my wife handles it. So I don't even look at statements, she has the card on her, I don't have the card. I haven't got a clue about the accounts. Q. So, whatever goes in you don't know about? A. Yep. Q. Whatever comes out you don't know about? A. I don't worry about it, I don't know. Q. You don't know about dates or amounts or purposes? A. That's right. … Q. Does your wife handle all the expenses and the running of the household? A. Yes. Q. Therefore it's [of] no use me asking you about petrol, telephone, health insurance, school or anything? A. That's correct. Q. If I was to ask you, you know nothing? A. That's correct."

Claim for a Family Provision Order

1. I shall next discuss the statutory scheme and what I have described as general principles. I have discussed these matters in many cases. For the benefit of the parties, I shall refer to part of what I have referred to. Where necessary, I shall add other relevant principles.

Eligibility

1. The key provision of the Act is s 59. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1): s 59(1)(a).
2. There is no dispute that, as a child of the deceased, the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act. The language of the relevant sub-section is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on an eligible person making an application.

Whether adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made provision in Will

1. Since eligibility is established, the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased: s 59(1)(c). Only then may "the Court … make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made": s 59(2).
2. "Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34] (Basten JA, with Allsopp P and Ipp JA agreeing), that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
3. Whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, education or advancement in life of an applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant, or applicants, on the one hand, and the applicant's "needs" that cannot be met from his, or her, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P).
4. Although the existence, or absence, of "needs" which the applicant cannot meet from his, or her, own resources will always be highly relevant and often decisive, the statutory formulation, and, therefore, the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his, or her, proper maintenance, education and advancement in life: Singer v Berghouse (1994) 181 CLR 201 at 227 (Gaudron J); [1994] HCA 40.
5. "Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between these words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."

Qualifications on "Principles"

1. As long ago as 1980, in White v Barron (1980) 144 CLR 431 at 440; [1980] HCA 14, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
2. As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. They may give some assistance and provide some guidance.
3. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, fetter the Court's discretionary power.
4. It is necessary for the Court, in each case, after having regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
5. The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox at [18]-[20] and at [66]-[67] (Basten, Barrett and Gleeson JJA); and in Burke v Burke [2015] NSWCA 195 at [84] - [85] (Ward JA, with whom Meagher and Emmett JJA agreed). They must be remembered.

Additional Facts

1. I next set out some more facts by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

1. The Plaintiff is a child of the deceased. He grew up living with the deceased and other family members. He left school at the age of 15 years and began working as a trainee auctioneer. On a date not disclosed, but upon the dissolution of his first marriage, he moved to the Austral property and lived with his parents. He seems to have moved out for a few months in about 2000, but then returned to live with the deceased at the Austral property.
2. I have earlier referred to the statutory declaration made by the Plaintiff in which he had stated when he and Hong commenced living with the deceased. In any event, it is clear that following the deceased's hospitalisation, in March 2006, they were living in the Austral home. They have lived there since then, firstly with Graeme, and then also with George.
3. I accept that Hong bore the greatest part of looking after the deceased. She says, and I accept, that she cooked for the family, including the deceased, even though she worked part time. When the deceased's health deteriorated, the Plaintiff and Hong took even greater responsibility in looking after him. The Plaintiff would have to give the deceased enemas and would change his colostomy bag. Later, he would have to wash the deceased.
4. Hong also did his washing and cleaned the house. Both the Plaintiff and Hong drove the deceased to medical appointments, to the hospital and to run general errands. Hong would organise his daily medication.
5. For his part, the deceased is said to have "looked after most of the household expenses. He paid most of the household expenses in cash", although "some of the bills came out of his bank account on a direct debit".
6. I am satisfied that the deceased and the Plaintiff had a close family relationship throughout the Plaintiff's life until the deceased's death.

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

1. There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers to in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound.
2. The responsibility of a testator was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478 - 479: "Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father."
3. Yet, the Act does not expressly refer to, or identify, any "moral duty". However, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities to not only the applicant, but also to the beneficiary or beneficiaries. There is a balancing of potentially competing obligations.
4. Leaving aside any obligation, or responsibility, arising as a result of the relationship as parent and child, the deceased did not have any legal obligation to either of his children, once they became adults, imposed upon him by statute or common law.
5. Yet, an obligation or responsibility to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730 at [32] (Rodney Hansen J); (2003) 22 FRNZ 1035; the origin of the obligation which underpins the recognition of the duty owed by a parent to a child in the equivalent Act in New Zealand was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

1. The Act does not mandate separate approaches depending upon the nature and extent of the deceased's estate. Without deducting the costs of the proceedings, the estate is of a reasonable value (about $1 million). It will be reduced, by the incidence of costs. However, as stated earlier, the size of the estate is but one factor that may be taken into account in determining whether to make a family provision order and the nature of any such order.

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

1. The Plaintiff left school at the age of 15 years. In 1999, he was involved in a very serious car accident and it appears, from that time, he has not been in regular, or full-time, employment.
2. The Plaintiff did not set out his financial and material circumstances other than in an affidavit sworn on 22 June 2016. Hong, however, included information about the family's financial and material circumstances to which I shall refer.
3. As stated, Hong was not a very impressive witness. However, there cannot be any real dispute that the Plaintiff has very little by way of available assets. The major asset is a car (about $14,000); the pearls to which reference has been made ($3,553); and some cash in bank (about $500). They have virtually no superannuation.
4. Other than the costs of the proceedings, the Plaintiff does not suggest that he, or Hong, have any liabilities.
5. The Plaintiff has little, if any, remaining earning capacity and suffers from various medical conditions to which I shall refer.
6. Senior counsel for the Defendant stated at the commencement of the submissions that "I'm not going to say that in respect of the Plaintiff that he has any particular earning capacity or that he will go off social security at any particular time in the future. I think he said he can do a little thing, but he will stay on social security". Nor did the Defendant challenge the evidence going to the medical conditions of either the Plaintiff or of Hong.
7. The Plaintiff and Hong, between them, receive $2,068, per fortnight, by way of pensions ($1,149 and $919 respectively). The combined income is sufficient to meet their expenses (either as set out, or as reduced as a result of the cross-examination of Hong, such as by reference to payment for a motor vehicle registration and licences (Ex. 3)).
8. Of course, the Plaintiff and Hong have to raise two children. In about 2010, Graeme was diagnosed with high functioning autism. He excels at maths but he can barely put sentences together in writing, cannot express his feelings, and he struggles with basic tasks, such as getting dressed, or unlocking the door to get in the house.

(e) if the applicant is cohabiting with another person - the financial circumstances of the other person

1. Hong does not have any property of her own of any significant value. I have referred to her income. She does have a greater earning capacity than the Plaintiff, but it is to be remembered that she is the primary caretaker of not only Graeme and George, but also of the Plaintiff.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

1. The medical evidence relating to the Plaintiff, which was not the subject of any real dispute, reveals: "His medical history includes long-standing Type 1 Diabetes Mellitus on insulin, hypertension, hypothyroidism, osteoporosis with previous multiple fractures, osteoarthritis, bilateral knee replacement, obstructive sleep apnoea, chronic pain, previous intra-abdominal surgery, and a motor vehicle accident in 1999 resulting in multiple fractures, carpal tunnel syndrome, ruptured liver and spleen and collapsed lung. He has a history of head injury at age 19 when he fell off a horse and lost consciousness for four hours with a reported post-traumatic amnesia of three days. In addition, he sustained a previous head injury at age 13 when the car he was travelling in hit a guide post on the side of the road and left him unconscious for some time. Current medications include amiodipine/valsartan 10/160mg.daily, lantus 100 units daily, Humalog 100 units daily, pregabalin 75mgms daily, tramadol SR 200 mgms.bd, thyroxine 200mcg daily, and sertraline 50mg daily. Mr Charlwood was referred for neuropsychological assessment to determine his cognitive functioning and assist in diagnosis. Investigations including MRI of brain and Ceretec cerebral perfusion study were performed. MRI performed on 17 November 2015 revealed prominence of the ventricular system and cerebellar sulci with global atrophic changes. There were also scattered age related deep white matter ischaemic changes. Ceretec cerebral perfusion study on 4 May 2016 was reported to be consistent with vascular disease, multiple head injuries, and depression. In addition, early Alzheimer's disease was not excluded. … Mr Charlwood was estimated to be of average premorbid intellectual ability. On assessment, he was oriented in place and generally oriented in time (he knew the year but not the date). Immediate memory was inefficient and unreliable as was his ability to manipulate material in working memory indicating fragility of attentional processes. Routine mental operations were performed well on the simpler tasks (e.g., reciting the days of the week backwards) but deteriorated on more complex tasks requiring mental tracking. Speed of information processing was visibly slowed when the task at hand became more complex. … Mr Charlwood's neuropsychological profile reveals reduced performances in learning and memory, particularly for complex verbal and visuospatial information. In addition, his attention and working memory is inefficient and unreliable, and he becomes overwhelmed when the task at hand (or events in his daily life) become slightly complex. For example, he is slow when trying to work through problems of any complexity, he often misplaces things, 'forgets to remember' things and gets easily muddled when trying to keep track of two or more ideas simultaneously. These problems are confirmed by his wife who reports that he repeatedly asks the same question even though he has been given the answer on each occasion (for example, "where are we going today"), and when told that he needs to take his lunch with him (due to poorly controlled diabetes), he will forget that he is going out and will put the food on a plate rather than in a container. Behaviourally, Mr Charlwood exhibits poor frustration tolerance and difficulties inhibiting his immediate impulses in reaction to perceived outside pressure. This was observed by members of the medical staff in the hospital setting, and is indicative of frontal systems disturbance. The profile is consistent with vascular cognitive impairment coupled with the residual effects of multiple traumatic brain injuries. Other differential diagnoses which implicate Alzheimer's disease (as noted on SPECT cerebral perfusion study) cannot be completely ruled out and will require a repeat study in 12 months to confirm the progression of these perfusion defects. On a more practical level, the test results indicate that Mr Charlwood is unable to perform successfully in a work situation. His deficits in learning and memory will cause him serious difficulties in many situations and his reduced attentional capacity may cause him to make careless or unexpected errors. In addition, his reduced frustration tolerance and poor impulse control may have deleterious consequences."

(g) the age of the applicant when the application is being considered

1. The Plaintiff is 59 years old (Hong is 37 years old).

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

1. The Plaintiff, and Hong, each made a significant contribution to the welfare of the deceased. I have set out the contribution of each earlier. In addition, in the last 3 years, the Plaintiff made one gift to the deceased in an amount of more than $1,000, being the cost of a hospital bed that Hong and he purchased in about 2015 for $1,800.
2. The Defendant's wife, Wendy, gave evidence by affidavit, on which she was not cross-examined, about events in 2012 and then again, at about the time of the deceased's 90th birthday. I do not consider that these events, which do not paint the Plaintiff in the best light, impact in any significant way upon the contribution made by the Plaintiff and Hong, overall, to the deceased.
3. (There is evidence that the Plaintiff has been at risk of impulsive actions and emotional dysregulation when stressed due to reduced frustration tolerance from his cognitive disorder.)

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

1. I am satisfied that the deceased made significant provision for the Plaintiff and Hong from at least 2005 or 2006, from which time they, and subsequently, with their children, have lived rent free in the Austral property. I have noted, also, that the family has continued to do so since the death of the deceased. This has provided the Plaintiff with a significant additional benefit.
2. I have also referred to the fact that the deceased made a significant financial contribution to the household expenses, which included the expenses of the Plaintiff and his family. It appears that the Plaintiff did not contribute very much in this regard.
3. It must also not be forgotten that the Plaintiff receives one half of the deceased's estate.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

1. The statutory language permits the Court to take into account the deceased's expression of testamentary intentions, even though not incorporated in a properly executed Will.
2. As in many cases under the Act, there is evidence given by each side as to what the deceased said about his testamentary intentions. Of course, the best evidence of those intentions is his last Will.
3. Whilst there is evidence that the deceased told the Plaintiff and Hong that he wanted to ensure that the Plaintiff had the Austral property, the Defendant and his wife each gave evidence that the deceased told each of them that he did not want to change his Will. Neither was cross-examined on the topic.
4. Ms Jayne Foster, who was a witness called by the Plaintiff, and who was cross-examined, maintained that not long before his death, the deceased had said to her "Hong and Mark will be set up for life after I pass away. They will have the house".
5. Another witness, Ms Thi Ly Tran, called by the Plaintiff, and who was cross-examined, maintained that the deceased had told her that the Plaintiff and Hong looked after him very well; did everything for him and took care of everything in the house; and that "I want Mark, Hong and the children to have the house".
6. Mr Willmington, who was also cross-examined, refers to a conversation in which the deceased expressed his gratitude for all that the Plaintiff and Hong had done for him and that "I can never repay them. I want to leave them my house as a gift. Graeme is pretty well off and says he does not need it".
7. Finally, Mr Ronald White, another witness called by the Plaintiff, but who was not cross-examined, stated that he had been told by the deceased that "I am so happy with Mark and Hong and the boys being here. The house is theirs". And on another occasion that the deceased did not want them to leave.
8. There is no reason to disbelieve the evidence of these witnesses, none of whom is a party to the proceedings.

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

1. The Plaintiff asserts that the deceased "assumed responsibility for providing a home for my family (for which we did not pay rent, because we could not afford to) and also paying many of the household expenses…". I am satisfied that the Plaintiff was being maintained, at least partly, by the deceased before the deceased's death.

(l) whether any other person is liable to support the applicant

1. Apart from the Commonwealth government's responsibility to continue to provide him with a Disability Pension, Hong has an obligation, in law, to support him "to the extent that [she] is reasonably able to do so, if, and only if, [he] is unable to support [himself] adequately: s 72(1) Family Law Act 1975 (Cth).
2. I have earlier referred to NDIS support that the Plaintiff may be entitled to receive. Hong is receiving a carer's pension.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

1. I am satisfied that there is nothing in the character and conduct of the Plaintiff that is otherwise relevant.

(n) the conduct of any other person before and after the date of the death of the deceased person

1. I have referred to Hong's conduct before, and after, the date of the death of the deceased. I should also mention that each of Graeme and George, was a loving grandchild of the deceased. In this way, they, too, contributed to the deceased's welfare.
2. In relation to the Defendant, I am satisfied that there is nothing in his conduct that is otherwise relevant. Overall, whilst his relationship with the deceased may not have been as close as was the Plaintiff's with the deceased, I am satisfied that he had a reasonably close relationship with the deceased. The fact that the deceased did not alter his Will suggests that to be the case.

(o) any relevant Aboriginal or Torres Strait Islander customary law

1. This factor is not applicable.

(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered

1. There is no other matter that I consider relevant.

The Submissions

1. The Plaintiff's written Outline of Submissions included the following: "The … Plaintiff ought to be awarded further provision by way of the estate property. Alternatively, the … Plaintiff ought to be awarded some further provision."
2. However, at the hearing, counsel for the Plaintiff submitted that, even if Hong's evidence was found to be unreliable, the Court should still consider "the big picture, the income, the asset in the estate, whatever that might be, and the Court should not assume that there is any asset, apart from the pearls, that is in existence which might be available for the Plaintiff's use": T126.25 - T126.32.
3. Counsel for the Plaintiff seemed to accept that the evidence did not reveal that deposits into the Plaintiff's account were explained by withdrawals from Hong's bank account. However, he submitted "that the sins of the witness should not be visited upon … the Plaintiff".
4. I do not accept this submission since the Plaintiff made it clear that it was Hong who knew all about the financial circumstances and that he had left it to her to disclose those to the Court. Yet, I am prepared to accept that the Court must look at the whole picture to determine whether, even with the criticisms made of Hong's evidence, the Court is satisfied that the current financial and material circumstances of the Plaintiff have been revealed.
5. At the hearing, counsel for the Plaintiff submitted that an amount of between about $550,000 and $600,000 would be required to enable the purchase of alternative accommodation based upon the estimate of costs per square metre: T148.03 - T148.19. This would require an amount of $150,000 to $200,000 in addition to the estimate of the Plaintiff's entitlement under the Will.
6. Counsel submitted that this was a case in which "The circumstances of the Plaintiff himself are most unusual. The extraordinary level of his physical and mental disabilities require that his needs should be satisfied by a very high level of security of tenure": T130.36 - T130.39.
7. Counsel accepted that there was no evidence of the ability (or inability of the Plaintiff) to raise a reverse mortgage and "that reverse mortgages are a common feature of the landscape".
8. It was also submitted that the Plaintiff needed a capital sum for exigencies of life.

Determination

1. Being an "eligible person" is a necessary pre-condition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. As stated, the Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.
2. There is no dispute that the proceedings were commenced within the time prescribed by the Act.
3. The next question, then, is whether making the provision for the Plaintiff that the deceased did bespeaks inadequacy. As previously stated, a precondition to a family provision order being made, the Court must be satisfied that the deceased has not made "adequate provision for the proper maintenance ... or advancement in life of the person in whose favour the order is to be made".
4. A consideration of the deceased's Will, alone, would not suggest inadequate provision was made for the Plaintiff. The deceased divided his estate equally between his only two children. But, one cannot consider the terms of the deceased's Will on its own. One must consider many other facts. As Basten JA wrote in Chan v Chan at [22], the Court must remember: "A significant set of factors in many cases is that identified as "the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…". However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator."
5. Furthermore, this is not a case of an applicant adult child who has lived quite independently of his, or her, parent, the deceased, for many years, and who is in straitened circumstances. It is a case in which there was a history over many years, and also at different times, of the Plaintiff's dependence on the deceased for financial support, which the deceased provided to him, and to his family, by way of rent free accommodation and board, for many years before his death. Despite not changing his Will, the deceased seemed to realise the significance of that accommodation to the Plaintiff and his family.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2017