The plaintiff's mother, Veronica Coomber
38 Veronica Coomber and Katherine moved to Balranald in April 2006 where Veronica purchased a property for $114,000. She used existing funds to purchase the property including $80,000 given by her mother which she feels obliged to repay if her mother ever needed it. Her other assets consist of superannuation worth $49,063 which she cannot access at this stage. She has a vehicle worth $5,000. Her health is not good as she suffers from ischaemic heart disease. She suffered a cardiac arrest when she was 36 years old. She is on medication for blood pressure and suffers from depression which is managed by taking Arapax. She also has problems with diabetes and has an under active thyroid. Veronica has not returned to full-time work due to her depression. She has a small workers compensation claim which will support her over the next few months. She has had casual work of about 2 hours a week and she might be able to obtain some further part time work. At the present time Veronica receives payments from Centrelink of $624.54 a fortnight. Expenses for Veronica and Katherine are estimated at $702 a fortnight.
39 When considering the claim of the plaintiff it is also necessary to consider others having a claim on the bounty of the deceased. The position of the beneficiaries in the estate of the late Bruce Geoffrey Thomas must be considered by the Court. There are, amongst the six beneficiaries, four nephews of the late Margaret Thomas and two close family friends who were friends of the mother Margaret Thomas for over 30 years. There is no evidence of any relationship between them and the deceased although I would infer that there was some contact between them having regard to the family background. The financial situation of the beneficiaries was put forward by the executor, Mr Peter Douglas Bartlett in his affidavit in these terms:
"Peter Douglas Bartlett
I am aged 67 and have never married. I am unemployed and receive the age pension of 517.90 a fortnight which is my sole source of income. I suffer from an arthritic condition. I own my own house at 14 Riley Street Woolloomooloo which I acquired after a lifetime employment in various industries and administrative positions.
Graham Bartlett
Aged 57 years married with one child an 11 year old daughter. He is unemployed. His wife suffers from chronic heart condition and schizophrenia They receive a chronic disability pension of $1,150.16 a fortnight and he acts as her carer. He recently acquired the house at Balranald formerly owned by the deceased Margaret Thomas which he purchased from the legacy in her will.
Colin David Bartlett
Aged 63 years. Married with grown children.
He and his wife receive a combined disability pension of $861.20 a fortnight. They reside in a mobile home and pay site fees of $150 a fortnight.
John Ivor Bartlett
Aged 61 years. Unmarried. Casual employment only in the hospitality industry. No regular employment and dependent on casual work. Owns his own house in Brisbane
Keith and Cynthia Gorrinqe
Both aged about 59 years. Both on disability pensions through work related injuries to their backs. Reside in Adelaide and own their own home. They have a mortgage of $80,000. Their combined pension is $760 a fortnight.
40 I reserved the question of the admissibility of the evidence given in respect of persons other than the executor, Mr Peter Douglas Bartlett. Given the relationship between Mr Peter Douglas Bartlett and the other persons I admit the evidence to avoid undue expense and delay in respect of what are unlikely to be controversial facts.
41 It is of course necessary to see how the plaintiff is said to have been left without adequate and proper provision for her maintenance, education and advancement in life.
42 In her affidavit evidence Katherine's mother, Veronica Coomber, identified a number of matters which she says are necessary for Katherine's support and education. These are:
Music lessons at $40 a week for 4 years $ 8,320
Orthodontic treatment $ 8,000
Private schooling 3 years senior school $48,000
Total $64,300
43 In addition there is a small amount in respect of the income of Katherine's mother to make up the shortfall for the next four years until she turns 18 years of age of $ 77 per week. The multiplier on the 5% tables is 231.5 for 5 years making a sum of $17,825.50.
44 The only further matter which may possibly need to be addressed is support for Katherine if she does decide to undertake tertiary studies. Although her mother expressed a view that she would like to be able to undertake tertiary studies there is nothing in the evidence as to Katherine's wishes although it probably would be likely if her present progress continues at school. The evidence before me did not address these costs in detail and it is to be remembered that there are provisions for the Commonwealth to pay university fees and for students to repay the fees at a later stage.
45 Bearing in mind that Katherine may have to leave Balranald to do any tertiary education and using as a rough guide the costs of secondary education, one could allow a further $100,000 for this cost. Allowing for something for contingencies the most favourable outcome on the present evidence for the plaintiff is an award in the area of $200,000 to $250,000.
46 I have earlier referred to the extent of the contact between the plaintiff and the deceased. This raises the question of what effect this might have on the plaintiff's claim.
47 Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person "it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person."
48 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows:
"This conclusion directly raises the question of whether the word "ought" in s.7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator's Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.
…..
It seems plain from the comparison of the two Acts, and particularly from s.3 of the 1916 Act and s.7 and s.9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.
The Act draws a distinction between the eligible persons referred to in par(a) and par(b) on the one hand and par(c) and par(d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased's person spoken of in s.3 of the 1916 Act and s.7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased.
In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin J both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that "many cases suggest that an applicant must show a moral claim …", he went on to say that this was a gloss on the Act and was unwarranted and inconsistent with the language of the legislative scheme.
It seems to me that the introduction into s.7 of the present Act of the word "ought" in replacement of the words from s.3 of the 1916 Act "as the Court thinks fit" shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word "ought" seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par(c) and par(d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par(a) and par(b) although it is unnecessary to decide that in this case."
49 Meagher JA (NSWLR at 570) agreed with Priestley JA.
50 Meagher JA had previously expressed a view in Hughes v Hughes, Court of Appeal, unreported 6 June 1989 (an adult daughter case) that the duty arose to make provision as established in that case as follows:-
"Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right , but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be." (Emphases added).
51 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.
52 In Benney v Jones, Mahoney JA at 560 said:
"Whether an order should be made raises (as it has been
described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1.
"Where the applicant is a member of the deceased's family, as referred to in the earlier paragraphs of s.6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear."
53 In Gorton v Parks (1989) 17 NSWLR 1 at 7 ff, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, His Honour noted:
"It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation:"
54 Bryson J also rationalised the decision of 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."
55 At 17 NSWLR 1 at 9-10, 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 acknowledgment 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 acknowledgment or legitimacy. The idea that acknowledgment 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."
56 Bryson J in any event distinguished Scales case (p 11) on the basis that on the facts before him the plaintiffs,
"In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. .."
57 In Walker v Walker (unreported 17 May 1996), Young J reviewed the question of moral duty. His Honour reviewed Gorton's case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows:
"In Singer's case , a widow who had been married less than one year to a 68 year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at page 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that "we doubt this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to "moral duty" or "moral obligation" may well be understood as amounting to a gloss on the statutory language". They then say "the determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. 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."
58 Young J also observed:
"In Fraser's case, Kirby P at p29 said that "I do not consider that it would be safe for this court, or other courts in this state, to disregard the obita dicta in Singer v Berghouse concerning "moral duty". However, His Honour's decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law "either by the observations of the majority in Singer or by the High Court's reference, in the footnote, to what Murphy J said earlier (p27)."
"Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words "moral claim" in decisions under this Act.
"Sheller JA again did not consider that the High Court's suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p42 "the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant's case but not alone sufficient to justify an order in the claimant's favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order."
59 The concerns expressed about any change in the law as a result of Singer v Berghouse were recently put to rest by the High Court in Vigolo v Bostin [2005] HCA 11 at 25, 74-75 and 121.
60 In Walker v Walker, (p 27) Young J noted:
"It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.
The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.