Cooper v Atkin

Court of Appeal (NSW)|2021-05-05|Before: Payne JA, McCallum JA, Hallen J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

THE COURT: Ms Kristi Cooper, the applicant, seeks leave to appeal from orders made by Hallen J dismissing a summons seeking a family provision order under Ch 3 of the Succession Act 2006 (NSW): [2020] NSWSC 828. His Honour described the case as "ruinous, and recriminatory, proceedings".
The applicant is an adult step-child of Terence Helgesen, the deceased, who died on 18 November 2017. Lynda Atkin, the respondent, is the deceased's sister. Without intending any disrespect, we will refer to the principal actors relevant to determining this case by their first names.

The primary judgment

The deceased was born in July 1938, in the United Kingdom, and he died in November 2017, in Port Macquarie, New South Wales, aged 79 years. Lynda was born in September 1948.
The deceased married Shirley Plater in 1960 and there were two children of their marriage, being Andrew, who was born in May 1966, and Vanessa, who was born in December 1972. The marriage of the deceased and Shirley ended in 1985.
The deceased lived in the United Kingdom but in 1984 visited Australia where he met the applicant's mother, Diane Holmes. Diane had been married to Victor Cooper, and the applicant is the only child of their marriage. The applicant was born in March 1963. The deceased and Diane married in February 1986 and remained married until Diane's death in August 2015, almost 30 years later. There were no children of their marriage.
The applicant lived with Diane and the deceased "in the 1980's before [she] went overseas". The applicant left to go overseas in about 1986.
Diane made a Will dated 6 July 2012 in which she left the whole of her estate to the deceased, save for a "silver belt" left to the applicant. While there was evidence at first instance that the applicant intended to make a claim for a family provision order against Diane's estate, she did not ultimately commence any proceedings.
The deceased left a Will dated 29 January 2016. In that Will, so far as is relevant, he revoked all former Wills and testamentary dispositions, appointed Lynda as the sole executrix and trustee of the Will, and gave the whole of his Estate, after payment of debts, funeral and testamentary expenses, as to 40 per cent, to each of Andrew and Vanessa, and as to 10 per cent to his granddaughter, and 10 per cent "to be divided between such of my grandsons as are living at the date of my death and [who] attain the age of 18 years and if more than one as tenants in common in equal shares".
The primary judge found that the net value of the Estate at the date of the hearing was $92,042. Including amounts that had already been distributed or paid, the value of the Estate would have been $189,343. The primary judge found that over $109,000 in estimated legal costs had been incurred by the parties in the first instance proceedings.
The applicant was an "eligible person" to apply to the Court for a family provision order under s 57(1)(e) of the Succession Act as she was a partly dependent member of the household of which the deceased person was a member (albeit for a short period of time).
The primary judge characterised the overall relationship between the applicant and the deceased thus: "[73] It is clear from the evidence that Kristi and the deceased did not have a close relationship. Kristi acknowledged as much in her first affidavit when she wrote that she 'did not have a strong relationship with [the deceased]'. She said that she was frightened of him. Her counsel described the relationship as 'tense at times'. I tend to think that this is an understatement."
The primary judge made further specific findings about the relationship between the applicant and the deceased: "[90] Police records reveal that there was 'continuing conflict between the [deceased] and the stepdaughter, Kristi'. That there was 'continuing' conflict was a matter disputed by Kristi. I do not accept her evidence that there was no long-seated animosity between her and the deceased. … [94] Kristi left Australia in May 2011 and did not return until shortly after Diane died in August 2015, when she attended her mother's funeral. The last time she saw the deceased was in September 2015 when she attended the Port Macquarie home to collect her, and some of Diane's, belongings. … [100] I accept, however, that my conclusions regarding the relationship between Kristi and the deceased is not solely determinative of the result of the proceedings."
The primary judge also had regard to the conduct of the applicant after the death of the deceased. The primary judge found that a series of emails sent by the applicant to Lynda revealed the applicant's true feelings about the deceased. His Honour said: "[113] Perhaps, the following email dated 20 May 2018 depicts the view that Kristi held: 'Lynda, It is clear to me now your brother [the deceased] was a pathetic human being. I think there is something very wrong with you too. You need to answer my questions and return my property. In other words, you need to speak with me. Don't lie to yourself thinking that you are in any position of control because you are not. And you shouldn't deceive yourself that you are in some way avenging your brother. You are not. All you are in fact doing and displaying is how fundamentally undecent and common you are, which is a position of social impotence, just like your brother's, and this is small, squalid and sad, just as he was. I am ashamed to know you because of how you have behaved. Nonetheless, you need to tell me what I ask and we have to communicate, however distasteful this may be.'"
The primary judge made the following findings relevant to whether the applicant's application for a family provision order was warranted: "[163] Although it is borderline, particularly considering what was written in Graziani v Graziani quoted above, I am satisfied that the deceased having inherited the interest of Diane as a joint tenant of the home in which they had lived is a factor which warrants the making of her application. … [165] I do not accept, however, that standing aside following the death of Diane and not seeking provision out of Diane's estate is such a factor in the circumstances of this case. Based upon the evidence, that Diane left the whole of her estate to her husband of many years, is hardly surprising, particularly in circumstances where her estate, and potential notional estate, was of small value. In this regard, the cases relied upon by Kristi's counsel may be distinguished. Kristi would be highly unlikely to have succeeded in any such application for provision."
In deciding whether an order for provision out of the deceased's Estate should be made, the primary judge concluded that: "[223] As stated above, claims for a family provision order present particular difficulties where the estate is so small and where there are several competing claims upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims and who is the chosen object of the deceased's bounty. [224] Furthermore, even a finding that Kristi was partially dependent on the deceased does not itself give rise to a statutory obligation to make provision for her. The question whether there are factors which warrant the making of the application is different to the question of whether she was, at any particular time, wholly or partly dependent upon the deceased, and also different from the further question which arises under s 59(1)(c) of the Act whether adequate provision for her proper maintenance or advancement in life has not been made by the deceased's will: Page v Page [2017] NSWCA 141 at [38]. … [232] The Court is required to make, and I have made, an assessment of Kristi's financial position, the size and nature of the deceased's estate, the relationship between Kristi and the deceased, and the competing claim of the beneficiaries, two of whom are the deceased's children, and the others who are grandchildren, who are the chosen objects of his bounty, and the circumstances and needs of both Kristi and each of the beneficiaries so far as they are known: see, for example, McCosker v McCosker (1957) 97 CLR 566 at 571 - 572; [1957] HCA 82 (Dixon CJ; Williams J and Kitto JJ); Singer v Berghouse at 210 (Mason CJ, Deane J and McHugh J); Vigolo v Bostin at [16], [75], [112] (Callinan and Heydon JJ); and Tobin v Ezekiel [2012] NSWCA 285 at [70], Meagher JA (Basten JA and Campbell JA agreeing). I have also taken into account that the deceased made a previous Will, in 2012, in which Kristi was one of the substitute beneficiaries in the event of Diane having predeceased the deceased. [233] Having considered those matters, Kristi has not satisfied the Court that adequate provision for her proper maintenance, education or advancement in life has not been made by the Will of the deceased. Importantly, this is not a case where there was a close relationship, that is one which might be properly described as parent and child, or where she was brought up as a permanent member of the deceased's family, or where she was ever a full-time member, as a child of the deceased's family. The evidence does not suggest that she was supported by the deceased, to any significant extent, educationally, or emotionally. On reviewing, particularly, the medical, evidence, that she was the daughter of his wife, led the deceased to simply acquiesce to Kristi's presence in their home, for those relevant periods. [234] Even if I am wrong in that conclusion, I would not, as a matter of discretion, make an order for provision out of the deceased's estate. In this regard, I have had regard to, amongst other things, the tiny value of the deceased's estate, the relationship between Kristi and the deceased, which, for many years prior to his death was virtually non-existent, as well as the relationship between the deceased, and his own children, each of whom has a significant legitimate claim upon the deceased's bounty. The deceased's grandchildren are the chosen objects of the deceased's bounty and their claims, as such, cannot be disregarded."

Application for leave to appeal

The applicant accepted that a grant of leave to appeal was necessary for her case to proceed in this Court. The draft notice of appeal contained 18 grounds: "APPEAL GROUNDS 1 His Honour did not exercise the discretion at Ch 3 of the Succession Act 2006 (NSW) in a manner compatible with contemporary community standards. 2 His Honour had before him probative evidence in the form of NSW Police records, an ADVO, a conviction and medical records indicating alcohol abuse, poor insight and a personality disorder, yet erred in reducing the cause of any relationship difficulty between the deceased and the Applicant to a hearsay matter of whether or not the deceased 'liked' the Applicant. 3 His Honour failed to advert to the 2011 ADVO as asserting a domestic relationship and to the s 35 orders of the ADVO addressing the deceased's alcohol abuse when considering the Applicant's case. His Honour failed to advert to the time prohibitions of AVOs / ADVOs. 4 His Honour erred in finding that the deceased's violence negated the Applicant's dependency upon the deceased as a member of her family and a person in control of her mother's (and grandmother's) welfare after the events of the 2000 AVO. 5 It was harsh and unreasonable for His Honour not to consider risk and the Applicant's safety and the safety of the other members of her family in all the circumstances of the second marriage. 6 His Honour erred by finding an instance of self-defence in 2011 to be violence on the part of the Applicant. 7 Because His Honour erred at s 59 of the Act he failed to consider specialist medical and Social Security evidence provided to him confirming that the Applicant is a person with a disability under s 60(f) of the Succession Act 2006 (NSW). 8 His Honour erred in law at s 59 by characterising the Applicant's needs, for reason of disability, as misfortune due to personal choice. 9 His Honour erred by failing to make an adequate order for provision when the appellant's age, financial circumstances, and ill health make her need for provision compelling. 10 His Honour has erred at his summing up by making an adverse comparison between the Applicant and another beneficiary that has no basis in fact. The Applicant was the only child of the marriage who returned to Australia in August 2015 to be with the deceased. 11 His Honour has unreasonably exercised the discretion in relation to the facts of the Applicant's case when His Honour finds that in August 2015 'Kristi did not stay with the deceased'. 12 His Honour erred in finding the Applicant was not 'a full-time member' of the family. The Applicant contends that in fact she was the only 'full-time' member of the family in the second marriage. 13 His Honour erred in finding that the Applicant 'received a capital sum, from Diane, during her lifetime, being part of the inheritance that Diane had received from her mother'. The Applicant's grandmother, Mrs Eileen Holmes, was alive in 1996, the gift was inter-vivos, and not part of the donor's estate at death. 14 His Honour gave insufficient consideration to the Australian matrilineal inheritances that constituted the deceased's Estate at death. 15 His Honour erred by failing to find that there were financial and non-financial contributions by the Applicant to the deceased's welfare. 16 At paragraph [37] of the Judgment, His Honour erroneously identifies and inserts paragraph 22 of the First Defendant's 01 March 2019 Affidavit as the Applicant's words, adversely affecting the Applicant's credibility in her affidavit evidence and in her oral testimony. 17 At paragraphs [94]-[95] of the Judgment, His Honour states that he accepts the First Defendant's evidence about the events of September 2015, but this assessment is in whole or in part based on the erroneous facts of paragraph [37] above. 18 At paragraph [157] of the Judgment, His Honour has erred as to submissions at first instance."
On 3 May 2021, the applicant filed a notice of motion dated 29 April 2021 seeking the following additional orders in relation to Andrew and Vanessa, the children of the deceased from his marriage to Shirley Plater who live in the United Kingdom: "ORDERS SOUGHT 1 Leave to proceed against the Second and Third Respondents (the overseas Respondents) [Andrew and Vanessa]. 2 Leave to proceed ex-parte due to the First, Second and Third Respondents failing to file an appearance in the Appeal proceedings. 3 Leave to proceed ex-parte due to the First, Second and Third Respondent failing to file objection to the Summons Seeking Leave to Appeal in the Appeal proceedings."
The respondents did not appear on the application for leave to appeal. Lynda, however, filed a document which stated that the Estate had been fully distributed prior to her being served with the application for leave to appeal.

Applicant's submissions

The applicant submitted that there was no disentitling conduct or fault on her part in this case. It was submitted that the applicant had not exhibited any "hostility" to the deceased but that the behaviour of the deceased had caused the applicant fear, distress and regret. There was no "estrangement".
The applicant submitted that, in any case, estrangement is not itself a sufficient reason to refuse an application in family provision, nor is it grounds for a finding of disentitling conduct, particularly where there is need. It was submitted that the applicant's conduct could not be characterised as disentitling conduct under the Succession Act because it was at no time egregious, nor did it affect the deceased. The applicant submitted that the primary judge disregarded her attempted reconciliations with the deceased, including in 2011 and 2015, that "ended in further threats and abuse". On this topic, the applicant submitted that the primary judge should have taken into account "more factually and substantially compatible (sic) [comparable] cases" to which his Honour could have turned his attention including Hartnett and Hartnett v Taylor [2014] VSC 427 and Lathwell v Lathwell [2007] WASC 83.
The applicant further submitted that the primary judge erred in fact as to who was present in Australia for the applicant's mother's funeral and submitted that she was the only child of the Australian marriage who returned to Australia to comfort the deceased. The applicant submitted that she was the only "full-time member" of the Australian marriage and was present during at least 21.6 years of that marriage. It was submitted that the applicant experienced the effects, both positive and negative, of the second marriage and there was a level of emotional dependency.
The applicant submitted that her non-financial contributions to the deceased's welfare were not inconsiderable and included obtaining medical assistance, not reporting assaults prior to 1999, not expressing fear because it would have had consequences for the deceased, such as arrest, and not suing on her mother's estate because she felt pity for the deceased.
The applicant submitted that she met the jurisdictional threshold at s 59 of the Succession Act. Her ultimate submission was that: "His Honour has erred in law and that the exercise of the discretion in her case has miscarried. His Honour, although stating the relevant principles correctly, has misapplied them to the facts of the Applicant's case. His Honour has made inferences and reached conclusions for which there was no evidentiary basis, and he has misdirected himself on key facts in a manner detrimental to the Applicant".
As to whether the application raised any issue of public importance, the applicant submitted that the primary judgment is not consonant with contemporary community expectations and standards with regard to the stated public policy that domestic violence or family abuse is an anathema detrimental to community interests and society.
It was submitted that the primary judge failed to consider that the assault upon the applicant on 14 January 2000 was serious and alarming to her. The applicant submitted that a person who is violent towards a testator cannot expect to be provided for in a will or if not provided for to come before the court and receive a proportion of the estate (citing Christie v Christie [2016] WASC 45 at [37]-[38]) and that the converse is true for testator offenders in New South Wales. The applicant submitted that she was at no time "violent" towards the testator; the primary judge erred in misdirecting himself on self-defence; and the primary judge's assessment of risk and women's safety at [229] was poor.
The applicant submitted that the primary judge's assessment of her position was "one which was so out of kilter with community values and expectations as discerned in the cases … as to bespeak error in this regard": Burke v Burke [2015] NSWCA 195 at [105] (per Ward JA with whom Meagher JA and Emmett JA agreed).

Consideration

The applicant requires leave to appeal because of the small amount potentially involved in any appeal: Supreme Court Act 1970 (NSW), s 101(2)(r)(i). There is no realistic prospect that even if the applicant were completely successful in an appeal that she could achieve a change in her financial position of over $100,000.
The principles about whether leave should be granted are well settled. As has regularly been pointed out in decisions of this Court, a grant of leave to appeal generally requires there to be identified an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable: see, for example, Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; and Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].
The starting point in considering the application for leave to appeal is that the applicant accepts that the primary judge stated the principles to be applied correctly: "His Honour, although stating the relevant principles correctly, has misapplied them to the facts of the Applicant's case …"
The absence of any contest about the relevant principles to be applied is a factor tending against the grant of leave.
In addition, s 60 of the Civil Procedure Act 2005 (NSW) provides: 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.
As Basten JA pointed out in Be Financial at [39]: "[39] This direction has an important operation in respect of leave applications involving amounts below the statutory threshold. Where, as in the present case, the costs of the trial are disproportionate to the amount in dispute, the incurring of additional costs, for a potentially uncertain return, will be a factor weighing heavily against a grant of leave."
Even on the most favourable assumption to the applicant, that an Estate of $189,343 is available as the subject matter of the proposed appeal, at the time of Hallen J's judgment over $109,000 in estimated costs had been incurred by the parties. If leave were granted and the applicant proceeded against Lynda, Andrew and Vanessa as she seeks to do in her notice of motion filed 3 May 2021, the overwhelming likelihood is that the respondents would retain legal advisors and contest the applicant's claim, as they did before the primary judge. The likely costs of the appeal, together with what has already been spent, would likely exceed the value of the Estate. This conclusion leaves entirely to one side the fact that Lynda has advised the Court that the entire Estate was distributed before she was served with the application for leave to appeal. Whatever the admissibility or correctness of that statement and whatever the potential consequences for Lynda, Andrew and Vanessa, if any, of that state of affairs, it may safely be concluded that resolution of competing claims about the manner in which the Estate was distributed are likely also to involve significant legal costs.
It hardly needs stating that the costs of these proceedings to date and in prospect are completely disproportionate to the value of the Estate. They are even more disproportionate to the value of any order that could realistically ever have been made in favour of the applicant. The costs already expended and in prospect are grossly disproportionate to any prospective order made following a grant of leave in this case. The incurring of additional costs, for a potentially uncertain return, is a factor weighing heavily against a grant of leave here.
As to the merits of the applicant's claim, at its heart is an assertion that the primary judge did not made an order for provision in her favour by reason of disentitling conduct. This assertion is not correct.
The primary judge made, at some length, an assessment of the applicant's financial position, the size and nature of the deceased's Estate, the relationship between the applicant and the deceased, and the competing claim of the beneficiaries, two of whom are the deceased's children, and the others who are grandchildren, who are the chosen objects of his bounty, and the circumstances and needs of both the applicant and each of the beneficiaries so far as they are known.
The key findings of the primary judge were that this is not a case where there was a close relationship between the applicant and the deceased that "might be properly described as parent and child". The primary judge found, correctly, that the applicant was not brought up as a permanent member of the deceased's family. The applicant was never a full-time member as a child of the deceased's family. The primary judge found that the evidence does not suggest that the applicant was supported by the deceased, to any significant extent, educationally, or emotionally. The primary judge found that the deceased simply acquiesced to the applicant's presence in the matrimonial home, for a few relatively brief periods.
This dispositive reasoning forming the basis of the primary judge's conclusion about whether adequate provision for the applicant's proper maintenance or advancement in life has not been made by the deceased's Will did not find or take into consideration any allegedly disentitling conduct. Accordingly, the applicant's principal submissions about the proper role of findings about domestic violence or family abuse in making an assessment of allegedly disentitling conduct does not arise in this case.
The applicant's remaining complaints raise no issue of principle, question of general public importance or an injustice which is reasonably clear, warranting a grant of leave to appeal in this case.

Conclusion and orders

For the forgoing reasons, leave to appeal is refused with costs. The applicant also relied upon a notice of motion concerning procedural aspects of her proposed appeal relating to the joinder of Andrew and Vanessa who reside overseas. As leave to appeal is refused, that motion too should be dismissed. The orders of the Court are: 1. Leave to appeal refused; 2. Applicant's notice of motion filed 3 May 2021 dismissed; 3. Applicant to pay the respondents' costs.

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: 13 May 2021

At a glance

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Judgment (8 paragraphs)

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Cases Cited (15)

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