Di Mauro v Sciara; Estate of the late Rosario Sciara

Supreme Court of NSW|2015-11-24|Before: Stevenson J

Solicitors: Slater & Gordon Lawyers (Plaintiff) Kennedys Law Firm (Defendants) File Number(s): SC 2014/340988

Introduction

This is a claim for family provision by Giuseppa (known as Josephine) Di Mauro in respect of the estate of her late father, Rosario Sciara ("the Deceased").
The Deceased died on 17 November 2013, aged 88.
He was survived by his five adult children: 1. Gioacchino (known as Jack), who is aged 62; 2. the plaintiff, who is aged 60; 3. Carmelo, who is aged 58; 4. Giuseppe (known as Joe), who is aged 52; and 5. Carlo, who is now 50.

Representation

Mr Ellison SC appeared with Mr Brown for Josephine. Mr Skinner appeared for the executors. I have been greatly assisted by the succinct and economical fashion in which counsel conducted the proceedings. Much of what follows is drawn, with gratitude, from counsels' helpful opening submissions.

Background

As I have mentioned, the Deceased stated in his will that he did not wish to leave a legacy to Josephine because she had not shown love, affection or respect to him "during the last years of my life".
In fact, apart from seeing the Deceased the day before he died (at which time he was mostly unconscious), Josephine hardly saw her father for some 22 years.
To properly assess Josephine's claim for provision, it is necessary to give careful consideration to the circumstances that led to that situation.
The Deceased, his late wife and each of Jack, Josephine, Carmelo, Joe and Carlo were born in Sicily.
The family migrated to Australia in 1969.
At that time, Jack was approximately 16, Josephine 14, Carmelo 13, Joe 6 and Carlo 4 years of age.
The Deceased and Mrs Sciara bought the Five Dock property the following year, 1970.
Josephine attended high school at Domremy College in Five Dock. She then attended St Joseph's Business College in Leichhardt.
Josephine's brothers attended the local public schools (Five Dock Public School and Drummoyne Boys High School).
In 1974 Josephine commenced work as a ward clerk at a children's hospital.
Josephine said of the Deceased: "He was brought up [in] a manner that is traditional in Sicily; for instance, the male children are treated in a different and preferential way to female children. Usually, female children are regarded as second class citizens. Male children were and are offered freedoms which were prohibited to female children. In this manner, my father was very much 'old school'. … I remember very clearly that I was brought up in the very traditional Sicilian manner. Similarly, my brothers were brought up in the same manner."
While each of the children was living at home and working, they were expected to hand over their wages to their parents to run the household, with a small amount of cash made available to them for personal needs.
Josephine said, of the period to 1975: "As a daily routine, after I completed my day at the Hospital, I came home and, as a daughter, and again in the traditional Sicilian manner I assisted my mother to do most of the washing, cooking and household chores for my brothers and father, more and more so as my mother, Concetta became ill. After she passed away, I did these chores alone. I was the dutiful daughter."
Each of Carmelo, Joe and Carlo gave evidence that they also did some work in relation to household chores.
Josephine said that, despite her best efforts, her relationship with the Deceased was never close and the Deceased was very strict with her.
In 1975, Mrs Sciara was diagnosed with cancer. The family returned to Sicily that year in the hope that this would promote Mrs Sciara's recovery; but she died in late 1975.
The family returned to Australia shortly thereafter and resumed residence at Five Dock.
Until 1980, Josephine stayed home to look after her father and brothers. In one of her affidavits she said: "I took on all the cooking, cleaning, shopping, washing, ironing and all other household duties. I was not paid for this work as was the custom. It was just expected of me."
Of this period, Josephine said in cross-examination: "…I gave up part of my life to be treated as a slave by my brothers and my father. I had no help from any of them when I was at home. None of them."
There was a conflict in the evidence between Josephine and her younger brothers about this. For example, Carmelo, Joe and Carlo each said that their father regularly prepared meals for the family and shared domestic duties.
However, Jack gave evidence that during this period, although the Deceased occasionally cooked meals and did some cleaning, Josephine did most of the cooking, laundry and other domestic duties. Jack said that Josephine "was more like a maid…than a sister". In light of this evidence, I think it probable that the domestic arrangements were as Josephine described.
In 1980, Josephine commenced employment as a receptionist and clerk at a furniture retailer.
Whilst the family was in Sicily, Josephine had met Carmelo Di Mauro, who was to become her husband.
In December 1981, Mr Di Mauro travelled from Sicily to visit Josephine.
This led to an encounter in January 1982 that Josephine described in one of her affidavits in the following terms: "My father did not allow [Mr Di Mauro] and me to socialise alone. He demanded that at all times…there be a chaperone. This caused friction to develop between all of us. In early or mid-January 1982, my father called a family meeting including my future husband, [Mr Di Mauro]. My father asked [Mr Di Mauro] what were his intentions towards me. [Mr Di Mauro] told him that we intended to get married. My father then asked [Mr Di Mauro]: 'What if I don't consent to you…marrying Josephine?' [Mr Di Mauro] told him straight out: 'If that happens, I will leave and take Josephine with me'. My father responded angrily by slapping me hard in the face. It hurt terribly. My father said to [Mr Di Mauro]: 'Leave my house straight away'. My brother Carmelo got in the middle between my father and me to stop him hitting me again. My sister-in-law, Norma (Jack's wife) went up the street and telephoned uncle Pietro to come over to calm things down. In the meantime, my father went around the house locking everything up. Somehow, I, together with Norma ended up in my room where she kept insisting that I need[ed] to get out of there. My father came in the room with a steel rod and waving it near me told me: 'If you move a muscle, I'll break your legs'. Dad was furious. I was petrified."
In cross-examination, Josephine said that before the Deceased asked Mr Di Mauro what his "intentions" were, she and Mr Di Mauro had not discussed the question of marriage.
In cross examination she said: "From there it just went all wrong and he started screaming and all of that, and he started going around the house, he closed all the windows, everything. He went to get something in his hand, I don't know, it was a piece of iron or a piece of wood, I can't remember what it was."
Joe, Carmelo and Mr Di Mauro also gave evidence about this incident.
Mr Di Mauro's evidence was to the same effect as Josephine's. He said: "So [the Deceased] asked [me to] confirm whether it was my intention to marry Josephine. And then he asked me a question and what if I'm against it? And so I answered that eventually I would have brought Josephine with me to Italy and we would've been married there. And when I replied that way, Josephine got up or closer and her father turned and slapped her, and in that time Norma got in between the two of them trying to separate them. My father in law then told me that I had to leave the house."
In their affidavits, both Joe and Carmelo denied that the Deceased slapped Josephine. However, in cross-examination, Joe agreed that he had been in the backyard at the critical time. And Carmelo seemed not to have an actual recollection about that aspect of the matter. In cross-examination this exchange took place: "Q. Is it your evidence that there was no physical contact whatsoever between your father and your sister? A. I can't recall it, to be honest, if there was any. No, I don't think [that] there was."
For some reason, Mr Ellison pressed Carmelo on the matter, and he then said that "there wasn't any physical there". However, I think it more likely that his first response is a more accurate guide to the state of his recollection.
Carmelo did recall that "there was a lot of loud…screaming and stuff" and that the Deceased screamed out from the driveway "don't go, don't go".
Both Josephine and Mr Di Mauro impressed me as having a vivid recollection of the occasion. I think it probable that events occurred as they have described.
Evidently the Deceased, perhaps informed by his Sicilian upbringing, thought that it was for him to withhold his consent to Josephine's marriage to Mr Di Mauro.
Carmelo said that the Deceased had "concerns about Josephine's future" with Mr Di Mauro and had said words to the effect: "[Mr Di Mauro] does not have a trade. He lives off his mother's handouts. I don't know how he will be able to provide for Josephine, let alone provide any good prospects for a future life together."
That evidence might explain the Deceased's fierce reaction to Mr Di Mauro's response to his question.
What is clear from the evidence is that the incident deeply affected both Josephine and Mr Di Mauro. Within weeks, they left Australia for Sicily, where they lived until 1991. They married in October 1982. Their children, Clara and Riccardo, were born there during that time.
Josephine and her family returned to Australia in March 1991.
At that time, relations between Josephine and the Deceased had settled to the point where the Deceased invited Josephine and her family to live with him at the Five Dock property.
Josephine gave evidence that tension soon again developed, this time concerning such matters as what television programs the children could watch or whether the Deceased should go outside to smoke cigarettes.
Josephine said that, ultimately: "Relations got so bad that in or about June 1991 my father threw me and my family out of the family home. He said: 'You and your family have to leave this house. You have two or three weeks to move out'."
After leaving the Deceased's house, Josephine and her family rented accommodation in Five Dock for some eleven years.
In late 2002, Josephine and Mr Di Mauro purchased the property in which they now live, a duplex in Wentworthville.
In her first affidavit, Josephine gave this evidence: "From the time my father threw us out of the family home, we had no contact with him whatsoever. There were no telephone calls. There were no cards or letters. He did not send any birthday or Christmas presents to my children. He did not attend their birthdays. He did not attend Christmas gatherings or other special occasions involving me."
In a later affidavit, Josephine qualified that evidence as follows: "In the late 1990s, when we were living in the unit at Five Dock, I did from time to time try to ring my father to reconnect with him. When I rang him we would have a conversation to the following effect: [the Deceased]: 'Who is it?' Myself: 'Hello Dad'. [the Deceased]: 'Oh it's you, puttana'. My father said these words in an aggressive manner and then slammed the phone down. 'Puttana' is an extremely offensive and very hurtful word in Italian. It means 'whore' and 'slut', a woman who has sex with lots of men for sexual pleasure, sometimes without [sic: with] payment. I understood my father used this word towards me because in his mind [Mr Di Mauro] had defied him and defiled me when he courted and then married me. I rang my father about 10 times, usually Birthdays and Christmas, while my family and I lived in the unit at Five Dock. On each occasion I rang him, the response was similar. Sometimes I would simply say 'Hello Dad' and then he would just hang up."
Josephine gave evidence that very shortly before the Deceased died, she heard from Jack that the Deceased was unwell and that his condition was critical. She visited him in hospital the day before he died. By then, he was "lapsing in and out of consciousness". Josephine attended his funeral. She said that Carmelo, Joe and Carlo refused to speak to her.
Josephine said that, between 1991 and 2013, she saw her father on a number of occasions, including when attending her aunt's funeral. On each occasion, Josephine said that her father refused to greet her.
Thus, since January 1982, Josephine has been in regular contract with her father for only some four or five months (when she and her family lived with him at Five Dock in 1991).
Evidently, the incident at Five Dock in 1991, perhaps fuelled by memories of the confrontation in January 1982, was such as to cause Josephine not to see her father (otherwise than on the small number of occasions to which I have referred) for some 22 years; and to cause the Deceased to make no attempt to contact his daughter during that period. Indeed, on Josephine's account of events, on the occasions when she tried to telephone him he terminated the call in the circumstances I have set out.
During that period, Josephine was not able to provide any assistance, comfort or companionship to her father in his declining years. That task fell to her brothers (from all of whom, save Jack, Josephine is also estranged).

The financial position of the parties

As I have said, Josephine is aged 60, as is her husband. She is currently employed as a cook at a child care centre in Kellyville. She has a net income of approximately $39,500 per annum and superannuation of approximately $87,800. Mr Di Mauro is employed as a storeman and packer. He has a net income in the order of $34,400 per annum. He has superannuation of approximately $68,700.
Josephine and her husband own the duplex at Wentworthville. Its value has been assessed to be in the range of $550,000 to $790,000. There is a mortgage of $197,000. The duplex needs painting and some repairs, for which a builder has given a quote in excess of $70,000. Josephine and her husband own two vehicles and have savings in the order of $10,000.
Mr Di Mauro also has a one sixth interest in a block of apartments in Italy, bequeathed to him, his siblings and his nephews by his late mother. Mr Di Mauro's siblings live in some of the apartments. He and Josephine lived in one when they were living in Sicily between 1982 and 1991. Evidently the vacant apartments cannot yet be rented, as the relevant council approval is not to hand. Mr Di Mauro has, since 2010, communicated with his sister concerning the possible sale of the property.
In my opinion, the following passage from Mr Di Mauro's evidence accurately summarises the current situation: "It is very difficult to force the issue with my siblings and my two nephew beneficiaries. Accordingly, I do not know what will happen or whether I will receive my entitlement in the future or at all during my lifetime."
I accept Mr Ellison's submission that, realistically, "that is not an asset that can be readily liquidated".
Josephine and Mr Di Mauro's daughter and son-in-law (and their child) also currently live at the Wentworthville property, rent free.
Josephine and Mr Di Mauro are thus in a modest financial position.
On the other hand, Carmelo is, as Mr Skinner acknowledged, relatively well off. He is a flight attendant (as is his wife). They jointly earn some $151,000 per annum plus superannuation. They have superannuation in the order of $542,000 and own three parcels of realty (including their home) with a net equity in the order of $1.7 million.
Joe is now single and earns some $60,000 per annum plus superannuation and the use of a company car. He recently used borrowings of $370,000 and savings to purchase a property at Albion Park for $680,000.
Carlo is also now single and has recently purchased a property at Lake Illawarra for $900,000 using borrowings of $240,000 and the proceeds of a divorce settlement in the order of a little under $700,000.

Relevant principles

Section 59 of the Act provides that the Court may make, on the application of an "eligible person" (there is no dispute that Josephine is an "eligible person"), a family provision order in relation to the estate of a deceased person if the Court is satisfied that: "At the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person…".
The section provides that, if the Court is so satisfied, then: "The Court may 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."
I consider that the test to be applied remains the two-stage test referred to in Singer v Berghouse (No 2) [1994] HCA 40; 181 CLR 201 at 208-209; namely, determining whether adequate provision has been made in the will for Josephine, and, if not, what provision should be made.
A different view as to the applicability of the two-stage test has been expressed by one member of the Court of Appeal (Basten JA in Andrew v Andrew [2012] NSWCA 308 at [29] and [41]). Differing views were expressed by other members of the Court in that case (see Allsop P at [6] and Barrett JA at [65], [79]-[81] and [94]).
In Nowak v Beska [2013] NSWSC 166 Hallen J said at [113]: "It seems to me that the two stage approach adopted in the myriad of cases determined under the former Act and under the Act, including Keep v Bourke [2012] NSWCA 64, enables me, despite what has been said by Basten JA [in Andrew v Andrew], and until uncertainty is resolved, to continue to follow that approach in determining cases under the Act. As Allsop P said [in Andrew v Andrew], 'it may be an analytical question of little consequence' [at [6]] since what has to be decided by the Court is whether to make a family provision order and the nature of any order."
His Honour expressed the same view more recently in Ciric v Ciric [2015] NSWSC 313 at [86], and observed that that view was unaffected by the more recent decisions of the Court of Appeal in Phillips v James [2014] NSWCA 4; 85 NSWLR 619, Verzar v Verzar [2014] NSWCA 45 and Salmon v Osmond [2015] NSWCA 42. I agree.
The first stage of the two-stage test involves a question of fact, namely whether the Deceased has made adequate provision for Josephine's proper maintenance, education and advancement in life.
The aim of the first stage is to assess whether the Court can make an order for provision. As Hallen AsJ (as his Honour then was) said in Lajcarova v Todorov [2011] NSWSC 522 at [79]: "Unless the court comes to the conclusion that inadequate provision has been made, it is not empowered to make an award. This is commonly referred to as 'the jurisdictional question'. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant."
The second stage, should it arise, involves an exercise of discretion. The Court must assess whether provision ought to be made in Josephine's favour.
The object of the second stage is to assess whether the Court should make an order for provision. As Hallen AsJ said in Lajcarova v Todorov at [84]: "At the second stage, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour."
Although Hallen AsJ was then considering a claim under the former Family Provision Act 1982 (NSW), I see no reason to adopt a different approach under the Act.
It is clear that the determination of the second stage involves similar considerations to that of the first stage: Singer v Berghouse (No 2) at 209-210.
What is involved is "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific" (Manuel v Lane [2013] NSWCA 61 at [9] per Emmett JA, with whom Meagher and Ward JJA agreed, speaking of the discretion to be exercised under s 20 the Property (Relationships) Act 1984 (NSW); which I see as involving, in this respect, the same notions as arise under the Act).
The guiding "principles" were summarised by Hallen AsJ in Gersbach v Blake [2011] NSWSC 368 at [94]-[96] as follows: 1. it is not appropriate to endeavour to achieve a "fair" disposition of the deceased's estate; 2. it is not part of the Court's role to achieve some kind of equity between the various claimants; 3. the Court's role is not to reward an applicant, nor to distribute the deceased's estate according to notions of fairness or equity; 4. rather, the Court's role is of a specific type and goes no further than a making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant (see also Bryson J in Gorton v Parks (1989) 17 NSWLR 1 at 6); 5. the Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation (see also Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; 107 CLR 9 at 19 per Dixon CJ and McKenzie v Topp [2004] VSC 90 at [63] per Nettle J); and 6. freedom of testamentary disposition remains a prominent feature of the Australian legal system (see also Lajcarova v Todorov at [91]).
I may also have regard to the matters set forth in s 60(2) of the Act. Those most relevant to this case are those in s 60(2)(a) and (j), namely: "(a) …[the] relationship between the applicant and the deceased person, including the nature and duration of the relationship, … (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person".

Consideration

Josephine and the Deceased were, when he died, estranged.
The term "estrangement" does not appear in s 60 of the Act. As Hallen J observed in Doshen v Pedisich [2013] NSWSC 1507, it does not describe the conduct of either party but is "the condition that results from the attitudes, or conduct, of one, or both, of the parties" (at [168]).
In this case, the estrangement between Josephine and her father was deep and long lasting.
There is an explanation for it on the evidence. In 1982, the Deceased took umbrage at Mr Di Mauro's statement that, if the Deceased did not agree to his marriage to Josephine, he would "leave and take Josephine with me". As I have said, it may be that the Deceased's view was that, perhaps in conformity with Sicilian tradition, his permission was required for his daughter's marriage. The result was that Josephine and Mr Di Mauro, in effect, fled to Sicily, got married and remained in Sicily until 1991; having two children in the meantime.
By 1991 a reconciliation of sorts had been achieved, such that the Deceased invited Josephine and her family to live at Five Dock for several months. In less inflamed circumstances than those of 1982, but with dramatic and lasting effect, the Deceased expelled Josephine and her family from the Five Dock property. This led to a further estrangement, which lasted from then until the Deceased's death.
Josephine gave evidence that she endeavoured to maintain contact with the Deceased in the manner I have set out above. The Deceased would have none of it.
This is a circumstance that must have been deeply poignant to both Josephine and the Deceased, but which, despite the passage of many years, they were not able to resolve.
It led to the circumstance where the Deceased, for reasons that he clearly stated in his will and which, I would infer, he considered carefully, decided to leave Josephine without any provision at all.
During her cross-examination, Josephine gave this evidence leading to the passage I set out earlier at [32]: "Q. What are you hoping to get out of this case? A. I don't know. Q. What, you've got no idea? A. Not really. Q. Why did you bring the proceedings? A. Because I think it's only fair being a daughter I should get something as well. Q. Where do you get that notion from? A. Because I gave up part of my life to be treated as a slave by my brothers and my father. I had no help from any of them when I was at home. None of them."
It may be that Josephine overstated matters when she said that she was treated "as a slave" by her brothers and the Deceased and had "no" help from any of them.
But, in my opinion, it is true to say that, to some extent, she "gave up" part of her life; especially in the years following the family's return from Sicily after Mrs Sciara's death. As her brother Jack said, during this period, Josephine was "more like a maid…than a sister".
In those circumstances, I am satisfied that the provision made by the Deceased for Josephine in the will (that is, none at all) was not adequate.
For the same reasons, I am persuaded that some provision ought to be made for Josephine from the Deceased's estate.
In Doshen v Pedisich, Hallen J set out some factors to be borne in mind in estrangement cases at [168], including: 1. the nature of the estrangement, and its underlying reasons (see Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [88]-[94]; Foley v Ellis [2008] NSWCA 288); 2. that in some circumstances, testators are entitled to make no provision for their children, particularly where children have treated their parents "callously, by withholding without proper justification, their support and love from them in their declining years" (Ford v Simes [2009] NSWCA 351 at [71] per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed); and 3. that the Act "represents a limited disturbance of the right of testamentary disposition" and "establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will" (per Kirby P (as his Honour then was) in Hunter v Hunter (1987) 8 NSWLR 573 at 575; his Honour was speaking of the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW), but his observations are nonetheless apt).
There are, of course, no "rules" about how the Court deals with circumstances of estrangement when considering applications for family provision. Estrangement between a deceased and child is a factor to be taken into account, but it cannot, of itself, be determinative of either the question of whether adequate provision has been made or what provision ought to be made.
Mr Ellison submitted that Carmelo, Joe and Carlo, as the chosen objects of the Deceased's bounty, "will always come ahead" of Josephine.
As I have said, there is, in my opinion, some justification for Josephine's statement that she "gave up part of [her] life" to care for the Deceased and her brothers, especially after the family's return from Sicily in 1976.
However, between 1982 and the Deceased's death in 2013, a period of some 31 years - more than half of her life and almost a third of the Deceased's life - the only meaningful contact Josephine had with her father was for the several months that she and her family lived with him at Five Dock in 1991. Her younger brothers were in constant contact with their father throughout that period and, in his later years, provided such assistance to him as was needed, especially as his health declined. What role they and Josephine would have played in the Deceased's life had there been no estrangement between Josephine and the Deceased will never be known.
The poor state of the relationship between the Deceased and Josephine, and the absence of significant contact between them for many years tends to "operate to restrain amplitude in the provision to be made" (per Hallen J in Doshen v Pedisich at [168], referring to the observations of Barrett JA in Keep v Bourke [2012] NSWCA 64 at [50]).
However, it cannot be said, in my opinion, that Josephine treated the Deceased "callously" or without any justification.
As I have said, Josephine's financial position is modest, although she and Mr Di Mauro are by no means destitute. Their financial position is not significantly worse than that of Joe or Carlo.
In all of those circumstances, the conclusion to which I have come is that although some provision should be made for Josephine, it must be substantially less than that made for her brothers.
In an evaluative process such as this, there can be no indisputably "correct" conclusion to which the Court can come. There is no dollar figure that is "right", let alone one that will strike all minds (whether judicial or not) as being that which reflects what is "adequate" in all the circumstances.
However, the conclusion to which I have come is that the provision that ought to be made for Josephine from the estate is $100,000.
That will result in her receiving something in the order of 25 per cent of the amount that her younger brothers will receive, which, in all the circumstances, appears to me to be adequate.
I invite the parties to bring in short minutes of order to give effect to these reasons. I understand that there is no dispute that Carmelo, Joe and Carlo should have their costs from the estate on an indemnity basis, and that Josephine should have her reasonable costs from the estate on a party party basis.
I will hear submissions as to whether any particular costs orders are sought.

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: 01 December 2015

Family Provision Act 1982(NSW)

Testator's Family Maintenance and Guardianship of Infants Act 1916(NSW)

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