Dodd v Dodd

Dodd v Dodd - [2022] NSWSC 199 - NSWSC 2022 case summary — Zoe

[3]

Credibility of Parties and Witnesses

These proceedings were conducted substantially in person in the Courtroom. Allowances mostly did not have to be made for assessing credibility over AVL facilities.
Peter Dodd. Peter was a complex witness to assess. The dynamic of the courtroom was a most important factor in that assessment, resulting in the findings made in the factual narrative below.
A psychiatrist called in the plaintiff's case, Dr Brian Potter, diagnosed Peter as being "emotionally fragile". That was an apt description of the way he presented in evidence. He was generally calm throughout his testimony. But when questioned on sensitive topics he at times became emotionally overwrought. This emotion was often mixed with frustration, anger and incomprehension at the questions being asked of him about his relationship with his father. He has little insight into the perspectives of others on his life and the course of the emotional waves that buffet him.
Ms Petrie's questions to him were proper and within the reasonable limits of what can be expected within the courtroom. But Peter was highly reactive to questioning on some issues in relation to his father. This demonstrated a difficulty he still encounters in managing the gap in his life that his sterile relationship with his father had created.
The plaintiff attempted to give an honest account of his childhood and his relationship with the deceased but his guarded responses to everything relating to his father meant it was necessary to assess his evidence cautiously. He was generally a reliable historian who tried to give an account of facts as he remembered them. But not all his accounts measured up accurately against objective evidence. He tended to minimise his own aggressive conduct towards the deceased and to maximise the deceased's aggressive conduct towards him. Allowances for that exaggeration and the fact that it perhaps made his own past easier for him to live with must be factored into judging his credibility.
Colleen Dodd. Colleen Dodd had been married to the deceased but separated from him in 1996. She gave direct honest and forthright evidence about her relationship with the deceased and about the plaintiff's and the deceased's relationship. Despite an unhappy marriage to the deceased she was careful not to overstate the deceased's mistreatment of her. Some of her most vivid testimony of the deceased's mistreatment of her came unprompted during answers in her oral evidence.
Gaye Myers. Ms Myers and her husband had been next door neighbours of the deceased and Colleen Dodd. A young mother, like Colleen, Ms Myers was closely involved in Colleen's life and was a keen and accurate observer of its details. She had daily interaction with and often gave assistance to Colleen. She gave honest, clear objective and credible evidence about the Dodd household. But she also made very honest concessions about the limitations on her observations about the family next door. Her evidence provides an objective independent account. All her evidence is accepted.
Marilyn Dodd. The defendant was an intelligent observer who gave thoughtful and complete answers. Her evidence was mostly reliable. She made subtle and insightful judgments about her own family and about Colleen and the deceased's family. Her observations of her brother's drinking habits were modified by her own standards of what was acceptable alcohol-related behaviour. She was reluctant to criticise the established domestic practices of her brother, the deceased.
Lorraine Rutherford. Like her sister, the defendant, Lorraine Rutherford had fixed and accommodating views about her brother, the deceased. She thought that his drinking habits were generally socially acceptable. She was not readily able to recognise her brother's faults. But she otherwise gave generally reliable and thoughtful evidence that at times made concessions to the plaintiff's case. Her evidence is mostly accepted.

[4]

The Early Years

The deceased was born on 16 October 1941 and died overnight between 5 and 6 March 2020 at the age of 78. The defendant had three siblings, two sisters Lorraine and Marilyn (the defendant), and a brother Alan.
The deceased married Colleen Dodd on 1 June 1963. They initially lived in a flat in Maitland, before purchasing a property in Weston, a small community between Kurri Kurri and Abermain, which is part of the City of Cessnock, a local government area close to the coal mines of the Hunter Valley.
The deceased and Colleen were not able to have their own biological children. Their attempts to bear children placed a heavy burden upon them. Tragically, several of their children were stillborn. At least one child was lost at full term. These misfortunes were compounded by other miscarriages. The deceased and Colleen decided to adopt a child. In April 1970 they adopted Peter, who was born on 26 March 1970. At the time of his adoption, Peter was a much a wanted baby.
The deceased and Colleen had what several witnesses chose to call a "traditional" marriage. It was perhaps traditional for the time in the sense that the deceased saw himself as the breadwinner outside the house who did not have to do much domestically. But the evidence indicates that the deceased's and Colleen's marriage was marred by domestic violence which cannot be said to be a legitimate part of any description of marriage, "traditional" or otherwise.
A finding that the deceased ill-treated his wife and engaged in domestic violence is a serious finding that should only be made on compelling evidence: Evidence Act 1995 s 140. But Colleen provides that evidence and the Court accepts it. Her evidence includes an account that the deceased had punched her in her body rather than her arms or face, so that any bruising would not be visible to others. She gives detail in relation to his heavy consumption of alcohol that is so unusual it would be difficult to invent. He required her to drive between Weston and Shoal Bay so that he could sit in the passenger seat and continue to drink beer whilst they were travelling.
It is not difficult to infer that in an environment like this, and witnessing such events, Peter might understandably begin to form a fearful and hostile view of his father. The Court accepts that at times he was required to comfort Colleen after the deceased's violent behaviour. A child exposed to such conduct would have much to deal with, even before a father's distant behaviour were considered.
All the witnesses in a position to make a judgment, including the deceased's wife Colleen, acknowledged that the deceased had a strong work ethic and was a source of reliable financial support to his family. Several witnesses described him as "a good provider". Colleen was responsible for most of the household chores and was largely responsible for taking care of Peter during his childhood. She worked for a period in a sewing factory, but she stopped work during pregnancy.
In the early 1970s, the deceased and Colleen began to travel to a caravan they owned at Shoal Bay in the Port Stephens area for the weekend. Shoal Bay is a beachside and fishing district used often used as weekend and holiday housing for coalminers and other successful rural workers in the Hunter Valley. The deceased's good earnings enabled he and Colleen to acquire a beachside holiday house at Shoal Bay in 1977. They were in the habit of retreating there for the weekend after the deceased had finished his week's work at the mine.
The deceased and his brother Alan owned a large fishing boat, and the pair routinely went fishing when in Shoal Bay. The two were very close during childhood and throughout their adult lives. Alan paid for the construction of a granny flat on the Shoal Bay property and would frequent the weekender at least fortnightly. When Alan and the deceased had finished on the water, they would generally retire to the Fish Club or the Country Club in Shoal Bay where they would socialise over a few beers with other friends. Going home to spend time with Colleen and Peter was not very high in the deceased's life priorities.
The Court heard surprisingly little about Peter's formative years, from his own evidence and from that of other witnesses. Between his adoption and him commencing work in the mines the Court has a series of impressions of Dodd family life but they give a sense of the difficulties that were to emerge later in Peter and the deceased's relationship.
Sport was a happy stabilising factor in Peter's childhood. Football, swimming and lifesaving (or 'Little Nippers'), occupied Peter's weekends. Peter would also go the Shoal Bay property, usually after school on a Friday with his uncle Alan or his uncle Jack. Colleen was responsible for taking Peter to his sport. It was rare for the deceased to ever attend. He did not seem to be closely interested in that part of Peter's life.
The deceased did not obviously take advantage of the opportunities that childhood sport and recreational activities such as fishing would have given him to get closer to his son. The evidence indicates a clear trend of limited interaction between the deceased and Peter during Peter's formative years. Whether this was deliberate or just an ingrained habit of recreation outside the household that did not change when Peter arrived is difficult to say. But this gave little opportunity for their relationship to develop a sound foundation and flourish during Peter's early childhood.
Peter alleges his relationship with the deceased deteriorated during his teenage years. This is undoubtedly true. One significant teenage flashpoint appears to have been after the deceased discovered that Peter was experimenting with marijuana. Another appears to be when Peter, at the age of 16 or 17, took the deceased's car for a joyride and was involved in an accident. Both these incidents angered and disappointed the deceased and he showed this to Peter. But Peter could not readily learn from his mistakes and the deceased's patience to deal with his son's mischief was limited.
Aspects of Peter's case dwelt upon possible physical abuse of him by his father in his early years. The Court accepts that the deceased tried to discipline Peter more strongly physically as he grew older. This strong discipline and Peter's reaction began to define their relationship as one of hard and increasing physical chastisement. But this probably had less effect on Peter than the deceased's neglect of the emotional needs of his son.
Peter left school in 1985 when he was 15, after obtaining the School Certificate. He did not go on either to the High School Certificate or to any form of tertiary education. But he did obtain a Certificate of Training and Assessment.
Peter lived with his parents until 1988, when he was approximately 18 years of age. But they were not always together. In 1981, when he was approximately 11, the deceased and Colleen briefly separated. Peter opted to live with the deceased at their property at Shoal Bay until his parents reconciled. The decision is a significant one. By all accounts, difficulties had already emerged in Peter and the deceased's relationship. But Peter made a youthful choice to pursue his relationship with his father, difficult though it already was compared to his good relationship with his mother.
The deceased and Colleen resumed living together within a year. But by all accounts, their marriage was strained, involving further temporary separations. The other witnesses who observed them say that they began to lead separate lives this time. The resumption of full family life did not assist Peter's relationship with his father. It fractured during the onset of his teenage years and became increasingly volatile as Peter progressed through adolescence. The relationship never really recovered. Thereafter they remained distant, despite attempts on both sides to improve relations.
The deceased made one of those attempts in 1987. Peter was then 17. The deceased found him a job at the Wyee State Mine as an underground coal miner. The deceased could do this because of his own long career in coal mining, which he had commenced in 1966, and his strong connection with the Wyee State Mine. He was dedicated to his work and highly regarded by his employers and fellow workmates. He had a reputation for application in the arduous work of underground coal mining. By 1976 he had reached the level of mine deputy, a position of significant statutory responsibility underground.
The deceased had high levels of mechanical aptitude. Prior to undertaking a career in mining, he had trained as a mechanic with the Ford motor company. He was able to repair mining equipment. Outside work he was something of a 'go to' friend for many workmates, who needed motor vehicles and other mechanical equipment repaired. He conducted much of this work in a workshop at the back of his and Colleen's property at Weston.

[5]

Peter's Wyee State Mine Employment - 1987 to 1990

The deceased conferred a unique employment opportunity upon his son. An apprenticeship and later employment at the Wyee State Mine was a valuable chance in life for Peter. The deceased's seniority and connections at the Wyee State Mine secured Peter the position. Peter explained and the Court accepts that when he started at the mine in 2007, he commenced on a two-year apprenticeship in which he was introduced to all aspects of mining, but generally working on a day shift. When his apprenticeship ended after two years he was automatically rostered on to the least desirable shift, the night shift. Mine hierarchies meant that it would be many years before he could work on the better afternoon shift and then eventually the most desirable day shift. The preferred shifts were reserved for the senior employees.
Peter did not last at the mine. He sought to excuse his failure to grasp this opportunity. He says, and the Court accepts, that at the age of 19 he found working on night shift very difficult. He fell asleep over underground mining equipment and on at least one occasion he missed the locomotive returning workers from the underground coal face back to the shaft to the surface. These failures, together with associated absenteeism, caused him to lose his job.
Peter's job loss exacerbated the friction between him and the deceased. The dates are somewhat uncertain, but the Wyee State Mine appears to have terminated Peter's appointment during 1990. This understandably disappointed the deceased. Several witnesses report, accurately in the Court's view, that the deceased complained that Peter was unable to hold down the job that the deceased had obtained for him. The Court accepts that his immaturity and lack of disciplined sleeping habits at the age of 19 led to his dismissal.
At one level this was an opportunity the deceased provided, and Peter squandered. But the opportunity may not have been squandered if the plaintiff and the deceased had a better relationship. The deceased could have counselled and advised his son about adjusting to this kind of difficult work. But by then the plaintiff was not taking advice from the deceased. Embedded personal distance and mistrust had already developed between the pair.
Looking at Peter's subsequent history, the loss of this job at the age of 19 or 20 was an unfortunate turning point in his life. From there he descended into greater instability, criminal behaviour, and violence towards those who were close to him and to others. The sense of worth and pride coming from stable employment would probably have given Peter a much steadier course in life. Moreover, success at the Wyee mine would likely also have given a chance for some bond to develop between him and the deceased.
By the time Peter left Wyee State Mine the deceased and Colleen were living at the Weston property.
From 1990 until the deceased and Colleen's separation in about 1996, the plaintiff lived at the Shoal Bay property, while the deceased and Colleen lived at the Weston property.
Peter gives an account of the deceased's escalating aggression with him. This is confirmed by police records. On the 24 August 1990 the deceased was dealt with under Crimes Act 1900, s 556A at Kurri Kurri Local Court on proven charges of possessing a firearm, whilst under the influence and failing to ensure the safekeeping of a firearm. No conviction was entered upon his recognisance to be of good behaviour for six months. The Court accepts that when the deceased was inebriated he was threatening to shoot Peter and had brought out a gun and physically threatened Peter with it. The incident demonstrates what had been evident in the past, that the deceased himself was capable of threatening behaviour towards his son.

[7]

The Deceased's First Will - April 1996

Soon after the deceased's separation from Colleen and the property settlement with her he made a will, on 18 April 1996. In this will the deceased appointed a friend, Allan Bailey as his executor and gave the whole of his estate to his brother Alan, and if Alan did not survive him, then to his sister Marilyn, the defendant. The will was logical in conferring substantial benefit upon Alan. At that time the deceased was heavily indebted to Alan for funding the property settlement.
The deceased's 1996 will made no mention of the plaintiff. The deceased explained his reasons for this in an accompanying document, which provided as follows: "I JOHN DODD of [address not published] Weston have this day made my last will in which I have made certain provisions for my brother ALAN HERBERT DODD and my sister MARILYN DODD. In making my said will I have given consideration to whether or not I owe any legal or moral obligation to my son PETER ALAN DODD. My son will turn twenty-seven on 25 March 1996. For the past eleven years there has been much animosity between myself and my son. Since he has been the age of about sixteen years, my son has not ever communicated with me except to abuse me verbally. On numerous occasions my son has called me an arse hole • My son has also inflicted physical abuse upon me. On one occasion he punched me so hard he broke my nose. I have tried to reason with my son on many occasions but to no avail. I believe the relationship is beyond salvaging and further has irretrievably broken down. I do not believe I have any obligation to my son PETER ALAN DODD to make provision and accordingly I have decided to exclude him from my said will."
This statement was substantially repeated 11 years later, when Peter was again excluded from the deceased's 2007 will. The deceased had reached firm views by 1996 when the plaintiff was only 25, about Peter's claims upon his testamentary bounty. The deceased's testamentary intentions did not change before his death 24 years later, when the plaintiff was 49.

[9]

The Plaintiff's Criminal Record

Peter has a long and ugly criminal record. The plaintiff's case generally tried to ignore it. But it represents a lengthy history of antisocial conduct of which the deceased was no doubt aware. The record commences in 1991 with convictions for offensive conduct, assault, and possession of an offensive implement. He was convicted of break, enter and steal in 1993. And in 1998 he was convicted for assault occasioning actual bodily harm and contravening a domestic violence order. His offences in 2000 and 2002 have been dealt with elsewhere in these reasons.
Despite Peter's jail sentence in 2000 he continued to offend from time to time between 2003 and 2020. He committed a range of offences during this period that included offensive behaviour, misuse of a carriage service to menace harass or offend, assault occasioning actual bodily harm, malicious damage to property, PCA driving offences, the use of a prohibited drug, driving while unlicensed, driving while disqualified and larceny. Peter's convictions for misuse of a carriage service to menace harass or offend were particularly serious and resulted in him serving 18 months imprisonment between April 2016 and October 2017. And as recently as December 2020 he was given a community correction order for 18 months commencing in June 2021 and ending in December this year on charges of stalk, intimidate with the intent of inducing fear of physical harm.
This record is a basis to infer that the deceased, who would have been aware of this record, must have always viewed Peter with caution. There was enough violence and unpredictable behaviour in this record for the deceased to be careful about letting Peter get too close to him. Marilyn said that the deceased was afraid of Peter. Given his record the deceased's perception may well have been able to be defined that way. But there is no suggestion that Peter ever breached the apprehended violence order imposed on him in 2002 preventing him contacting the deceased and the deceased did not seek to renew such an order when it expired in 2005. But the deceased must have had some sense of apprehension about Peter's violent outbursts. This history, including offences in the last few years of the deceased's life, made the deceased's decision not to renew his previous offer to take Peter in, quite understandable. In a conflict between the deceased's caution and Peter's homelessness, it is difficult to criticise the deceased's caution, despite the outcome.
But Peter is not on trial for criminal conduct here. He was penalised for that conduct and suffered a range of penalties designed to serve individual and general deterrence against crime, including his serving several periods in prison. As the law cited in this judgment shows, the Succession Act has its origins in an entirely a different social policy from the deterrence of crime: namely, that testators should not leave Succession Act eligible persons without proper and adequate financial support. It would be a mistake for the Court to blend these two social policies here. The criminal law has dealt with Peter's general antisocial behaviour. These reasons are concerned with Peter's behaviour towards and relationship with the deceased. To the extent that behaviour includes criminal behaviour Peter's criminal record is highly relevant.

[10]

From the Separation to the Apprehended Violence Order - 1995 to 2002

Evidence about the nature of Peter's employment after he left the Wyee State Mine in 1990 was limited. But what there is, shows that his employment was intermittent. In those years Peter undertook casual employment at a local supermarket and later as an oyster opener at Salamander Bay. He was also employed from time to time as a floor tiler and a bar worker. He held brief full-time employment at the Nelson Bay Fishing Co-Operative, unloading fish and preparing them to be sent to the Sydney Fish Market.
But Peter's criminal activity ultimately interrupted the employment he was able to secure in these years. In June 2000 Peter was convicted of aggravated break and enter and commit a felony namely inflicting actual bodily harm and intimidating a police officer in the execution of duty. On the first charge he was imprisoned for two years and six months with a non-parole period fixed to conclude in July 2001. A concurrent sentence of three months was imposed in respect of the intimidate police charge. His release on parole was to be subject to supervision and to his undertaking a course of drug or alcohol rehabilitation or anger management. He served his sentence in the St Heliers Correctional Centre, at Muswellbrook, where the deceased visited him from time to time. He was released in July 2001 on 12 months parole.
The deceased gave Peter another major opportunity upon his release. He allowed Peter to stay with him at the Shoal Bay property, while on parole. The deceased offered Peter to stay with him for the full 12-month parole period. This meant that Peter would not breach parole simply because he did not have a fixed residential address.
This was a significant milestone in the deceased's relationship with Peter. At the time the deceased made this offer, Peter did not feature in the deceased's current 1996 will. The deceased nevertheless felt obliged to provide support to Peter, when no one else would take him in. The sad alternative was that Peter would have had to remain in gaol. This decision indicates, whatever the state of the deceased's will, that he did not want Peter to be abandoned to imprisonment or destitution.

[11]

An Altercation between Peter and the Deceased - April 2002

But their living together did not go well. An incident took place between them in April 2002, about 9 months into Peter's 12-month parole period. The deceased's version is available through a statement he gave to the police at Nelson Bay Police Station. Peter provided a different account of the incident. The deceased was granted an apprehended domestic violence order against Peter in May 2002. Peter was convicted in April 2002 at Raymond Terrace Local Court of common assault and malicious damage to property. Upon conviction he was placed on a three-year good behaviour bond, conditioned upon his strict compliance with current apprehended domestic violence orders.
But determining what actually happened based upon the Court's records is difficult. The plaintiff pleaded guilty. But he did not plead to the facts set out in the deceased's statement. Regrettably the material available from the Local Court does not include the version of the facts to which he did plead guilty.
But the plea of guilty itself indicates there was an assault. And the Court accepts Lorraine's evidence that she saw the deceased the following day and he had a black eye and bruises all over his body. And the Court accepts Lorraine's evidence that the deceased said to him he was too scared to stay in the house because he thought that Peter was going to kill him.
One result of this incident was that the deceased never invited Peter to his house again and if Peter did turn up unexpectedly, he would keep him standing at the door. There was a continuing apprehension about Peter thereafter.
The April 2002 incident appears to have been the result of simmering but growing resentment between father and son living in the one household. The deceased was concerned that Peter might be stealing from him and began to lock up items and to lock his bedroom door. The lack of trust the deceased was showing then caused Peter to become more aggressive. Ms Petrie cross-examined Peter extensively about this incident, based on the deceased's statement. The cross examination resulted in him admitting an assault but not the worst of what the deceased alleged. But based on Lorraine's evidence, which the Court accepts, the incident was sufficiently violent to cause bruises and lead to blood being spilled. Some of Peter's evidence does not take responsibility even for such damage or injury. To that extent the Court does not accept Peter's evidence.

[13]

The 2007 Will and the Succession Act, s 100 Statement

The deceased made his last will on 20 November 2007. Simple in form the 2007 will appointed the defendant Marilyn as his trustee and gave her the whole of his net estate. At the same time as executing his will the deceased made a Succession Act, s 100 statement in the following terms: "I, John Dodd of [address not published], Shoal Bay have this day made my last will in which I have made certain provisions for my sister MARILYN DODD. In making my said will I have given consideration to whether or not I owe any legal or moral obligation to my son PETER ALAN DODD. My son turned 38 years old on 25 March 2007. For the past 22 years there has been much animosity between myself and my son. Since he has been the age of about 16 years, my son has not ever communicated with me except to abuse me verbally. On numerous occasions my son has called me an "arsehole". My son has also inflicted physical abuse upon me. On one occasion he punched me so hard he broke my nose. After Peter's release from goal in 2001 he came to live with me for about 12 months at no cost to him. He became abusive and violent and in March 2002 he assaulted me again resulting in his arrest and further imprisonment. I have tried to reason with my son on many occasions but to no avail. I believe the relationship is beyond salvaging and further has irretrievably broken down. I do not believe I have any obligation to my son PETER ALAN DODD to make provision and accordingly I have decided to exclude him from my said will."
There was undoubtedly friction and resentment between the pair and the description of "much animosity" is true. But the deceased's conclusion that he "did not have any obligation" to Peter sits at odds with his own, even recent conduct. Their animosity did not prevent the deceased from visiting Peter in prison, or from inviting Peter to stay at the Shoal Bay property upon his release, or from supporting that stay for at least 9 months with all its inevitable aggravations and tribulations. These gestures by the deceased are indicators of a complicated relationship, where frustration was expressed freely and compassion more subtly, and in which a complex mixture of obligation and rejection ebbed and flowed over time.
The deceased survived over 12 years after making his will and the Succession Act, s 100 statement. During that period he had continued interaction with Peter. But despite that interaction he modified neither his will nor the s 100 statement. He had clearly made up his mind about his son and for the next 12 years nothing changed his mind. But during this period, as will be seen, Peter made genuine efforts to make contact with his father. Life had made the deceased a man of fixed views. Nothing Peter did could overcome the deceased's hardened attitude toward him.
Both s 100 statements can be analysed from the perspective of what we know of the deceased. The Court accepts Colleen's evidence that the deceased was, to put it euphemistically "old school" but as she added less euphemistically "I can't really explain it to you, but what he said he wanted done, he wanted done, and you would live by his rules". The deceased had inflexible rules. A man like that would have been unable to accept that he may have been partly responsible for his son's attitude towards him and the hostility between them. The s 100 statement contains no confession by the deceased that he ill-treated his wife or that he put little time into his son's youth. A more honest document might have some weight with the Court, given the Court's findings. These statements carry little or no weight.
The statements come from a narrow perspective, takes no responsibility for the present situation, and blame Peter for their poor relationship. Ironically, in a well-argued case, Ms Petrie submitted that Peter failed to take responsibility. And that was partly right. But the same charge can be levelled at the deceased even more effectively.

[15]

Interaction between the deceased and Peter - 2012 to 2020

Between 2012 and 2020 the deceased and Peter both lived in the Shoal Bay area, despite Peter's living situation being somewhat nomadic. Neither were working full-time. There were many opportunities for Peter and the deceased to see one another, whether by plan or by accident. Save for when Marilyn stayed at the Shoal Bay property, Peter was the relative living closest to the deceased.
Lorraine and Marilyn detailed times in those recent years that Peter would harass the deceased by banging on the door or walls of his house, or by yelling verbal abuse in the direction of the deceased's house when passing by. They became aware of these incidents through telephone conversations with the deceased, calendar notations and diary entries. The Court accepts the deceased did give them an account of these incidents.
Peter rejects these claims. But the encounters between the deceased and Peter must be analysed as part of a sporadic and still difficult relationship. The truth lies somewhere between his account and the filtered version the deceased's sisters had obtained from him. They say the deceased was afraid of Peter. But it is more likely by this time that Peter just made the deceased feel uncomfortable because his manner was unpredictable. If Peter banged on the door or walls it was probably an expression of frustration at not gaining acceptance by the deceased, a feeling that long troubled Peter.
Contemporaneous notes of the deceased in early October 2013, corroborated by evidence of Marilyn and Lorraine, suggest that Peter approached the deceased to move in with him at the Shoal Bay property. The deceased 'politely refused'. This encounter coincides with the period after Peter's mining labour hire venture collapsed leaving him unemployed. Peter had fallen on hard times. It is unsurprising that he would approach the deceased for accommodation, as he had done in the past. It is equally foreseeable that the denial of that request would later cause frustration to Peter, especially when he later had to live out of his car.
The deceased's sisters, Lorraine and Marilyn repeated that Peter's behaviour towards the deceased was abusive. That is undoubtedly true of times in Peter's younger years.
But their evidence about the later years was in part based on what the deceased told them especially about being annoyed by Peter coming around to his house. Otherwise their accounts were based on only a few occasions witnessing a few isolated interactions between Peter and the deceased. This is a slender foundation on which to base their later opinion.
Marilyn and Lorraine had a positive and supportive relationship with the deceased throughout their lives. They could not easily understand the interactions between Peter and the deceased. It can readily accept that Peter and the deceased had a poor relationship. It had little chance of improving following the friction during Peter's teenage years and following their altercation in 2001. But although the exchanges between Peter and the deceased in the later years are confusing to interpret, several of them evidence a genuine intention to reconcile on Peter's part but an inability to do so on the deceased's part.
Both Marilyn and Peter recount an occasion in January of 2020 where Peter visited the deceased at the Shoal Bay property, and where Peter asked his father whether he loved him. Peter was genuine in this, he explained in his evidence: "Mr Brown: Can I ask you, there's a reference that you visited your father just before he passed away. And I wanted to clarify if that was one of the examples of when you apologised. The defendant puts it, as you asked your father to indicate whether he still loved you. Do you recall that? Plaintiff: Yes, I do. Mr Brown: When you were asking your father to indicate whether he would express any love towards you, what were you trying to do by that? Plaintiff: I just wanted to hear that he loved me."
Marilyn was present visiting the deceased on this occasion. She provided a similar recount of the interaction. But she also captures the deceased's response: "Mr Brown: When Peter said to his father, 'I just need you to say you love me', you were present? Defendant: I was. … His Honour: Peter was there for a short time, then he left, as I understand it. Is that right? Defendant: Yes. He came to the door and said, 'I've had a wonderful day, and it just needs one more thing, for you to tell me that I - you love me.' That's all it was, and then he left with expletives. Mr Brown: Just to go back, the deceased said something, didn't he? Defendant: 'That's not going to happen' he said. He had his head down in his knees."
This interaction occurred a few weeks before the deceased's sudden and unexpected death. The conversation, although harsh, does not indicate estrangement. Nor, due to the sudden and unexpected nature of the deceased's death shortly afterwards, does it suggest Peter was making a convenient and self-interested effort to make amends with the deceased.
This incident also shows that the deceased's contemporaneous calendar entries, which do not appear to record Peter's visit on that day, are not a reliable indicator of all the days that Peter visited his father in this late period. The deceased did record visits or calls with others, including his siblings on his calendar. For example, within the month of February 2020, he recorded four entries of 'M visit' or 'visit M', three entries of 'rang Alan' or 'talked to Alan' and two entries of 'Lorraine' or 'Lorraine R'. But it is difficult to rely on the deceased's contemporaneous notes and calendar entries to infer the frequency in which Peter visited the deceased.
Evidence from Peter, which the Court accepts, details his other attempts to apologise and reconcile with the deceased: "Mr Brown: Mr Dodd, yesterday you were asked some questions and one of your responses was, "I apologised a lot of times to him, but he never apologised to me." Do you recall that? Plaintiff: Yes, I do. Mr Brown: Could you just expand on his Honour, if you can recall any specific examples of you apologising to your father, can you recall them? Plaintiff: The incidence where an AVO was placed on me. There was numerous times there I'd - I'd knock on Dad's door before he passed away and just [say] sorry for my actions."
These interactions, which occurred later in the lives of Peter and the deceased, do not show the same anger, volatility and coldness which existed between the pair in the earlier years. No evidence of a flourishing relationship between Peter and the deceased was adduced. But the interactions within the later years indicate improvement from the early 2000s. They do not indicate estrangement between Peter and the deceased.
Peter did not attend his father's funeral. This is not to be held against him. Some family members decided he should not go to the funeral. According to the plaintiff, in evidence which the Court accepts, the deceased's brother Alan said to Peter that if he was to attend the police would be called. Peter asked why he was being banned and was told, "for the trouble you caused." The Court accepts that he chose in the interests of keeping peace within the family not to attend the funeral.

[16]

The Medical Evidence

Peter was referred in March 2021 to a psychiatrist, Dr Brian Potter, for a medicolegal assessment. A report was requested from Dr Potter in a background of Peter's issues with violence and anger management and his need for psychiatric assistance. Dr Potter reported on 12 April 2021. He also had a teleconference with Peter in January 2021 and reported consequent upon that on 17 January 2022.
Dr Potter gave professional expert evidence that the Court wholly accepts. His analysis was well reasoned and he was able to meet all the questions raised about his analysis.
Dr Potter's overall diagnosis as a result of his consultation with Peter was: "Mr Dodd's history and presentation is complex. He has no overt features of a formal psychiatric diagnosis. However, he does demonstrate a fragile emotional functioning with which, if seen therapeutically, he will be seen over a number of sessions with an extended assessment supported by whatever independent material about him was available and whatever tests thought to be necessary. The fragile emotional functioning has had an accepted expression of anger and violence. He presented within a schizoid type of functioning which would be consistent with a developmental emotional trauma from his described experience of having been abandoned by a punitive father, or a condition such as Attention Deficit Hyperactivity Disorder or autistic type of functioning. Within the material available for this assessment, including the history provided by his mother in her Affidavit, it is most likely that he has an underlying emotional fragility/disturbance related to a traumatic relationship with his father and expressed in behaviour of repeated failure in relationships and a drifting, solitary way of functioning in the world with anger including physically expressed outbursts."
Dr Potter included the following in his "Summary and Discussion" in his 12 April 2021 report: "Within his fragile emotional functioning, there is a brittleness within his lifestyle with a concern about his future and longevity. He will be wise to become involved in a long-term therapeutic psychotherapy type of relationship. Someone with whom he trusts sufficiently to develop an initially stable attachment which, if therapeutic, would become more important to him with increased regularity of contact, and a better prognosis in life."
When asked about whether or not Peter had any undiagnosed or diagnosed medical conditions, Dr Potter said: "From a psychiatric perspective, with this assessment, and without sufficient information to provide a definitive diagnosis, his history and presentation is consistent with an emotional fragility which is likely to have the origin of his experience of having been treated in a rejecting manner by his father and having grown up in a household of domestic violence with the clinical expression of emotional dysfunction including anger and violence. Reflecting the comments provided under the heading of 'Diagnosis' in the body of the report, he could have Attention Deficit Hyperactivity Disorder or an autistic functioning or reflecting my earlier comments, a Complex Post-Traumatic Stress Disorder. Whatever the definitive diagnosis, there is no doubt from his history and presentation at this assessment, is consistent with an emotional fragility with a behavioural expression."
Dr Potter gave the following opinion as to the relationship between his diagnosis and the long conflict between Peter and the deceased: "It is clinically reasonable to accept that in significant part, Mr Dodd's disturbing emotional expression and struggle in intimate relationships is a reflection of having lived in a household of domestic violence and a rejection from a father, even if with attention hyperactive or autistic features."
The Court's observations of Peter were consistent with Dr Potter's analysis. Peter appeared to want paternal affection, support and trust but he had long been deprived of it. The Court accepts his evidence that he wanted such a relationship: "Ms Petrie: During the conversation with Lorraine, you said to her, 'My father had asked me to leave him alone, which I have done for 20 years.' You said that, didn't you? Plaintiff: My father just didn't want hassle - didn't want to get hassled. Neither did I. I just wanted to make amends with me dad. … Ms Petrie: He says that at the time of his 2000 will, he believed the relationship between you both was beyond salvaging and further has irretrievably broken down. Do you think that that's an accurate statement of how your relationship was with your father‑‑ Plaintiff: That may have been‑‑ Ms Petrie: ‑‑as at 2007? Plaintiff: ‑‑that may have been his opinion but that wasn't mine. Until the end, I tried to be his son. His Honour: Given the way that he was, you say, he was treated you (sic), why did you keep trying? Plaintiff: He was my dad, your Honour. Because of the way it's looking now, only on paper."
Peter remained puzzled and frustrated by his father's rejection of him later in both their lives.
The Court wholly accepts Dr Potter's analysis of the nature and origins of Peter's disturbed personality and his present need for therapy. That accepted evidence is set out here as findings of the Court.
Dr Potter recognised that Peter was deeply disturbed but he explained the origins of that disturbance in the following way: "Overall, that Peter Dodd is a very disturbed man and his disturbance is most likely due to be out of a life of trauma - emotional trauma - through parental rejection and parental conflict; that is, between the parents, which has then led to him leading a life where he's struggled with living, work and relationships."
Dr Potter explained that Peter needs and would benefit from therapy from a psychiatrist, a psychologist, or a social worker. The purpose of the therapy is not necessarily to see a patient such as Peter regularly but to be available when needed. Dr Potter says that a patient in Peter's situation may only come to the therapist when they are in a crisis or they have done "something bad", approaching the therapist somewhat like a parent. But the primary problem with a person who has grown up with a traumatic emotional rejection is that they do not learn that basic element that people need in society to survive; to learn to survive in a society based on trust. So, the first task for the patient and the therapist is to develop a trust with the therapist, and that can be a prolonged process. If that trust develops there is a chance, that the therapy will be successful. Dr Potter said he would not take on Peter because he is in his mid-70s and this is a relationship that he expected could well last 10 years.
As a result, as Dr Potter explained depending on how long the sessions were, "the costs won't be insignificant, and the costs will depend on the basic qualifications of the individual". The kind of person Dr Potter has in mind would have primary training as a psychiatrist, a psychologist, or a social worker. But they will have undertaken extra training to be able to do this sort of work, which is described as, psychotherapy, analytic psychotherapy, or reflective psychotherapy. The therapist develops a relationship with someone, where they come and talk as openly as they can to the therapist who then helps them understand what their emotional makeup is, and how "they're not living life properly - they're not living life in a helpful way to themselves because of that". Dr Potter was of the opinion that someone like Peter Dodd, would require years of such therapeutic involvement.
According to Dr Potter the deceased's relationship with Colleen was almost as important in ensuring Peter's stability as was his direct relationship with Peter. Colleen and Peter had a good relationship, throughout his young years and the quality of that relationship was evident still in the courtroom. Dr Potter indicated that even if one parent has difficulty with dealing with the adoption of a child, if that parent respects the other parent who has the better relationship with the adopted child the problem will be much reduced. But as Dr Potter said, "if the father wasn't able to accept a relationship with the mother, then that would compound the problem". Here, the deteriorating relationship between the deceased and Colleen exacerbated the problem of the deceased's poor relationship with Peter. And the deceased bears a significant responsibility for the problems in both relationships.
Dr Potter explained Peter's continuing efforts to contact his father despite his father's rejection of him. He explained it as follows: "…that we're born fundamentally, knowing somewhere inside ourselves - we know emotionally that to grow and to develop we have to have trusting relationship with human beings. And we know that that comes primarily from our parents at the beginning of life so that - I would see that as a person who tried desperately all through his life, despite rejection, trying to have a relationship in a way that he knew was important and necessary for him to be able to live a life."
Ms Petrie cross-examined Dr Potter to suggest that other causes account for the break down in Peter's relationship with his father, namely Peter's criminal activity, his drug use and his physical violence towards his father. But the Court accepts Dr Potter's analysis that clinically, he would see all that conduct as a "consistent expression in Peter Dodd of the history he gave of the rejection by the father". He regarded Peter's behaviour as consistent with his analysis and said "I would be surprised if he wasn't like that [namely exhibiting conduct of rage and frustration]". But Dr Potter was prepared to accept that the Peter's drugtaking would have exacerbated the anger and rage that Peter displayed.
Ms Petrie also put to Dr Potter that other family members had said that in Peter's formative years he was brought up in a caring and supportive family atmosphere, such that there would likely to be other causes for his behaviour. Dr Potter was cautious about accepting the premise of the question. And in that he was correct. The Court does not accept that the plaintiff was brought up in a caring and supportive family atmosphere; but rather that he was exposed early in life to domestic violence perpetrated by the deceased on his wife.
In summary, the Court concludes from Dr Potter's evidence that Peter's explosive behaviour is a continuing expression of rage and frustration at the lack of a proper emotional relationship developing with his father at an early age. Dr Potter accepts there are other forces that may be at work and that the situation may have been exaggerated by Peter taking drugs and alcohol but even that was a predictable part of Peter's overall behaviour. No other competing theory fits the facts and is consistent with the evidence the Court accepts. Ms Petrie put the available alternative theories, but the Court accepts Dr Potter's rejection of them.

[17]

Peter's Personal Situation and Financial Needs

Peter was born on 26 March 1970. He was almost 52 years old at the time of the hearing. He has three children: two daughters, aged 23 and 17, and a son, aged 15. His eldest daughter was born to a different mother to that of his two younger children.
Peter is homeless. He sleeps in his 1998 Nissan motor vehicle which he parks in the Little Beach Area in Port Stephens. He uses the basic amenities at the Halifax Caravan Park, which is close to his parking spot, but which he is probably not authorised to access. Peter has applied to the New South Wales Department of Housing for urgent accommodation and is currently on a waiting list. It is unknown when suitable social housing will become available, Peter's estimate is that the usual wait is between five and ten years. Having first applied for accommodation in 2014, it may be that housing will become available by 2024, perhaps earlier. Peter is unable to afford long-term rental accommodation in the Hunter Valley area due to his low income and inability to save for a rental bond. Short-term accommodation in the area is cost-prohibitive and well outside his current means. Peter has not had full time employment since 2012 and is currently in receipt of a Centrelink disability pension. He collects bottles from local bins to supplement his pension.
Peter's combined income totals around $1,067 per fortnight. He has fortnightly expenses, including food, petrol, phone, medical, laundromat services, child support and state debt repayments of a total of $932.50. Peter's only asset is his motor vehicle, valued at $1,000. He has a debt to the Office of State Revenue of about $12,000. He owes Mr Nicholas Dan, his solicitor, $15,062.30 which was loaned to him for medical expenses on interest free terms. Thus, Peter's liabilities far exceed his assets. Peter states he is without a surplus after his fortnightly expenses. In his current financial circumstances it is unlikely his debt to Mr Dan will be repaid.
Peter's stated financial needs include housing within the Port Stephens area, reasonably estimated at $400,000, and he asks for costs to acquire this property, including stamp duty, of $20,000. He asks for $20,000 for furniture and white goods for the property, and $20,000 for a second-hand vehicle to replace his 1984 Nissan. This his total accommodation and transport related claim is $460,000.
Peter also seeks a lump sum for his medical and dental expenses. This includes gap fees for psychiatric treatment of his diagnosed psychological conditions of around $20,000 to $30,000, and $15,000 to $20,000 for dentistry work. Thus the total range of this aspect of his claim is $35,000 to $50,000. He also seeks an additional fund to cushion him against the contingencies of life.
In summary, Peter's evidence of his personal situation is both confronting and compelling. The Court accepts it. He is homeless, living in his car, which contains all his worldly possessions. To survive he resorts to rummaging through garbage bins. He needs a new car. Affordable social housing is not a predictable medium-term prospect. In his life of few stable relationships, he does want to develop a stronger relationship with his own children. To achieve this, he needs stable two-bedroom accommodation. He needs psychiatric treatment. He has several teeth missing, making him feel degraded as a human being. The Court observed, as he said in an affidavit evidence, that he avoids smiling and exposing his dental deficiencies.

[18]

Marilyn's Personal History, Situation and Financial Needs

Marilyn was born on 16 August 1952. She studied nursing, completing her registration at Cessnock Hospital in 1974. Marilyn completed her psychiatric certificate at North Ryde Hospital, before completing a short placement at Tomaree Holiday Lodge, a residential disability accommodation facility in the Shoal Bay area. This was around the same time that Colleen Dodd and the deceased purchased the Shoal Bay property. After this placement, Marilyn completed her cardiology certificate in Melbourne, earning her nursing qualifications in cardiac surgery and cardiology.
Marilyn moved to Tasmania in 2002 with her closest friend Carolyn. They purchased a property as joint tenants and together renovated the property. Carolyn was diagnosed with cancer in 2004, and Marilyn resigned to become her full-time carer. Following Carolyn's death in about 2017, Marilyn moved from Tasmania to Port Stephens to be closer to her brothers. She gained casual nursing work through a nursing agency, engaging in shift work in several nursing homes throughout the Newcastle, Maitland and Tea Gardens areas.
After an accomplished 40-year career spent both in research and nursing in this state, Victoria and Tasmania, Marilyn retired as a Registered Nurse in August 2018. Following her retirement, Marilyn gave evidence that she visited the deceased on a weekly basis up until his death. Marilyn stated that the deceased managed his financial and household tasks until his death. But Alan has required more care, having suffered two respiratory arrests in 2019. Marilyn stated that while her brother Alan is still alive, she would remain in the area to look after him, as required.
Marilyn was born on 16 August 1952. She was 69 years old at the time of the hearing. Marilyn did not marry and had no children. Following her retirement as a Registered Nurse in 2018 she became eligible for the pension.
Marilyn resides in a property which she owns and is unencumbered. She retains an equal interest in a property located in Abermain which is also unencumbered. This property was inherited from her late mother, which she owns as tenants-in-common with her older brother Alan. Alan resides in the property, and has done so since it was inherited in 2000. The Court accepts Marilyn's testimony that Alan will live in the property for as long he is able. Marilyn's other assets include her Hyundai motor vehicle worth approximately $3,000, savings of $6,000 and superannuation of about $40,000. She values her home contents and possessions at $5,000. She has no liabilities.
Marilyn receives the Centrelink single supplement aged pension, which comprises her entire income, and totals $472 per week. Marilyn's weekly expenses include insurance, rates, services, groceries, petrol, maintenance, medical and pet-related expenses, totalling approximately $443.08. This leaves a weekly surplus of approximately $28.92. Although Marilyn is without liabilities, her lack of a real financial surplus means she renovates her own home, work which on her evidence is substantial, and has become so difficult with age. Understandably in future she wishes to engage tradespeople to complete this work. Although it is unclear as to the exact renovations which Marilyn's home requires, it can be accepted that its current state is unsatisfactory. Marilyn's current financial needs are for money to either complete these renovations, or to sell her present home and purchase a new home. She explains her financial situation and intentions as follows: "His Honour: I thought I had read it certainly in Ms Petrie's submissions. Anyway, I don't have to make any assumptions. Ms Dodd, if I don't intervene here, you will receive something like $800,000. Defendant : I mean, to me… His Honour: I'm just curious what you would do with it. Defendant: The price of houses at the moment is atrocious, so I just want a house that - I mean, I have - I'm too old to renovate anymore. I've had enough of it. I do my own tiling. I do my own plastering. I do - because I can't afford, basically, to pay people to do it, and in the last two years, with COVID and with this going on, I have just lost all my motivation and energy. I have a hundred jobs to do in my house, so His Honour: So you want to sell your current place and get something that's a bit more modern and doesn't require renovations? Defendant: And I also - the reason I - the current house I had, I put an extra bathroom in in case either of my brothers needed care. That's the reason I moved from Tasmania and all my friends, was to be near my brothers, and I need something. My brother, Alan may need something. If he's in hospital, he may need to recuperate, so I'm always overthinking it - overthinking it, I guess, and catastrophizing it. My siblings are going to get sick and I need to care for them, because all my life I've had to care for parents, my parents and my friend who died, so I figure, the rest of my life, until I have to have care, I'll have to care for people."
Marilyn does not have to prove her need for her entitlements under the will. But her case does seek to rely upon her circumstances as a basis to retain the provision made for her under the will. Yet she does not seek to quantify her financial needs. It is difficult to see her needs for her entitlements under the will as personally urgent, when she had difficulty in readily articulating what she would do with the funds if no provision were made for the plaintiff, beyond looking after others. Her generosity and goodwill towards her family are praise worthy but her own immediate needs for capital are not as pressing as Peter's.
Although the Court accepts Marilyn's evidence about not wishing to move in with her brother at his present property, she has taken the trouble to renovate her existing property to add a bedroom in case she does need to look after her brother. The possibility at least exist that they might live together for a period, freeing up her and her brother's place for sale.
Marilyn says she wants to move to a new house because she fears that Peter will find out where she lives. But she disclosed her present address September 2020 in an affidavit attaching probate of the deceased's will. She has not attempted to move in the meantime. And Peter has not breached the ADVO. The Court does not accept that needing to move for this reason is a strong priority in her life.
Marilyn did not at first disclose in her case her joint interest with her brother in the property he occupies. Peter's case contends that this was deliberate, and that even though she disclosed it to Centrelink, she only disclosed it when she became aware an agent had been organised by the plaintiff to conduct a drive by appraisal of the property and a notice to produce was issued to her about documents relating to her financial need. But the Court accepts her evidence that she overlooked an earlier disclosure. This is plausible because the property is under her brother's day-to-day practical control.

[21]

Applicable Legal Principles

The test of whether provision should be made in any case is set out in Succession Act, s 59(1)(c): "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: … (c) 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, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both."
There are many judicial statements summarising the operation of what is said to be a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation: "The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co. 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. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." [citations omitted]
Whether the two-step test operated with the same full vigour in the current legislation has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case, which is a very clear one on the question of whether or not adequate provision has been made for Peter once he has been shown to be an eligible person.
Some other authorities have explained in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ in Drury v Smith [2012] NSWSC 1067 at [153], [154], [155], [158] and [160], which relevantly provides:- "[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" [154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import (McCosker v McCosker (1957) 97 CLR 566 at 575). The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." [155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." … [158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement of life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." … [160] In Vigolo v Bostin [2005] 221 CLR 191 at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.""
The purpose of the Succession Act is not to provide compensation for any past failure in terms of the deceased's legal or moral duty to be good and responsible parent; nor is its purpose to punish or provide a legacy by way of damages for past abuse or immoral conduct by the deceased: Williamson v Williamson [2011] NSWSC 228 at [124] - [125] ("Williamson"); Cameron v Cameron [2009] SASC 27 ("Cameron") and see also Pulitano v Pulitano [2019] NSWSC 1688 at [126] ("Pulitano").
But the Court may take into account the past conduct of the deceased where it provides an explanation for the current position of the plaintiff giving rise to additional needs and the deceased's past conduct and proven abuse is not irrelevant were it to have the effect of depriving the plaintiff of opportunities in life or where there is some causal connection between it and the plaintiff's need for provision: Williamson at [127]; Litchfield v Smith & Timgate [2010] VSC 466 at [57] and Pulitano at [127].
The judges in family provision cases have long stated the obvious fact of human experience that even small assistance at early stages of life can transform a person's economic opportunities later: Gaudron v Parks (1989) 17 NSWLR 1 at 12. The converse is obviously also a part of human experience that negative conduct by a parent at an early stage in a child's life can create a major impediment to a person's economic opportunities later.
If an order for provision were to be made in the plaintiffs favour this case raises the issue of whether the proceeds of such an order should be placed in a protective trust for the benefit of the plaintiff. A possibility that a plaintiff might squander provision made for him is not a ground for denial of provision but a factor that goes to the form of any order made for provision: Estate Amiesen [2020] NSWSC 528 per Lindsay J at [13] - [14], Carroll v Codeburn [2003] NSWSC 248 at 17; West v France [2010] NSWCA 458 at 82-88; and Hampson v Hampson [2010] NSWCA 359; 5 ASTLR 116 at [97] - [102].
The Court may impose conditions upon and make consequential orders affecting the manner in which provision is provided: Succession Act, ss 65 and 66. Those powers extend to an order that provision for a plaintiff be made in the form of a legacy to be held by a trustee on protective trusts for the plaintiff: The Claim v Public Trustee [2010] NSWSC 970 at [20] - [21] and [24]. The fact the plaintiff has been to prison is not necessarily a factor precluding making an order in his favour. In Bienke v Bienke; the estate of the late Harold Bienke [2002] NSWSC 804 an order was made in favour of the grandson with a chronic history of drug and alcohol abuse and a gambling problem. In McLean v Public Trustee [2001] NSWSC 970 a daughter had an order made in her favour for a legacy conditioned as to its use. And in Hodely v Hodely (Supreme Court NSW, Young J, 17 February 1987, unreported) an order for provision was made in favour of an adult child who spent 20 years in prison. Finally, in Fricano v Lagana [2009] NSWSC 840 Macready AsJ made a provision in the form of a legacy held upon the terms of the protective trust allowing capital to be advanced over time for his benefit.
That then leaves the Court to decide what is appropriate provision in this case.

[22]

Consideration

The Defendant's Submissions. Ms Petrie submits on Marilyn's behalf that Peter's assault on the deceased had a profound and lasting impact on the deceased's relationship with him. She submits that from that time onwards, the deceased was fearful of ever again becoming victim of Peter's aggression and violence, and justifiably so. Marilyn further submits that after the assault Peter failed to make any genuine attempt to reconcile with the deceased. Alternatively, she submits that if attempts at reconciliation are found to have occurred that there was nevertheless a continued estrangement, because the deceased had a justifiable fear of Peter being aggressive towards him.
In short, Marilyn submits that Peter's violent and aggressive conduct towards the deceased and the long period of estrangement justified the deceased not making further provision in the will and that Peter's claim for provision must fail.
Marilyn's submissions also addressed in the alternative case that further provision might be made in Peter's favour. That alternative submission was that Peter's conduct and the long period of estrangement should constrain the quantum of any provision to be made for him. If provision were to be made, Marilyn submits that a lump sum of no more than $75,000 would be adequate provision for Peter, being equal to approximately 10% of the value of the estate. This figure is said to be sufficient to assist him to pay for anger management counselling which, if successful, would contribute to greatly improving his situation in life and providing a cushion against the vicissitudes of life. Marilyn submits that no greater amount would be justified in the circumstances.
The Plaintiff's Submissions. On behalf of Peter, Mr Brown resists the characterisation of this case as an "estrangement case". He submits that estrangement cases are ones in which there is absolutely no contact between either party. Mr Brown submits that even on Marilyn's own case it is accepted that there has been contact between Peter and the deceased, particularly in the last few years of the deceased's life. He submits it should be accepted on Marilyn's own case that Peter went to the deceased's house from time to time and that they had conversations. Peter's case accepts, as it must, that there are character and conduct issues that need to be taken into account against him. But he submits that the lay and medical evidence strongly suggests that the plaintiff's behaviour was shaped by the deceased's rejection of him from an early age.
Peter's case also relies heavily upon what he submits is Peter's demonstrable financial need. He submits it is rare to see a plaintiff in as strained financial circumstances as Peter now finds himself, homeless and living out of his car.
Consideration. The deceased had a continuing testamentary obligation to Peter. The Succession Act recognises that Peter, as the deceased's son, qualifies as an "eligible person" and is a proper object of the deceased testamentary bounty. The deceased displaced Peter from his testamentary bounty with Marilyn, who is not an eligible person. Subject to issues of estrangement and conduct towards the deceased, Peter's relationship with the deceased and his parlous financial position give him a strong claim on the deceased's estate.
As to estrangement, Mr Brown's submissions on behalf of Peter should be accepted. This is not an estrangement case. Peter attempted to continue a relationship with the deceased. The deceased firmly rejected his efforts. In the last few years of the deceased's life, Peter's reconciliation efforts turned out to be one-sided. The deceased was not prepared to accept the possibility that Peter's efforts may have been genuine.
But in that he was wrong. Though unpalatable to the deceased, Peter's efforts were genuine. That fits both the psychiatric evidence of Peter seeking to fill the void of lack trust in those close to him and Peter's own account of wanting his father to acknowledge he felt some affection towards him. Moreover, the defendant's case that the plaintiff had a secondary motivation of financial gain upon the deceased's death too readily draws upon hindsight. Peter did not know the deceased was going to die when he did. And his efforts to reconcile with the deceased had been taken place for some years.
And it can be inferred that the deceased rejecting Peter is one important factor behind Peter's current financial need. It is not difficult to infer that if the deceased had given him some acceptance that temporary shared accommodation would have kept Peter off the streets.
As to Peter's relationship with the deceased, several things must be said.
The dynamic of the relationship has its origins long ago and the deceased bears significant responsibility for the poverty of the relationship due to his conduct neglecting Peter's emotional needs for a proper relationship with his father, when Peter was very young. The relationship was undoubtedly worsened by the plaintiff's propensity to adolescent mischief and ultimately violent and other criminal misbehaviour.
Peter did assault the deceased more than once. But the last incident was a long time ago, almost 20 years before the deceased died. It led the deceased to stay distant from Peter out of caution.
The factors that prove lack of estrangement also tend to establish the real dynamic of the relationship between Peter and the deceased. Peter was open to that relationship. The deceased was closed to it and had been for 25 years before his death. To the deceased the fact that Peter was not part of his life was Peter's fault, but that judgment showed a lack of objective insight on the part of the deceased. The deceased's thinking was also later driven by his own caution about Peter's explosive temper.
The deceased's own conduct in 2001 in offering Peter a place to live to avoid him being returned to jail, expressed some residue of paternal obligation towards his son, despite having excluded him from his 1996 will.
The question remains how that obligation should now be quantified in the terms that the Succession Act requires. This requires analysis of Peter's needs but that must be considered with wider factors, including Marilyn's undoubted need for capital. And as Chan v Chan [2016] NSWCA 222 at [22] reminds, the plaintiff's lack of financial resources is not the only factor driving the Court's determination of adequate provision, as an applicant's needs are but one indicator of adequate provision. Strong as those needs are in this case, a significant factor to be considered in determining provision for Peter is simply the fact that he is the only child of the deceased who was not estranged from him.
The submissions of both parties take positions that are too extreme and do not represent a proper application of principle. On the one hand, Marilyn submits that if the Court is to award anything to Peter that it should be no more than $75,000, representing a sum which would cover some of his medical and dental costs and give him a small sum to deal with emergencies.
But this is neither a proper nor adequate measure of what should be awarded to Peter. An award of that order would leave him still living out of his car, an old and unreliable vehicle at that. He would not have any assurance of the basic human need of shelter within the next 2 to 3 years and possibly longer. That is neither adequate nor proper recognition of the deceased's obligation to him. Such an outcome would also leave Marilyn with over $700,000. She could undoubtedly deploy to her benefit a lesser sum than that but she seemed at a loss to explain whether she had an immediate need for much more than $300,000 to $400,000. When she was asked to explain what she would do with $800,000, she could not really answer the Court.
But Peter's submissions take an equally extreme position. First, he submits he should be awarded a sum of approximately $600,000, This is to cover all his accommodation and transport requirements up to $460,000, with further medical expenses of up to $50,000 leading to a figure of a little over $500,000. In addition to that he seeks a fund to cushion him against the contingencies of life, leading to a higher award. Such an outcome pays insufficient regard to the uncertainties that Marilyn will face in her future life. Peter's submissions assume that Marilyn can move in with Alan to take care of him and sell her existing house to solve its maintenance problems, turning it into capital which she can then deploy to protect herself against the vicissitudes of life.
There are several problems with this scenario. She was generally and properly reluctant to move in with Alan, who the Court accepts was resistant to such a course. As an aged care nurse, Marilyn strongly respected his need for independent living and would considerably not force her care upon him.
Marilyn and Alan own the Dodd family home as tenants in common. There is no assurance that were Alan to die before Marilyn that she would receive the other half of the property, such that it could be inferred that this family home would be her long-term accommodation. Even if it could be so inferred, the property requires considerable maintenance.
Moreover, Marilyn can be predicted to incur significant costs in re-accommodating herself once and possibly twice in the near to medium term. The Court accepts she is determined to sell her present property rather than pay for its maintenance and improvement, incurring transaction expenses associated with the sale and the acquisition of items to suit her in new accommodation. Then, in the medium term she may return to the comfort and support of her longer-term friendships in Tasmania. She has come to New South Wales to look after ailing relatives but her lifelong friendships are in Tasmania. Her move to New South Wales has involved considerable personal sacrifice for the sake of her family. Moving back to Tasmania later in life is a reasonable expectation on her part.
These considerations of the core individual needs of the plaintiff and the defendant point to an appropriate outcome in the proceedings. The plaintiff's fundamental need is for accommodation and some capacity to travel to see friends and relatives and attend to his personal needs and gain some fulfilment in life. His position on the waiting list for social housing is uncertain. That means, in my view, he should be given further provision by way of an order of at least $460,000. Looking at the plaintiff now an award to give him appropriate shelter is as demanding and urgent as it is in any plaintiff's case given his precarious living situation. Living out of his car he is at an increased risk of disease and violence. But waiting times on the NSW Housing Register are uncertain. Peter has not been told that he will be allocated affordable housing in the near term. The Court cannot approach consideration of this case on the basis that he will be allocated affordable housing. It remains a possibility and the timing is uncertain. In the meantime, he lives in desperate circumstances. This case should be approached on the basis that he has a pressing need for immediate accommodation.
But he also has pressing medical needs, which should be covered. Dr Potter's evidence shows he would benefit from medical therapy by a psychiatrist in the longer term and close to the full amount claimed for this should be allowed, namely $25,000. And he should be allowed $15,000 for dentistry work. Together these sums amount to $500,000. A small further sum should be awarded to protect him against the vicissitudes of life in the amount of $20,000.
Given the constraints that have been placed upon costs in the proceedings and the Court's fixing of those in this judgment it can be said with some certainty that as a result of this award Marilyn will receive in excess of $280,000 from the estate of the deceased. In my view, this leaves her with a sum adequate for her foreseeable needs. Even if she were to spend $80,000 of that renovating and improving her present residence rather than moving she still has a fund of $200,000 to cover the expenses of ultimately moving to Tasmania and providing her a fund for life there on the basis that she could acquire a house at much the same cost as the one in which she is is now living. But the same fund would also allow her enough to acquire a house closer to Alan. And she always has at least the possibility of realising the half share in the house in which Alan is now living.
For these reasons the Court will order a legacy out of the estate in favour of the plaintiff in the sum of $520,000.
The position should be secured to ensure that any amount that the Court might order by way of further provision for Peter is not squandered. Peter's most recent drug conviction was six years ago, and this is not one of those cases where liquid funds would be placed into the hands of a plaintiff in the thrall of a drug addiction. But Peter has never handled this amount of money and the unpredictable side of his character raises the risk of its misapplication. The Court will therefore require the funds to be held on trust to be applied on his behalf to the various components of expenditure and the purposes described in this judgment.
In the highest traditions of legal practice, Peter's solicitor, Mr Dan has volunteered to act, with another officer of the Court, as the trustee of any funds awarded to Peter. Mr Dan has Peter's trust. Peter spoke openly and reassuringly of that in evidence. As Dr Potter explained the restoration and maintenance of trust is an important component of Peter's life. The setting up of such a trust may indeed benefit him.
It may be that a public or local charitable organisation may be able to provide a suitable co-trustee for Mr Dan. The terms of such a trust will need to be settled. This can be done in chambers pursuant to liberty to apply. Mr Dan's office will be at liberty to correspond with my Associate to give effect to this aspect.

[23]

Fixing Costs

The deceased's estate is liquid. This judgment will allow the administration of the estate to be concluded rapidly. That process can be accelerated, if the Court reduces inter party disputes about costs. The Court has the advantage of the affidavits of costs that were served in accordance with the pretrial directions. Using those figures the Court can fix a lump sum instead of assessed costs.
The Court has ample power to do so. The categories of case in which the Court will make a gross sum costs order instead of assessed costs under Civil Procedure Act, s 98(4)(c) are not closed: Harrison v Schipp (2002) 54 NSWLR 738. The Court will exercise the power wherever it serves the administration of justice. An equally ample power exists under Succession Act, s 99 to make such an order to hasten the final administration of the estate.
From the Court's experience the costs charged in these proceedings are within the range of what is reasonable for proceedings of this kind.
The defendant's costs of these proceedings on an indemnity basis, including a four-day hearing, are $115,000 (including $10,000 per day for each hearing day). The Court was able to conclude the proceedings in two and a half days, representing a saving of $15,000. But the conclusion of the hearing is not the end of the costs of the proceedings. Returning briefs, closing files, dispersing funds and corresponding with clients and public authorities as well as other ancillary matters will incur some costs related to the proceedings before they are finally concluded no matter how much cost disputes are reduced. The Court will allow the defendant's costs to include in effect the equivalent of a three-day hearing to cover these ancillary costs.
The Court will therefore allow a total of $105,000 to the defendants. These costs will be allowed in addition to the other probate costs and the possession list proceedings costs referred to above, which the defendant is also entitled to deduct from the estate on the indemnity basis.
The Court's determination of this sum is solely for the purpose of reducing inter parte disputes. It is not designed to prejudice client rights under the Legal Profession Act 2014 to seek an assessment of legal costs. Only costs issues between party and party are resolved here.
The plaintiff's costs of these proceedings are higher than the defendant's costs. This is not unusual. A greater evidentiary burden lies upon a plaintiff. The plaintiff estimated the total costs of preparation, including a four-day hearing calculated on the ordinary basis for $125,000 and on the indemnity basis $145,000. The gap of $20,000 will be dealt with separately. Up until mid-January 2022 the plaintiff's costs calculated on the ordinary basis were $65,000 and on the indemnity basis $80,000. It was estimated that the further costs incurred by the plaintiff to completion of a four-day hearing would be $60,000 on the ordinary basis and $65,000 on the indemnity basis. The plaintiff's solicitor Mr Dan has undertaken his retainer in the proceedings on a contingency basis, but he is not charging an uplift fee. This considerate approach to a needy client will assist the plaintiff to achieve the best financial outcome. Mr Dan estimates that there would be a saving of $7,500 per day plus GST for every day less than four days occupied by the hearing.
The plaintiff's fees will be allowed on the same basis as the defendant's fees under a combination of Civil Procedure Act, s 98(4)(c) and Succession Act, s 99 in the sum of $120,000 on the ordinary basis and on an indemnity basis $140,000. This will permit the plaintiff to complete post hearing administration quickly.
Once a trust deed is prepared in accordance with the Court's orders, the Court will make supplementary orders in chambers permitting the trustees to deduct the differential between Peter's costs on an indemnity basis and the ordinary basis from the amount paid into the trust to meet Mr Dan's fees before he becomes a trustee, as the Court regards his fees as reasonable. But an order to set up the trust is necessary before such orders are made.

At a glance

Court

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Source

Catchwords

Judgment (26 paragraphs)

Parties

Cases Cited (22)