Succession - Family provision and maintenance - Failure by testator to make sufficient provision for applicant - Duty of testator - Duty to children - Long estrangement.

Testator's Family Maintenance Act 1912 (Tas), s3(1).

Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191; Nicholls v Hall [2007] NSWCA 356; Gorton v Parks (1989) 17 NSWLR 1, applied.

Judgment Number: [2011] TASSC 34

PATRICE ALISON DODDRIDGE v ROBERT JOHN BADENACH,

1 The applicant, Patrice Doddridge, is the sole child of the testator, Jeffrey Doddridge, who died on 1 September 2009, leaving, by his will, his estate to the second respondent, Roger Calvert. The applicant applies for an order pursuant to the Testator's Family Maintenance Act 1912, s3(1), that provision be made for her out of the testator's estate. That subsection is as follows:

"3 Claims for maintenance against estate of deceased person

(1) If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit."

2 Jeffrey Doddridge was born on 20 May 1931. He married the applicant's mother Gwen Grant. The applicant is the only child of their marriage. She is now 41 years of age. In 1973, when the applicant was about three years of age, her parents separated and soon after divorced. Following the separation the applicant resided with her mother and thereafter, save for one chance meeting, she had no involvement with her father. He was 78 years of age when he died.

4 The testator met Jane Calvert, a widow, who is the mother of Roger Calvert. Roger Calvert first met the testator in 1976, when visiting Tasmania. He was then 20 years of age. He is now 65 years of age. When the testator and Roger Calvert met, the testator and Roger Calvert's mother were residing together. They continued to reside together until Mrs Calvert 's death in February 2006.

5 In 1977, Mr Calvert returned to Tasmania to live. Thereafter he and the testator enjoyed a close relationship, they went into business ventures together, worked together, pursued recreational activities together, and jointly purchased property. In substance, the testator was Roger Calvert's stepfather. Mr Calvert named his eldest child after the testator, and his children referred to Mr Calvert's mother and the testator as "nanna and poppy". In 2003, Mr Calvert and his family moved to Queensland. The testator and Mr Calvert's mother remained in Tasmania.

6 There are two stages involved in the assessment of a claim such as the applicant's, Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201. In that decision Mason CJ, Deane and McHugh JJ said, at 209 - 210:

"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 Ltd. 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."

7 The explanation in the decision of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476, that is referred to in the above passage is as follows:

"The first thing to be noticed is that the powers given to the Court only arise when any of the persons mentioned is left without adequate provision for his or her proper maintenance, which word will be used in this judgment where necessary as including education and advancement. The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate.' A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances. A father with a large family and a small fortune can often only afford to leave each of his children a sum insufficient for his 'adequate' maintenance. Nevertheless, such sum cannot be described as not providing for his 'proper' maintenance, taking into consideration 'all the circumstances of the case' as the sub-section requires shall be done."

8 In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Gleeson CJ, pars[24] and [25], and Callinan and Heydon JJ, par[121], confirmed that there are moral aspects to the concept of what is proper when determining both whether, and, if so, how much provision should be made for an applicant. If the Court is satisfied that an applicant has been left without adequate provision for his or her proper maintenance and support, it may order that such provision be made for the applicant as, having regard to all the circumstances of the case, it thinks proper. Such a provision "is that which a just and wise father would have thought it his moral duty to make ... had he been fully aware of all the relevant circumstances": in Re Allen (deceased), Allen v Manchester (1922) NZLR 218, 220 - 221 and Bosch v Perpetual Trustee Company (supra), at 479.

9 From the applicant's birth in July 1969, until the separation of her parents in 1973, she and they resided in Lansdowne Crescent, West Hobart at the home of her father's parents, Sydney and Frances Doddridge. Sydney Doddridge died in 1970. After the applicant's father left that home the applicant and her mother continued to live with Frances Doddridge for a short time until moving to live with the parents of the applicant's mother in their home in Hill Street, West Hobart. Following this move Evelyn Parker, the sister of Frances Doddridge, moved to live with her at Lansdowne Crescent. The applicant and her mother visited them daily to ensure that they were all right and assist with whatever they required around their home. Frances Doddridge died in 1983.

10 The upstairs section of the Hill Street home of the applicant's maternal grandparents was blocked off and rented out to tenants. She and her mother lived downstairs with her maternal grandparents. She and her mother shared a bedroom until she was in her early 20s, when the upstairs section of the home was re-incorporated into the downstairs section of the home.

11 The applicant's mother devoted her time to caring for the applicant and her parents and did not take up employment. Initially her mother was solely reliant on a pension. She had previously worked as a seamstress and it seems that on occasions she took in this form of work. Their poor financial position was apparent to the applicant from an early age. As her mother did not own a car or drive they used public transport or walked. During the applicant's childhood, so far as she was aware, her father paid no maintenance for her. However, when in her mid-20s, the applicant had a conversation with her mother about the degree to which her father had contributed financially to her upbringing. Her mother told her that he had made one payment a few years after his mother's death, he having inherited half of his mother's estate. This would have been in about 1985 when the applicant turned 16. Save that the payment was not a huge amount, the applicant had no recall of being told how much it was. At no stage during her childhood or teenage years did the applicant notice any improvement in the standard of living or lifestyle of herself and her mother.

12 When young the applicant got upset about the fact that her parents had separated and thought that her father did not love her, but, in the course of time, her sadness lessened and she began to accept life without a father.

13 Following her parents' separation, her father made no attempt to contact her or have a relationship with her. She did not hear from him, or receive any correspondence or telephone calls from him. At Christmas and on her birthday she received presents which purported to come from him. This continued up to the time of the death of his mother. The presents were given to the applicant by the testator's mother and the applicant believes that they were organised and paid for by his mother. Shortly prior to the death of the testator's mother, as the applicant was leaving his mother's home following a visit, she met her father as he was arriving to visit his mother. The applicant initiated a hug which he reciprocated. He then continued into his mother's residence. The applicant does not recall what was said. He did not appear to be happy to see her, or say or do anything to suggest future contact. Following his mother's death he did not communicate with the applicant. On a day in the early 1990s when the applicant was walking a couple of steps ahead of her mother through the city, her mother grabbed her arm and told her she had seen the applicant's father walk past. Her mother said he had looked at her. The applicant had not seen or recognised her father and turned back to look for him, however she did not know what he would look like. She does not know if he had seen her.

14 The applicant attended a primary school and then a college in West Hobart. She obtained full time casual employment over the summer holidays during the last two years of her schooling. Her earnings mostly went on household expenses. She was unable to complete her grade 12 exams due to the symptoms of Chron's disease. She was marked on her internal grades. Her aspiration had been to study law. However, largely because of her mother's poor financial situation, the applicant decided to seek employment rather than continue her education to a tertiary level. She felt that she should assist her mother to provide for the household, and she was encouraged by her mother to do so. Thereafter she always paid board. Had their financial situation been better the applicant says she would have attended university and studied law.

15 Upon leaving college the applicant obtained employment at a bank where she worked for 12½ years as a teller, cheque clearing officer and direct entry officer.

16 The applicant's maternal grandfather died in 1996, he having been predeceased by his wife. By his will the applicant's mother was given a first option to purchase Hill Street from his estate, which she did. This was achieved by the applicant and her mother pooling their resources and taking out a small mortgage. In June 2000, following a takeover of the bank where the applicant was employed, she was made redundant and received a payment of approximately $35,000. This money was in part applied to the repayment of the mortgage. About six weeks later she obtained her present employment as a superannuation administrator.

17 Following the death of the applicant's mother in 2006, the applicant inherited the whole of her mother's estate. The applicant is now the sole owner of the Hill Street property, the value of which is $600,000. It is a 1920s home and in need of considerable maintenance. The estimated cost of the necessary maintenance is $83,000. The applicant's other assets, which include her superannuation, are worth about $500,000. Her net salary is $2,800 per month. Her after tax income for the year that ended on 30 June 2009 was about $40,000.

18 The applicant has never married and has lived alone since the death of her mother in 2006.

19 She hopes to remain in the workforce for up to another 15 years but this depends on her health and the availability of employment. She suffers from:

•

Crohn's disease;

•

Epilepsy; and

•

depression.

Chron's disease is an inflammatory bowel disease. Symptoms include vomiting, diarrhoea, weight loss and abdominal pain. She has suffered from Chron's disease since about 1987 when completing her final year at college. As a consequence of the disease she has been admitted to hospital on three occasions. On one of these occasions, in 1992, a portion of her bowel was removed.

20 Her general practitioner reports that Chron's disease has a 60 to 90 per cent recurrence rate and about 50 per cent of the cases require further surgery at some stage. Patients who suffer from the disease also have a higher than average risk of developing cancer of the bowel. Her prognosis over the next five to ten years is good, but in view of the high recurrence rate, the prognosis must be guarded for any longer period. The future progress of her disease is very difficult to predict. Best case scenario is that she continues as she is for the next 20 to 40 years. Medium case scenario is increasing regular bouts of abdominal symptoms with periodic hospitalisation, increased medication and frequent absences from work. Worst case scenario is for her to have to undergo repeat surgery, possibly several episodes, and, worst of all, that she develops bowel cancer.

21 On occasions her symptoms from Chron's disease affect her capacity to work and, although her employer is supportive, she feels that this has impacted negatively on her career prospects. The symptoms can occur at any time. She suffered from symptoms four to five times during the year prior to March 2010.

22 Chron's disease impacts on her performance of daily domestic chores and she is concerned that in the future she may need to employ domestic help.

23 As her Chron's disease is a long-standing condition, she has been unable to obtain income replacement insurance and total or permanent disability insurance to cover it.

24 She has not suffered an epileptic fit since 1987 and is not currently on any medication for this condition.

25 She currently sees her general practitioner for her depression. For a period in or about 2007 she attended a counsellor. She is prescribed anti-depressant medication.

26 When Roger Calvert, the second respondent, first met the testator in 1976, the testator and Mr Calvert's mother were residing together in Warwick Street, West Hobart. This was the home of the testator's Aunt Evelyn, who had moved to Lansdowne Crescent to live with his mother. Later in that year he and Mr Calvert's mother moved to a residence in Melville Street, West Hobart. In order to purchase that residence he sold a farm property at Pelham.

27 The evidence before the Court of circumstances referrable to the personal and financial relationship between the testator, "Jeff", and Roger Calvert, and the financial circumstances of Roger Calvert is contained in his affidavits. He was not cross-examined. The following is an extract from his affidavit, sworn on 17 April 2010:

"8 About this time [1976] Jeff was approached by a former work mate, John Laird, who owned Sport & Dive, and asked if he would do some renovations to the shop in Collins Street in Hobart. In the course of this work Mr Laird asked Jeff if he would like to work for him in the shop running the guns and ammunition section. Jeff was well known in the hunting and clay bird shooting game and accepted the position.

9 In May 1977 I came back to Hobart to discuss the possibility of setting up a business here. I had decided to follow up on a business idea that had been suggested to me.

10 Before my return I spoke with my mother and Jeff and asked them to make some enquiries around Hobart to see if the sort of business I was thinking about was operating. As there was no one else operating a business like this I decided to go ahead.

11 As I did not have a location from which to run the business, Jeff offered me the use of his house in Melville Street. He agreed to be a silent partner in the business. He was not involved in its day to day operation. The business was known as J & R Trashpacks ['the business'].

12 We started the business in October 1977 and my mother answered the phone and prepared the bags and I did the other work. The business grew at a very rapid rate and we had to employ several people to carry out the work to service my customers.

13 During this time Jeff and I became close friends and did just about everything together. He introduced me to clay bird shooting and we spent numerous weekends clay shooting with the sporting shooters or on hunting trips in the bush. On many occasions my mother came along and stayed in a VW Camper and did the cooking for us.

14 Jeff's marriage was never brought up in conversation by him, despite the numerous hours we spent together. He never mentioned her, [his former wife], or Patrice to me and I never heard him mention them to anyone else. The only time I was told about it at all was by my mother.

15 I remember being told by my mother that if Jeff wanted to visit his mother, Mrs Doddridge, at her home in Lansdowne Crescent he would have to ring first to make sure that the 'coast was clear'. I was told that this was a stipulation which had been made by Jeff's mother to avoid the risk of him running into his former wife.

16 In 1984 Jeff and I purchased a property at 724 Nubeena Road in Koonya ['Koonya'] as a shack. We put in equal amounts of money as a deposit and in due course I paid out the mortgage from the profits of the business.

17 My accountant advised that it would be a good idea to purchase more property and to run a small farm to reduce our taxes. Jeff and I purchased another farm in 1984 at Saltwater River Road, Premaydena ['Premaydena'] on which I also paid the deposit. We subdivided some of Premaydena and sold off titles. I paid for the subdivision and the surveyors to carry out that work. The proceeds of the sale of the subdivided land were used to pay down some of the mortgage on this property.

18 We held our respective interests in Koonya and Premaydena as tenants in common.

19 Later in 1985 I sold the J & R Trashpack business and from the proceeds of sale I paid off the mortgage on the Premaydena property.

20 During the period we had the farms we purchased several pieces of farming equipment so we could operate and run the enterprise as a proper farming business. Often when we were on shooting trips we would see old pieces of farming equipment in paddocks and approached the owners to see if they had any use for it or if they would be prepared to sell it to us. I would pick up the equipment and take it home to my residence in Hobart and make it useful. I had a large workshop at the rear of my residence [in] which I made nearly everything we needed on the farm. I would also bring the tractors and truck up to my workshop to do maintenance and repairs.

21 At about this time Jeff wanted to leave Sport & Dive and move to the farm and work it on a full time basis and breed Belgium Blue Cows. I had purchased 16 breeding cows from Geeveston and a pedigree Black Angus bull from Richmond. We had already purchased some Hereford and Angus cross cows and two Hereford bulls and this increased our herd to 50. We gradually increased our Angus herd and sold off the Hereford. Jeff was in his element with the stock and we made extremely good prices at the markets.

22 Our relationship was a close one throughout this period of over 30 years. In 1983, I married, but the friendship continued. Over the ensuing six years I had four children. Unfortunately our first born was stillborn and so three children remain. My eldest child was named after Jeff.

23 My family used to go down to the farm nearly every weekend and enjoy the farming life. Jeff and I worked side by side doing fencing, clearing, ploughing, handling stock and all aspects of farming. Jeff was an integral part of the family and my children always referred to him as their 'Poppy'. The family always looked forward to going down to the farm and being with their 'Nanna and Poppy'.

24 In 2003 I moved to Queensland with my family. I sold a small courier business I had been running with my wife, before we left.

25 Jeff continued to live at Koonya until his death. My mother passed away in February 2006.

26 Jeff and I agreed that if I outlived him he would leave me his whole estate and if he outlived me he would leave the estate to my children in equal shares. My estate is left in equal shares to my wife and children.

27 Having the properties at Koonya and Premaydena was my way of having something to fall back on in retirement and to pay for my children's education. I have promised the children that I will meet their Higher Education fees ['HECS']. When my youngest child finishes University in 2011 I will have 14 years of HECS debts to pay. I estimate the final accumulated debt to be around $97,000.00.

28 At the present time I am 64 years old and not working. I am unable to get Centrelink 'Newstart' allowance, as my assets fall over the threshold for eligibility to receive those payments.

29 My wife is presently working 60 hours a fortnight at a nursing home on the late afternoon shift finishing at 10:00 pm each day. Her income is supporting our day to day needs. She earns approximately $1407.00 gross per fortnight, or $1083 net per fortnight.

30 My daughter is living at home and attends university at QUT. She is substantially dependant upon us, having a part-time job up to 3 days per week at a boutique in Brisbane, mainly on weekends. She catches the train each morning at 7:00 am to travel to Brisbane to attend University.

31 My other two children attend University in Brisbane and in Tasmania, though my eldest is deferring this year. They have part-time jobs.

32 Other than my interest in Koonya and Premaydena, and some personal possessions my only assets are my 1989 Honda Civic Hatchback with a value of $1,500.00 and tools to the value of $2,000.00, and our furniture which has not been valued but which I estimate to be worth $20,000 to $30,000.00.

33 My wife and I have a joint savings account [which contains $426.87] ...

34 Household living expenses average [$625.00] fortnightly ... "

28 The following is an extract from Roger Calvert's affidavit sworn on 27 January 2011:

"2 My Current Financial Circumstances

2.1 Since swearing my earlier affidavits my financial circumstances have changed.

2.2 In or about the start of September 2010 I obtained full time work with Ozcare who operate aged-care facilities throughout Queensland.

2.3 I am employed as a relief maintenance handyman.

2.4 I receive a gross salary of $1,815.00 per fortnight.

2.5 Deducted from my gross salary are the following:

(1) $709.00 which is part of a salary sacrifice package, the entirety of which is applied to pay some of the living expenses described in my earlier affidavits;

2.6 My Nett take home salary is approximately $856.00 per fortnight;

2.7 My outgoings remain unchanged from those set out in my earlier affidavits.

3 The Properties

3.1 As deposed to within my earlier affidavits, the late Mr Jeffrey Doddridge ('Jeff') and I purchased and owned, as tenants in common, at the date of his death properties located at:

(b) Lots 4 & 5 and 6 & 7 Saltwater River Road, Premaydena, ...

3.2 We looked at the properties together prior to purchase and agreed with one another that we would [buy] them.

3.2(a) We purchased the main road Koonya Property approximately one year prior to purchasing the Saltwater River Road Property around 1983.

3.2(b) We purchased the Saltwater River Road property on or around the 24th February 1984_._

3.4 We used to go down to the properties every weekend to make improvements, construct fencing, plough, looking after stock, do the shearing when we had sheep and do general farming work.

3.5 My mother, who was in a relationship with Jeff, came along and looked after us.

3.6 We originally ran sheep on the properties. After a few years Jeff couldn't handle sheep so we decided to farm cattle instead as they required less work to maintain.

4 We paid for everything that related to the farming from income from our business, J & R Trashpacks ('the Business').

4.1 I paid most of the Deposit for the property at Koonya from funds I had saved. I think Jeff may have paid a little bit to finalise the Mortgage, which from my recollections would have been a couple of thousand dollars. We jointly serviced the repayments from Income earned through the business

4.2 Originally the house at Koonya cost around $37,500

4.3 The Koonya Property was purchased primarily as a holiday house for the family, consisting of Jeff, my Mother, and me and my family.

The Premaydena Property

4.4 The Premaydena Property was acquired as a hobby farm.

4.5 The Premaydena Property cost approximately $120.000.

4.6 We subdivided and sold off 4 titles which left around $50,000 owing. This was paid out from the proceeds of the sale of the Business."

29 The testator was a "silent partner" in J & R Trashpack. The business was run from his residence. I assume that the initials J & R are taken from the first name of the testator and Mr Calvert. I infer that the testator had an equity in the business. Whilst I note that the testator was not involved in the day-to-day running of the business, I infer that he had an entitlement to a share of its profits and the proceeds of its sale. It is against this background that I view the following statements in Mr Calvert's affidavits.

•

Paragraph 16, "We put in equal amounts of money as a deposit [for Koonya] and in due course I paid out the mortgage from the profits of the business.

• Paragraph 19, " ... in 1985 I sold the J & R Trashpack business and from the proceeds of sale I paid off the mortgage on the Premaydena property".

•

Paragraph 4, "We paid for everything related to the farm from income from our business, J & R Trashpacks ['the business']".

•

Paragraph 4.1, "I paid most of the Deposit for the property at Koonya from funds I had saved. I think Jeff may have paid a little bit to finalise the Mortgage, which from my recollections would have been a couple of thousand dollars. We jointly serviced the repayments from income earned through the business".

•

Paragraph 4.6, "We subdivided and sold off 4 titles which left around $50,000 owing [on the Premaydena property]. This was paid out from the proceeds of the sale of the Business."

32 The testator inherited half his mother's estate following her death in 1983. It is likely that part of this inheritance went into the purchase of the Koonya and Premaydena properties and the development of those properties. I conclude that the testator sold his Melville Street home after moving to the farm and it is likely that part of the proceeds of this sale went into the farm.

33 I am not satisfied that Mr Calvert made a greater contribution to the purchase and development of the Koonya and Premaydena properties than the testator. I recognise however that the testator derived the benefit of residing at the jointly owned property at Koonya from some time after 1985 until his death.

34 Mr Calvert's assets, which include his half share in the Koonya and Premaydena properties, total about $650,000. Counsel for Mr Calvert submits that Mr Calvert's needs are greater than the applicant's as he has a dependant wife and three children. The children are university students. They all have part-time jobs but they are partially dependent. His youngest child is expected to complete her university education this year.

35 The Calverts reside in Queensland at Runaway Bay. Mr Calvert's wife is the registered proprietor of the matrimonial home. The only evidence of its value before the Court is a valuation for the purposes of local government rating and land tax. It records that, as at 1 October 2007, "the unimproved value of the land only" was assessed at $280,000, but, as at 1 October 2009, that assessment had been reduced to $250,000. I conclude that its improved value is substantially in excess of $250,000.

36 A Commonwealth Bank Home Loan Summary records that as at 31 December 2009, Mr Calvert owed the bank $30,662.55. I was informed that this loan relates to the matrimonial home. From the fact that Mr Calvert has responsibility for this loan on the matrimonial home, I conclude that he has an equitable entitlement with respect to it.

37 Information before the Court as to shared investments of Mr Calvert and his wife show that she has investments worth about $119,000. There is no information before the Court as to whether she has any other assets. She is in employment. I do not consider her dependency on Mr Calvert to be of any significance for the purposes of the matter before me.

38 As to why the applicant and her father had no involvement in each other's lives after he and her mother separated, I note that in Walker v Walker [1996] NSWSC 188, Young J said, at (Austlii) 16 and 17:

"I do not consider that there is any purpose in analysing whose fault it was that the state of non-communication came into place. In family relationships, hurts are inflicted or suffered sometimes consciously, sometimes unconsciously. Sometimes a young child is brainwashed by a custodial parent to consider that the other parent has inflicted some harm which is all in the mind of the custodial parent.

It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.

The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff."

39 Whilst I accept the thrust of this observation, I consider that insofar as the circumstances of the disconnection between the applicant and her father can be determined, they are relevant and significant. There is no suggestion that the applicant spurned her father at any time. It seems that when her parents separated, her mother was so antagonistic towards her father that his mother took precautions to ensure that they did not meet by chance when visiting her. Although it was always open to the applicant to seek out her father, it is likely that had she done so she would have upset her mother. She quite understandably took his failure to contact her to mean that he did not want any contact with her. The immediacy of her mother's discouragement passed when she died in February 2006. However, by this time, it would have been potentially very difficult and emotionally problematic for the applicant to have approached her father. I can find no good reason for her father to have allowed himself to be so uninvolved with his daughter during her childhood that neither of them sought a reunion at any time thereafter.

40 A view that at one time found some support in the authorities is that where the basis for an applicant's claim is little more than bare paternity, it should fail: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 18 - 20, and Hughes v Hughes (unreported decision of the Court of Appeal New South Wales, No 108 of 1988, 6 June 1989). That view is not sound. With regard to the question of so-called bare paternity, I am guided by Nicholls v Hall [2007] NSWCA 356, Mason P, Hodgson and McColl JJ, pars[43] - [46]:

"43 There are some statements in the cases that could be understood as meaning that, if there is nothing more than 'bare paternity' in factor (1), the relationship between the applicant and the deceased, then the applicant cannot succeed. In our opinion, such an understanding would be plainly wrong. Even if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors (that is, needs, size of estate and lack of competing claims), a court could find that that child was left without adequate provision for proper maintenance.

44 Such a view is supported by what Holland J said in Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 540:

If it is a case of a parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned for the child's welfare.

...

45 Our view is also supported by what Bryson J said in Gorton v Parks (1989) 17 NSWLR 1 at 9-10, to the effect that 'the bare fact of paternity' is 'of very great importance in morality'. ...

46 It is supported also by what Ipp JA (with whom Tobias JA and Basten JA agreed) said in Palmer v Dolman [2005] NSWCA 361 at [112], to the effect that where an applicant is a child, proof that the applicant is a person in need will often be sufficient to justify an order."

41 More generally, in relation to the approach to be taken to a claim by an adult child of a testator, I am particularly influenced by the views of Bryson J in Gorton v Parks (1989) 17 NSWLR 1, from 6 - 12. In that decision his Honour gave close attention to observations by Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales (supra), at 18, to the effect that bare paternity was incapable of supporting a claim. At 9 and 10 of his decision, Bryson J said:

"The observations which I last cited seem to involve a view of the moral obligations of a parent which differs I would think from the almost universal view of the Australian community; the view involved seems to have been that the moral obligations of a parent can be limited, and can possibly be escaped, by steadfastly maintained repudiation or evasion. Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgement of the obligations or of the child appears to me to be an idea from a distant age. There have been large changes over long periods in the beliefs of the community about moral duty to children ... The idea that acknowledgement by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962."

42 During the applicant's childhood, she and her father resided quite near to each other in West Hobart. She would have been 16 in 1985, which is the earliest date that he moved to the farm. She still resides in the same residence. He was well aware of where she resided and what her telephone number was. When she was young, friends of hers who attempted to telephone her often telephoned her father as he was the only Doddridge listed in West Hobart in the phone book. He gave her friends her phone number. Until his mother's death in 1983, he and the applicant were both in regular contact with her. If he was not aware of the applicant's reduced circumstances he most certainly could have been and should have been. Ultimately, the question whether adequate provision has been made for the proper maintenance and support of the applicant must depend upon on all of the facts that existed at the date of the death of the testator, whether he knew of them or not, and all the eventualities that might, at that date, reasonably have been foreseen by a testator who knew those facts; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 147 - 148. He simply abandoned his daughter emotionally and physically, and made only one contribution to her maintenance. These are matters for which as between her and him, she bears no responsibility, and he bears full responsibility. Consistent emotional and financial assistance from her father throughout her school years might have given her the confidence and means to pursue and obtain a tertiary qualification. Her involvement in the process of obtaining a tertiary qualification may have expanded her friendship group, raised her horizons and increased her opportunity of meeting a partner with whom to share her life. A tertiary qualification would probably have increased her employability and her earning capacity. It is a melancholy reality that insofar as her father failed to provide for her during her childhood, she was no drain on his resources and thereby assisted him to accumulate his estate. From this standpoint the applicant's claim is more formidable than that of a claimant who was supported to adulthood by a parent, but thereafter became estranged from that parent.

43 That said, I have no hesitation in concluding that Mr Calvert has a significant competing claim on the testator's estate to that of the applicant. From his 20th year Mr Calvert was, in substance, the testator's stepson. They had a close relationship in every way. Mr Calvert's children treated the testator as their grandfather. Mr Calvert and the testator went into business together, enjoyed recreational activities together and jointly purchased property. I expect that their shared involvement in business and property improved the financial circumstances of each of them.

•

the applicant's claim should be refused as the Court should conclude that her "character or conduct ... is such as ... should disentitle ... her to the benefit of any provision"; the Testator's Family Maintenance Act, s8(1);

•

there is no proper foundation for a finding that the testator had a moral obligation to provide for the applicant out of his estate;

•

the applicant has not been left without adequate provision for her proper maintenance and support; and

•

if wrong about the above, any provision for the applicant should be modest.

45 In Delacour v Waddington [1953] HCA 64; (1953) 89 CLR 117, the High Court said, at 127, "the 'character or conduct' envisaged by [a provision to the same effect as s8 in the New South Wales legislation] must be taken to refer to character or conduct of such a nature as to entitle the court to say that the applicant has forfeited or abandoned his or her moral claims on the testator".

46 I am totally unpersuaded that anything that the applicant did or failed to do could warrant a finding that she forfeited or abandoned her moral claim on her father.

47 I have no hesitation in concluding that the applicant, being the testator's daughter, coupled with the other matters that have been referred to, in particular his failure to fulfil his obligations to her during her childhood, he was subject to an obligation to provide for her out of his estate. She was his only child. That he had substantially repudiated his obligations to her during her childhood, did not absolve him of the obligation to provide for her upon his death and, if anything, it reinforced that obligation. Although his best opportunity to support her was past by the end of his life, she remained in need of his support, and insofar as he was able to do so, he was obliged to provide it.

48 The testator left an estate of in excess of $600,000. The applicant was a woman of greater means than the testator at the time of his death. Nonetheless, within the terms of the applicable legislation, she was in need of maintenance. She alone must provide for herself for the balance of her life, and her health is such that she may not be able to do so.

49 The term "modest" has often been used in decisions when characterising a provision made for a successful claimant. This use of this term does not assist me. The provision that should be made for a successful claimant is that which is proper in all the circumstances of the case. In this case, as is often so, a most significant circumstance is competing claims. Had it not been for the significance of Mr Calvert's claim on the testator, I would have made greater provision for the applicant than I will. In this regard I have in mind the approach taken by de Jersey CJ in Goold v Field [2005] QSC 310.

50 For the foregoing reasons, I am satisfied that in failing to make any provision out of his estate for his daughter, the testator left her without adequate provisions for her proper maintenance and support. As to the provision for her that is proper, having regard to all the circumstances of the case, on balance, I am satisfied that it should be the amount of $200,000.