48 Young J also observed:
"In Frazer's case, Kirby P at p.29 said that ' I do not consider that it would be safe for this Court, or other Courts in this state, to disregard the obiter dicta in Singer v Berghouse concerning 'moral duty'. However, his Honour's decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law 'either by the observations of the majority in Singer or by the High Courts reference, in the footnote, to what Murphy J. said earlier (p.27)."
"Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words 'moral claim' in decisions under this Act.
"Sheller JA again did not consider that the High Court's suggested abandonment of concepts of moral claim or moral obligation changed the task of the Court. He said, with reference to decisions of Murphy J. at p.42 ' the point made in the judgments to which Murphy J. referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant's case but not alone sufficient to justify an order in the claimant's favour. Thus, in theory an order would not be made out of the estate of the deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The Courts, in giving effect to the legislative scheme, having accepted that the bear moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to impound the Court to make an order."
49 The concerns expressed about any change in the law as a result of Singer v Berghouse were recently put to rest by the High Court in Vigolo v Bostin [2005] HCA 11 at 25, 74-75 and 121.
50 In Walker v Walker(p.27) Young J noted:
" it is often impossible to work out whether the degree of separation between parent and child of the date of the parent's death is solely the fold 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 that he in fact did to constitute proper or adequate provision for the plaintiff.
Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant…"
51 These words were recently approved by Ipp J in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 when he said:
" I agree with his honour's remarks, although I would express the rider that, often, where an applicant is a person within paragraphs (a) or (b) of the definition of 'eligible person' in s 6(1) of the Act, proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his honour expounds."
52 The deceased was a violent man, particularly when drunk, and, after the separation from his wife Beryl Eather in 1992, he had little or no contact with Grahame Eather and Rochelle Campbell. In the case of Grahame Eather, he and his wife Jane were in the habit up until 1992 of having Sunday lunch with the deceased and Beryl Eather. However, the deceased discouraged this by saying to his former wife "If you don't stop Jayne and Grahame coming to the house I'll shoot them." This was as a result of an argument one day at dinner when the deceased was drunk and demanding more beer, while at the same time trying to hold his two year old grandson. He became violent and killed a pet bird in front of the child.
53 His threats to shoot were not idle comments. He kept two guns and during Grahame's childhood he had held a gun to his head and threatened to shoot him. There was another incident later when there was further domestic violence by the deceased against his wife and including Michael.
54 Twelve months later the parents separated and Grahame did not speak to his father again. He was plainly frightened of this violent man and naturally did not want his young children exposed to him. He did, however, when the deceased was sick make an approach to the deceased through a friend to see if he could see the deceased. This approach the deceased rebuffed.
55 Much the same thing happened with Rochelle after the parents separation. The deceased saw her son and he came to her wedding. He stayed the half an hour and left. He seems to have ignored Rochelle in the street. She also tried to approach him through her husband on two occasions, one was 12 to 18 months before his death and another two months before. Both approaches were rebuffed.
56 The relationship of the deceased and his son Michael continued after separation because Michael lived at home with him after the separation until he moved. He was his favourite.
57 I can well understand Grahame and Rochelle's reluctance to see their father and expose their children to such a drunken and violent man. To their credit they did try to mend fences but the deceased rebuffed all such approaches. In these circumstances their contact is not such as to disentitled them to an order. However, they have not had as much contact as Michael and this must reflect in Michael's favour.
58 I have earlier referred to the value of the life estate given to Valerie Everleigh. She plainly was the de facto partner of the deceased.
59 In Marshall v Carruthers [2002] NSWCA 47 Hodgson J had the following to say in respect of the provision in favour of de facto partners:
"The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One of fact or which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased.
60 The Master referred to the following statement of principle which appears in Luciano v Rosenblum [1985] w NSWLR 65 at 69;
" It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.'
I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion, it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage of occasioned by the greater responsibility which women often take in looking after children. That factor is of course absent here."
61 Plainly in this case there were no children, no contributions to the estate of the deceased and a very short relationship. The provision of a life estate having a value of $89,000 was over generous in the circumstances of this estate. The provision of a remainder interest to three of Michael's children was no doubt part of the deceased's plan to exclude the plaintiffs and limit the funds flowing to Michael.
62 I think that both Grahame and Rochelle with their family responsibilities need to reduce their mortgages and do work on their homes. This all has to be balanced with the provisions made for the deceased's de facto partner, Michael, and three of his children.
63 In respect of the latter, they will be provided for by Michael and his wife who presently stand to receive $147,127.00 if the house is sold and some other provision is made for Valerie. As I have said, it is an over generous provision in the circumstances.
64 If the house is sold, because of the expenses of the claim there is likely to be funds of $185,000 less selling expenses. A distribution of that sum to provide $50,000 for Rochelle, $60,000 for Grahame and $70,000 for Valerie in my view would be appropriate.
65 The orders that I make are:
(1) in lieu of the provision of clause 5 (b) of the deceased's will the deceased's residence at 1A Ada Street, Singleton, NSW will be held upon trust for sale and to pay there from the expenses of sale and the costs ordered to be paid in these proceedings and the balance to be held for:
(a) as to 7/18ths for Valerie Dawn Everleigh;
(b) as to 6/18ths for Grahame Barry Eather;
(c) as to 5/18ths for Rochelle Ann Campbell.
(2) that the costs of the plaintiffs on a party party basis and the defendant's costs on an indemnity basis be charged upon and paid out of the sale proceeds referred to in order 1.
(3) that the executrix is authorised to allow Valerie Dawn Adelaide three months to vacate the property 1A Ada Street, Singleton.
(4) I order the exhibits be returned.