By a summons filed on the 11 February 2016, amended on 24 June 2016, the plaintiff (Edward Leslie Cameron) claims family provision relief, under Chapter 3 of the Succession Act 2006 NSW, from the notional estate of his father, John Hemmes ("the deceased").
The plaintiff (now aged 27 years) was born in June 1990 to Fiona Leslie Cameron, a single woman (born in 1959), with whom the deceased (many years her senior) had an extra marital relationship between 1983-1989. After initial hesitancy which may have informed the deceased's unsympathetic attitude, Ms Cameron has consistently claimed (but the deceased never subjectively accepted) that the deceased was the father of the plaintiff.
By an order made by the Family Court of Australia on 7 December 1995 (after more than one round of litigation, in which the deceased was legally represented, and following DNA testing the subject of criticism) the deceased was declared to be the father of the plaintiff.
The defendants to the current proceedings accept that, by operation of section 12 of the Status of Children Act 1996 NSW, the deceased is irrebuttably presumed to be the father of the plaintiff.
The deceased was born in or about 1931. He died on 1 March 2015 aged 83 years.
He married Merivale Margaret Hemmes (nee Brennan), the second defendant, in about 1954. Their marriage endured for about 60 years.
There were two children of the marriage: Bettina, born in about 1964; and Justin, born in about 1973.
Upon his death, the deceased left a will dated 14 January 2015 probate of which was granted to David Mead (the first defendant), the sole executor named in the will, on 11 September 2015.
With editorial adaption, the dispositive provisions of the will (clauses 5-6) are in the following terms:
"[5] For the benefit of my executors [sic] I note that my house which is known as The Hermitage [at Vaucluse, NSW] is owned by my wife MERIVALE MARGARET HEMMES and me as joint tenants and on my death my interest in that property will automatically pass to my wife.
[6] My executors [sic] shall hold my estate on trust:
a) to give all of the contents of my house and my personal possessions to my wife MERIVALE MARGARET HEMMES;
b) to give to KERRIE LEA BOYLETT [the deceased's 'General Manager Administration'], the sum of $2,000,000;
c) to divide the residue of my estate equally between those of my son JUSTIN JOHN HEMMES and my daughter BETTINA MERIVALE HEMMES who survive me."
No provision was made for the plaintiff in the deceased's will. Nor was the plaintiff mentioned in the document.
The deceased was a successful, prominent businessman who, by all reports, enjoyed an affluent lifestyle.
In the inventory of property attached to the grant of probate of the deceased's will, the property at Vaucluse described in clause 5 of the will as passing to the second defendant by right of survivorship was valued at $34 million.
Despite (or, perhaps, because of) his affluence, the deceased died leaving no estate of significant value. The evidence of the first defendant, not challenged in these proceedings, is that the deceased died with a gross estate valued at $363,964.00, liabilities totalling $661,969.00 and a net estate with a negative value of $298,005.00.
In the absence of any actual estate against which to claim family provision relief, the plaintiff amended his summons to claim orders providing for other property to be designated as notional estate of the deceased pursuant to Part 3.3 of the Succession Act 2006. The property the subject of that claim, as identified in the amended summons, comprised the deceased's half interest as a joint tenant in the Vaucluse land and superannuation funds held by corporate trustees joined in the proceedings as the third and fourth defendants.
By a written agreement dated 14 July 2017 (reproduced as part of Exhibit D3) the parties to the proceedings have agreed, on a "without admissions" basis and for the purpose of the current proceedings only, as follows:
"The Fund
[1] No later than 21 days before the date allocated for the trial of the proceedings, the third and fourth defendants shall deposit an amount of $4,126,342.00 into a controlled moneys account in the name of the defendants' solicitors ('Designated Fund').
[2] Subject to the Court determining that a family provision order should be made in favour of the plaintiff for provision out of the deceased's estate (and it is noted that the defendants intend to resist the Court making any such order) and subject to section 78 of the Succession Act 2006:
a) the defendants will not oppose an order that so much of the Designated Fund as is necessary to meet any order for family provision in the plaintiff's favour, together with an order for the plaintiff's costs of the proceedings, be designated as notional estate in the proceedings; and
b) the defendants will not raise any discretionary or other matter pursuant to Part 3.3, Division 2 of the Succession Act 2006 to oppose or limit the making of notional estate orders with respect to the Designated Fund.
[3] The Designated Fund will only be available to satisfy any judgment in favour of the plaintiff for family provision in these proceedings, or any order for payment of the plaintiff's costs, and will not be available for recourse by creditors of the estate or of any defendant.
[4] The defendants will not seek to raise any competing need of any beneficiary or any other person in order to attempt to limit or defeat the plaintiff's claim for an order for family provision to be made out of the Designated Fund.
No other notional estate
[5] In consideration for the promises made in this agreement, the plaintiff's notice of motion filed on 2 March 2017 [by which the plaintiff sought to join Justin and Bettina Hemmes as defendants in the proceedings and to file a second amended form of summons seeking an order designating as notional estate funds transferred to them from a Swiss bank account] will be dismissed, with no order as to costs.
[6] The plaintiff will not seek orders against the second, third or fourth defendants other than in relation to the Designated Fund. The plaintiff will not seek to join additional defendants to seek notional estate orders against them, or against property that they own. The plaintiff will not seek any orders with respect to property in the estate, or any asserted notional estate, other than the Designated Fund.
[7] The plaintiff will not contend or make any submission that any property other than the Designated Fund could or should be designated as notional estate.
[8] The plaintiff will not make or pursue any further requests for discovery or production of documents in relation to notional estate, or property."
The parties inform the Court that the "Designated Fund" has been established, as contemplated by this agreement, to abide the orders of the Court.
By reason of the agreement, the parties agree that it is not necessary to pursue broader questions about the nature and extent of resources, beyond his actual estate, available to the deceased at or about the time of his death.
Evidence was nevertheless given by the first defendant in cross examination that, shortly before the deceased's death, he caused to be transferred to his children Bettina and Justin jointly, from a Swiss bank account, a sum of about $5.7 million.
Senior counsel for the defendants cautioned the Court against drawing inferences about the nature and purpose of that bank transfer in the absence (as there is) of any evidence elaborating nature or purpose. I accept, and act upon, that prudential warning.
I also approach with caution evidence given by the first defendant (again, in cross examination) that, although the deceased died without any actual estate, and his estate was therefore unable to fund the legacy of $2 million for which clause 6(b) of the deceased's will provides in favour of Ms Boylett, a company associated with the deceased's family made an ex gratia payment of $1 million to her after the death of the deceased.
The parties are agreed that the principal questions for determination in the proceedings, upon evidence available to the Court at the time of their determination, are:
1. whether "adequate provision for the proper maintenance, education or advancement in life" of the plaintiff has been made by the will of the deceased: Succession Act, section 59(1)(c); and
2. if that "jurisdictional question" is answered in favour of the plaintiff, whether, upon an exercise of the discretionary power for which section 59(2) of the Succession Act provides, provision out of any designated notional estate of the deceased "ought to be made for the maintenance, education or advancement in life" of the plaintiff.
The parties agree that:
1. as a child of the deceased, the plaintiff is an "eligible person" within the meaning of section 57(1)(c) of the Succession Act and, for the purpose of section 59(1)(a) of the Act, the Court should be so satisfied.
2. the plaintiff's application for a family provision order was made within the time limited by section 58(2) of the Act.
3. if the Court is satisfied, for the purpose of section 59(1)(c) of the Act, that the plaintiff has been left without adequate provision, and that it should exercise in his favour the discretion for which section 59(2) of the Act provides, then the Court can be satisfied that the jurisdictional requirements of the Act for designation of the "Designated Fund" have been satisfied to the extent necessary to meet any order for family provision relief, or costs, made in favour of the plaintiff.
It is accepted on both sides of the record, conformably with section 78 of the Succession Act, that a designation order should not exceed what is required to satisfy a particular order for family provision and an associated order for costs.
The defendants concede that, if the Court were minded to make a family provision order in favour of the plaintiff, it could be satisfied (for the purpose of section 88(b) of the Succession Act) that the deceased's estate is insufficient for the making of such an order; and (for the purpose of section 87 of the Act) that a notional estate order would not interfere with reasonable expectations in relation to property, and that the substantial justice and merits involved in the making or refusing to make such an order favour the making of an order in favour of the plaintiff.
The factual matrix within which decisions must be made by reference to sections 59(1)(c) and 59(2) of the Succession Act, having regard to the criteria enumerated in section 60(2) of the Act, can be shortly stated in summary form.
For good reason or bad, the deceased never subjectively accepted that the plaintiff was his child; not even, less justifiably so, after the Family Court, on the evidence available to it, authoritatively determined otherwise.
Over a period of about 13 years, under compulsion of law, the deceased paid to the plaintiff's mother periodical sums (perhaps totalling $300,000.00 or thereabouts) for "child support" for the plaintiff under the Commonwealth's legislative scheme for administrative assessment of a parent's child support obligations.
Apart from compulsory child support payments, the deceased did not pay anything to, or for the benefit of, the plaintiff during his lifetime.
Throughout his life, the deceased chose to have, and had, no personal contact with the plaintiff. No responsibility for that choice can be attributed to the plaintiff.
After the plaintiff attained the age of majority, he endeavoured to have contact with the deceased who, through his General Manager, consistently rebuffed him with the qualification that, if the plaintiff would submit to further DNA testing that proved the deceased's paternity, the deceased would meet him.
The plaintiff at one point (in October 2010) agreed to submit to the deceased's demands for further DNA testing but, in the event, he did not submit to the tests required by the deceased.
The plaintiff was raised by his mother, without the benefit of any personal relationship with his father, and without anything like the material support which he would have had had he been granted a share of the affluence which, it can reasonably be inferred, the deceased enjoyed throughout the years following the plaintiff's birth.
During his infancy, and under the care of his mother as a single parent, the plaintiff moved residences several times, living first in Sydney and, subsequently, in Queensland. At high school, he progressed to year 12; but, on graduation, he immediately entered the workforce. He completed a Diploma in Marketing and Advertising course; but, otherwise, he has had no tertiary education.
In December 2009 he met the woman he proposes to marry and with whom he is presently living in anticipation of marriage. He followed her to her native Germany in 2010 and returned to Australia, with her, in August 2016.
They presently live in a one-bedroom rental unit in the Glebe area of Sydney.
The plaintiff is in good health, as is his fiancée.
The plaintiff works as a software product designer with an annual gross salary of $91,324.00. He has only modest superannuation entitlements and savings, consistent with his age.
The plaintiff's fiancée is a German national (also a young adult) who completed studies in Germany in interior architecture. On her return to Australia with the plaintiff, she secured short-term employment as an interior architect; but she has been unemployed since August 2017. She has very modest superannuation entitlements, shares in the plaintiff's limited financial assets, and is presently dependent upon the plaintiff.
The plaintiff and his fiancée plan to settle in the Glebe area, where they hope to have at least three children in the fullness of time.
The plaintiff's unchallenged evidence is that he has always been interested in his father's life, wanted to have a relationship with his father, often read about his father and "even watched a television documentary about him" - in circumstances in which, as he believes, he "received no love or recognition" from the deceased "who refused to even meet with" him.
The defendants' opposition to a finding, for the purpose of section 59(1)(c) of the Succession Act, that the plaintiff has been left without "adequate provision" etc, is grounded on three broad propositions. First, that the deceased made adequate provision for the plaintiff during his lifetime by making compulsory child support payments. Secondly, throughout his life the deceased had no relationship with the plaintiff beyond bare paternity. Thirdly, the plaintiff is a healthy adult male who can, and should, be left to make his own way in life without any provision being made for him, on the account of the deceased, beyond the deceased's child support payments.
In support of their case, the defendants referred to several authoritative judgments which counsel caution in the making of any (or, at least, any substantial) order for family provision:
1. in favour of an adult son (eg, Taylor v Farrugia [2009] NSWSC 801 at [57]; Yee v Yee [2017] NSWCA 305 at [107]); and
2. in circumstances in which the relationship between the claimant for family provision relief and the deceased person in respect of whom that relief is sought is attended by estrangement (eg, Andrew v Andrew (2012) 81 NSWLR 656; Burke v Burke [2015] NSWCA 195).
I accept, as the defendants emphasise, that the mere fact of paternity is not enough to justify a grant of family provision relief: Palmer v Dolman [2005] NSWCA 361 at [111]-[112]. Something more is required, upon a full examination of the facts and circumstances of the particular case.
The plaintiff's submissions include emphasis on the fact that, although the plaintiff and the deceased had no social relationship, it cannot be said that the absence of such a relationship is attributable to a lack of knowledge of the plaintiff on the part of the deceased, or to any fault on the part of the plaintiff. This is not a case of a relationship between father and son limited to "bare paternity"; but, rather, one in which the deceased, with an authoritative determination of his paternity, chose to exclude the plaintiff from his life.
One can understand the deceased's initial, subjective doubts about his paternity; but weighed in the balance must be the fact that he persisted in embracing those doubts, to the point of closing doors to the plaintiff, despite a fairly litigated court determination that he was, in fact, the plaintiff's father.
The sad facts of this case do not readily fit the paradigm of an estranged relationship that is often encountered in family provision proceedings involving claims by adult plaintiffs. The plaintiff was never really given a fair opportunity to engage socially with the deceased, despite his manifest desire for such an engagement. There was no social relationship permitted by the deceased to be the subject of any form of estrangement. Towards the end of his life when approached by the plaintiff, the deceased not only rebuffed him, but sought to re-agitate the question of paternity determined two decades earlier by the Family Court, and to impose on the plaintiff personal responsibility for the absence of any personal encounter. The plaintiff did not seek - but the deceased most assuredly did not hold out to the plaintiff any prospect of - material gain. The plaintiff sought, but the deceased denied, an opportunity to bond.
Nor does the plaintiff's case fit the mould of an ordinary application by an adult male for family provision relief. The plaintiff is a young man, not yet established in the world. He has had to make his way in the world, so far as he has thus far done, without any love, support or encouragement ordinarily associated with a paternal relationship. He has had to labour, on the contrary, with rejection at the hands of a father whose wealth and prominence magnified the pain of parental rejection.
It is not necessary to set out at length the correspondence between the plaintiff and (as agent for the deceased) Ms Boylett following a letter addressed by the plaintiff to the deceased in or about September 2010. On the deceased's side, that correspondence was civil but officious, pretty much limited to an insistence upon the plaintiff's submission to further DNA testing as a condition of any personal contact between father and son.
One particular email addressed by Ms Boylett to the plaintiff (on 15 October 2010) was based upon assumptions of fact established, by evidence adduced in these proceedings, to be erroneous. One erroneous assumption was that the plaintiff's original birth certificate recorded, as the name of the plaintiff's father, the name of a man other than the deceased; it did not, in fact, record any name as that of the plaintiff's father. Another erroneous assumption was that, for the first five years or so of the plaintiff's life (when the deceased made no child support payments) a man other than the deceased (with whom the plaintiff's mother had developed a relationship) made child support payments referable to the plaintiff.
Although civil, this correspondence could not do otherwise than compound the emotional hurt experienced by the plaintiff associated with his rejection by the deceased.
Some insight into the plaintiff's state of mind can be found in the terms in which he wrote to the deceased, in or about September 2010, initiating correspondence directed his way, not by the deceased, but by the deceased's General Manager. The letter, posted to the deceased at his Vaucluse property was handwritten. It was in the following terms:
"Dear Dad, John, Father, Mr Hemmes…
It has taken me a long time to write this letter, not only because not knowing what to write and how to address you, but also being scared of denile [denial]. I have always wanted to meet you, speak to you and know you since I could remember, but not until now have I been strong enough to do something about it..
I wanted to keep this letter relatively short, so I will now tell you a little about myself. I am currently 20 years of age, graduated school and completed a Dual Diploma of Marketing and Advertisement. I am now living in Germany with my girlfriend who is German [.] I love it here[,] it is very beautiful. I have been in Germany for three months and plan on staying a long time..
The reason for this letter is to have the chance to get to know you and for you to get to know me, it would mean alot [sic] for me to understand that missing person in my life..
So if you would like to get in contact with me my personal email address is: […].
I would love to hear from you soon.
Lots of love Edward."
This cathartic letter met an initial response by way of an email dated 21 September 2010 addressed by Ms Boylett to the plaintiff. Omitting detailed instructions about logistical arrangements made by Ms Boylett in anticipation of further DNA testing, it was in the following terms:
"Hi Edward
John Hemmes has passed your letter to me.
Please do not under any circumstances contact Mr Hemmes at his private address.
Until a DNA test is completed with regard to yourself and Mr Hemmes, Mr Hemmes does not want to have any contact with you.
As previously mentioned [apparently in communications with the plaintiff's mother], Mr Hemmes does not believe that you and himself have the same DNA.
Mr Hemmes, has agreed, that if a DNA test has been completed, and Mr Hemmes has been found to have the same DNA as you, he will meet with you to discuss. This meeting is to be set up through myself. Once again, Mr Hemmes has asked that if DNA is to show that you both have the same DNA, that you do not contact him direct, but rather myself to set up a time to meet. …
Once again, please contact me direct for any questions or queries [in regard to DNA testing] otherwise any correspondence sent to Mr Hemmes will be returned unopened.
Regards,
Kerrie"
Subsequent correspondence alerted the plaintiff to the deceased's ill-health, suffering from "bone cancer", but offered no prospect of the plaintiff meeting the deceased without further DNA testing, and sought to impose upon the plaintiff responsibility for there being no meeting if the plaintiff chose not to submit to further testing.
There is no dispute between the parties that the plaintiff bears the onus of establishing his claimed entitlement to family provision relief.
Nor is there any dispute that:
1. the words "adequate" and "proper" in section 59 of the Succession Act must always be relative to the facts of the particular case: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19-20.
2. the Court must place itself in the position of the deceased and consider what he ought to have done in all the circumstances of the case, treating the deceased for that purpose as wise and just, rather than fond and foolish (to use the language of Scales Case derived from In re Allen [1922] NZLR 218 at 220-221 and Bosch v Perpetual Trustee Company Ltd [1938] AC 463 at 478-479), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656).
The defendants' contention that the Court should not be satisfied of the essential element of the plaintiff's claim for which section 59(1)(c) of the Succession Act provides must be rejected. No provision was made for the plaintiff in the deceased's will. Neither a person guided by wisdom and justice, nor a person guided by current community standards, could reasonably conclude that the deceased's bare payment of child support payments, under compulsion of law, has left the plaintiff with adequate provision, etc, from the estate, or notional estate, of a father of the deceased's affluence. The plaintiff is a young man, unaided by paternal support beyond child support payments, who certainly has the advantages of youth and potential, but accompanied by a lack of substantial wealth that commonly accompanies youth. The defendants' primary case (that the plaintiff's summons should be dismissed) must fail.
For the purpose of section 59(1)(c) of the Succession Act, I am satisfied that the plaintiff has been left without adequate provision for his proper maintenance, education or advancement in life out of the estate or notional estate of the deceased.
In the context of the determination to be made by the Court by reference to section 59(2) of the Succession Act, the plaintiff contends that the Court should find that, he having been left without adequate provision for his proper maintenance, education and advancement in life, the Court ought to find that his proper maintenance, education and advancement in life requires that he be awarded the whole of the "Designated Fund" of approximately $4.1 million set aside by the defendants to abide the orders of the Court.
An alternative case advanced by counsel for the plaintiff during argument suggested that, particularly having regard to the cost of residential accommodation in and around inner-city Glebe, the Court should make orders designed to grant the plaintiff about $3 million of the "Designated Fund".
For their part, the defendants accept that, if (as I have found) the plaintiff has overcome the jurisdictional hurdle for which section 59(1)(c) of the Succession Act provides, it would be appropriate for the Court, upon an exercise of the discretion for which section 59(2) provides, to make an order for some provision to be made for the plaintiff out of the "Designated Fund"; but, accepting that any family provision order made in favour of the plaintiff might be measured in the hundreds of thousands of dollars, they submit that, in all the circumstances of the case (including, particularly the absence of any personal relationship between father and son and the plaintiff's status as an adult son), the concept of "proper" maintenance, education or advancement in life, cannot be stretched beyond an order for $1 million.
As is customary in family provision proceedings, the parties presented their respective cases by reference to concepts of "moral duty" and "need", nevertheless mindful of the importance of ultimately returning to the language of the Succession Act without elaborative gloss.
In presentation of his perceived needs, the plaintiff referred to a desire (as is customary, characterised by counsel for the defendants as components of a "wish list") for freehold residential accommodation in or around Glebe; a capital sum designed to facilitate establishment by the plaintiff and his fiancée in a business venture, focussing on food and restaurants and capitalising on the fiancée's qualifications in interior architecture; the cost of a motor vehicle; and a fund for contingencies which might arise in the future.
It was common ground between the parties that the Court can, and should, anticipate the plaintiff's prospective marriage.
The plaintiff emphasised that, having regard to the amplitude of resources available to the deceased, the Court can, and should, find that generous provision ought to be made for the plaintiff's advancement in life, allowing not only for the contingencies of life, but also for remote contingencies, that might arise in the future.
Authoritative judicial precedents bearing upon that submission were brought to attention, including Lloyd-Williams v Mayfield (2005) 63 NSWLR 1 at [29]-[32].
In the end, paying due regard to the guidance available from other cases, the Court is required to make an evaluative judgement about what, if any, provision "ought" to be made by reference to the Succession Act, section 59(2), with due regard to section 60(2) factors.
In discharge of my obligation to make that judgement, I find that the plaintiff ought to be granted a legacy of $1.75 million charged against so much of the "Designated Fund" as necessary to be designated for the purpose of payment of that legacy. In selecting that figure I take into account not only what might colloquially be described as the deceased's "moral duty" to make provision for the plaintiff, the size of the deceased's available notional estate and the plaintiff's aspirations; but also the deceased's entitlement to testamentary freedom, qualified by the operation of Chapter 3 of the Succession Act, an object of which is not to empower the Court to re-make his will.
I proceed on the basis that, although the plaintiff ought to be given a substantial award of provision from the deceased's notional estate, he is not entitled to be established in accommodation beyond his and his fiancées' reasonably foreseeable needs. The fact that the defendants advance no competing need in opposition to the plaintiff's claim does not justify an order that he be given the whole of the property available for designation as notional estate. Any award made in his favour must conform to the criteria for which section 59 of the Succession Act provides.
I will formulate the terms of the Court's orders when I have allowed the parties an opportunity to be heard about the form of the orders to be made for family provision relief and the question of costs.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 February 2018