Ford v Simes

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2091 of 2007 STUART CECIL FORD v NATALIE ANN VAISEY SIMES JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Cecil Means Ford who died on 16 March 2004 aged 90 years. The deceased was survived by his children the plaintiff and the defendant. His former wife, Gladys Dorothy Ford, who died on 8 October 2004, also survived him. Last will of the deceased 2 The deceased made his last will on 18 December 2000. Under his will he appointed the defendant, his daughter, his executor and trustee and gave her the whole of his estate. Assets in the estate 3 The substantial asset in the estate was a number of shops at Wilson Road, Mount Hutton which are presently valued at $1.1 million. The deceased had a small sum in various bank accounts which have been collected. After administration expenses and collection of the bank accounts the defendant received $2,262.19. The realty was transferred to the sole beneficiary prior to 30 June 2004. Family history 4 The plaintiff, Stuart Cecil Ford, was born in Merewether, Newcastle in September 1953 and his sister and the defendant, Natalie Ann Vaisey Simes, was born in July 1957. 5 In 1963 their parents separated and the deceased went to live in his dance studio in Beaumont Street, Hamilton where he stayed until 1969. During this time he would come home to shower and use other facilities. 6 In 1966 the deceased was put on 'good behaviour' bond for alleged violence towards his wife. 7 In 1966 the plaintiff attended Newcastle Boys High School where he attained an interest in cinema projection. The deceased purchased the plaintiff's first cinema projector which the plaintiff set up in the shed at his mother's home. 8 In 1969 the plaintiff moved into the studio with the deceased for a few weeks until as a result of court proceedings he returned to live with his mother until March 1970. 9 In 1969 the plaintiffs' parents commenced divorce proceedings and in due course they were divorced. 10 In 1969 the deceased closed the dance studio in Cardiff which he had operated for many years and moved to Main Road, Cardiff. 11 At the end of 1969 the plaintiff left school. He commenced an apprenticeship which was not successful. In February 1970 he commenced another apprenticeship this time in motor body building at a motor car dealership. In March 1970 he moved to a boarding house at Hamilton. 12 In 1971 the plaintiff left the car dealership and began his own business showing movies in clubs using his own projection equipment. 13 In August 1971 the plaintiff obtained his drivers licence. The deceased gave him a Morris 1100 motor vehicle which he later traded in for a Ford Falcon motor vehicle purchased with a loan guaranteed by the deceased. 14 In that year the deceased moved from his Cardiff home to Mount Hutton to live in a flat at his brother Harry's house.

15 In 1974 the plaintiff moved to Sydney for work at Radio 2KY returning to Newcastle on the weekends to conduct movie screenings. 16 In 1985 the deceased commenced building shops at Wilsons Road, Mount Hutton which became the only substantial asset in the estate. 17 In 1990 the plaintiff moved to Queensland where he traded as "The Picture Show Man" in Queensland. He travelled the country towns where he showed movies using his own projection equipment in rented halls. 18 1998 according to plaintiff or 1995 according to the defendant, when the plaintiff was passing through Newcastle on his way to Sydney he saw the deceased. The events of this visit are disputed and I will return to this matter later. 19 On 21 May 1998 the deceased made a will which was similar to the will he had made in 2000 except that it contained difference in the default provisions in case his daughter, the defendant, did not survive him. At the time the solicitor was given a statement which the deceased had dictated to his daughter over the telephone while she had typed it. That statement was admitted into evidence and was in the following terms:

"I provided Stuart many times with motor cars, would organise the finance loan and go as guarantor. Each time I did this, Stuart knew he could take advantage of me, and not act responsibly with repayments. In all my dealings with Stuart, He never made regular payments, and I would end up having to pay as the guarantor. Each time he did this he would promise not to do it again. But when he needed another car because of a car accident or some other reason, I again in wanting to be helpful to Stuart, go as guarantor and again, the same thing would happen again.

When ever Stuart came to visit he would steal anything he wanted.

He always wanted money to buy theatre equipment or parts etc and I would help him out.

He has acted irresponsibly over the years. Used to get tremendous amount of speeding tickets and then not pay the fines. He was arrested one time and put in Maitland Gaol until the fines were either equaled out or the fines were paid. In this instance his mother organised a loan for the money, he promised to pay this money back, he paid back some and then paid no more and said she could pay.

One time he asked/ bullied/demanded $100.00 so that he cold go to Sydney to buy a special theatre projector lens, I gave him the money, when he returned from Sydney he said he could not get the lens So he had bought some clothes instead.

He acts with no respect or regard for me always swearing and using foul language.

He does not contact me at all for Birthdays etc , nor has he for at least the last 10-15 years given me an address or phone number for me to be able to contact him.

The last time I saw Stuart was in 1995 he called out at Mt Hutton while I was mowing the lawn stood straight in front of me and said "Hello, You don't know who I am do you?" I said to him " Should I know you" He said " You silly f - fool I am your son". He then walked away got in a car and drove away. He was so fat and different to the last time he had called to see me so many years before.

In approximately 1993 Stuart was in trouble with the Queensland Police for a number of offences and served' time at Wacol Prison Farm and then was released on a 5 year good behaviour bond.

Stuart has not become an adult I am proud of nor as I have aged has he done anything to assist me. I have not provided my daughter with motor cars or any of the things Stuart has received over the years etc and she does not act at all in any way like Stuart. So I choose to leave my estate to her." 20 In 1999 the plaintiff became involved in community radio broadcasting in Queensland. 21 In 2000 the deceased made his last will and moved to a flat at Hamilton. In December 2001 he was placed in St Joseph's Nursing Home at Sandgate where he remained until his death on 16 March 2004. 22 In March 2002 the plaintiff committed driving, assault and sodomy offences leading to his later incarceration in Wolston Correctional Centre at Wacol, Queensland. He is due for release in 2011. 23 On 25 May 2004 probate of the deceased's will was granted to the defendant. The estate was distributed to her as beneficiary before 30 June of that year. 24 On 8 October 2004 the deceased's former wife died. Her estate was left one half to the plaintiff and one half to the defendant. The plaintiff received approximately $110,000 which has now increased to approximately $114,000. 25 The plaintiff was not told of the death of his mother or his father and he found out about the death as a result of enquiries made on his behalf by a prison Salvation Army chaplain in early 2006. He made enquires from a solicitor in late 2006 and he contacted his present solicitor in February 2007 who investigated his claim and these proceedings were commenced on 2 April 2007. Plaintiff's standing to bring proceedings 26 On 19 October 2005, the plaintiff was convicted in the District Court at Townsville and sentenced to imprisonment for four years for each of eight indictable offences of sodomy, and for 12 months imprisonment for each of two indictable offences of assault occasioning bodily harm. 27 The plaintiff is serving those sentences at Wolston Correctional Centre at Wacol in Queensland. 28 Pursuant to s4 of the Felons (Civil Proceedings) Act 1981, a person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application. 29 The Felons (Civil Proceedings) Act 1981 is a law of the forum, and accordingly applies to these proceedings notwithstanding that the Plaintiff was convicted, and is imprisoned, in the State of Queensland. 30 "Serious indictable offence" is defined by s21 of the Interpretation Act 1987 as "an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more." 31 The maximum penalty under Section 208(1) of the Criminal Code 1899 (Qld) for unlawful sodomy is 14 years imprisonment. 32 The maximum penalty under Section 339 of the Criminal Code 1899 (Qld) for assaults occasioning bodily harm is 7 years imprisonment.

33 Section 3(3) of Criminal Code 1899 (Qld) provides that crimes and misdemeanours are indictable offences, and that offenders cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment. The plaintiff accordingly requires a grant of leave pursuant to s4 of the Felons (Civil Proceedings) Act 1981 in order to bring the proceedings herein. 34 The commencement of proceedings without a grant of leave under the Felons (Civil Proceedings) Act 1981 does not render the proceedings a nullity. Jol v State of New South Wales (1998) 45 NSWLR 283 at 290. Leave may be granted under s4 of the Felons (Civil Proceedings) Act 1981 nunc pro tunc. Vorhauer v NSW Minister for Health and Anor [2005] NSWSC 797 35 Section 5 of the Felons (Civil Proceedings) Act 1981 provides that leave shall not be granted "unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings." 36 It is necessary to consider the substance of the proceedings to see whether they amount to an abuse and I will return to this question later in this judgment. 37 The plaintiff needs the consent of the Public Trustee in Queensland to commence the proceedings. Pursuant to section 95 that consent has been given.

Extension of time 38 Because the application is out of time it is necessary for the court to consider section 16 of the Family Provision Act which allows an application to be made notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said: "It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time." 39 His Honour Young J in several cases has dealt with the principles governing applications to extend time under this Act. In Massie v Laundy (unreported NSWSC 7 February 1986) he indicated that when looking at "sufficient cause" under 16(3) of the Act the factors which one looks at include the following:- (a) is the reason for making a late claim sufficient? (b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended? (c) has there been any unconscionable conduct on either side which would enter into the equation? 40 Apparently he also accepts a view which was expressed by his Honour Needham J in Fancett v Ware (unreported NSWSC 3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (unreported NSWSC 31 March 1988) Powell J when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported NSWSC 8 September 1989). 41 In De Winter v Johnstone, a decision of the Court of Appeal on 23 August 1995 his Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23: "In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief." 42 His Honour Mr Justice Sheller considered that it was only necessary to show that the application was not bound to fail. His Honour Mr Justice Cole seems to have adopted the parties' approach of looking at the strength of the plaintiff's case. 43 The case of De Winter v Johnstone is also useful in that Sheller J commented on the meaning of "unconscionable". He was dealing with an appeal from Master McLaughlin and he referred to the Master's comments to the following effect: "Unconscionable conduct in this context of course relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate and has then decided after the limitation period has expired to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period." 44 With regard to the Master's comments, his Honour observed: "…with all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However the concept of unconscionable conduct is to be directed towards a deliberate holding off designed to lull beneficiaries into false sense of security. There is nothing to suggest anything of that sort in the present case." 45 So far as the explanation is concerned it is plain that the plaintiff did not know of the death of his father until early 2006. He did not know he needed to make a claim within 18 months until 16 March 2007. It took him the best part of a year after hearing of his father's death to put in motion any enquiries about whether he could make a claim on his father's estate. Once he did so the matter was processed appropriately by his solicitors. Although there was a delay by the plaintiff for most of 2006 he was in prison without the usual facilities. He did not learn that he had been omitted from the will until the end of the year. In my view there is an adequate explanation. 46 There is no unacceptable prejudice if time were extended in the present case. The defendant does not point to any change in her circumstances. 47 So far as unconscionable conduct is concerned, there is the problem that the defendant did not inform the plaintiff of the death of his parents. The reason is that there was no adequate means of communication between the plaintiff and the defendant. In 2003 the defendant had tried to ring all the numbers that her mother had for him without success. In due course when she found out that the plaintiff was in prison she wrote to him in early 2007 and informed him of the death of his parents but not when they died. By this time he already knew the details of the will and his omission from its provisions. I am not satisfied that the defendant deliberately did not inform the plaintiff of his father's death so that he would not make a claim. 48 It seems to me that in the circumstances it is appropriate to extend time for the plaintiff to bring the present claim. Eligibility 49 The plaintiff is an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that a Court must take. At page 209 it said the following: "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 Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or 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." The plaintiff's situation 50 The plaintiff is 55 years of age and has no dependent children. He is not married. As I have mentioned he an inmate at Wolston Correctional Centre at Wacol in Queensland and is due for release in 2011. He has no assets of any substance apart from the distribution from his mother's estate which is $114,000. He has prolapsed discs, stomach ulcers and swelling in his legs. He is treated for depression and he has injuries to an eye which make it light sensitive. He has an enlarged prostate. 51 It may be open to the Queensland Attorney-General to make an application to the Court during the last 6 months of the period of imprisonment pursuant to s5 of the Dangerous Prisoners (Sexual Offenders) Act 2003 for an order under (inter alia) s3(5) of Division 3 of that Act for the plaintiff to be detained in custody for an indefinite term if it is established that the plaintiff is a serious danger to the community. However, there is insufficient evidence for me to conclude whether such an application will be made and, if so, what would be the result. 52 All I can conclude is that the plaintiff is, by reason of his imprisonment, unlikely to require any provision for his maintenance, education or advancement in life until at least 2011. 53 The plaintiff's claims take this matter into account and he seeks assistance once he leaves prison. He is asking for a fund of up to $20,000 to allow him to purchase the cinema equipment to enable him to re-establish that business. He also asks for $250,000 to $300,000 to enable him to purchase a modest residence in Townsville. 54 One of the principal questions in this case is the nature of the relationship between the plaintiff and his father and whether having regard to what I might conclude in respect of that relationship whether it appropriate to make provision. 55 Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person "it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person." 56 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows: "This conclusion directly raises the question of whether the word "ought" in s.7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator's Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts. ….. It seems plain from the comparison of the two Acts, and particularly from s.3 of the 1916 Act and s.7 and s.9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose. The Act draws a distinction between the eligible persons referred to in par(a) and par(b) on the one hand and par(c) and par(d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased's person spoken of in s.3 of the 1916 Act and s.7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased. In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin J both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that "many cases suggest that an applicant must show a moral claim …", he went on to say that this was a gloss on the Act and was unwarranted and inconsistent with the language of the legislative scheme. It seems to me that the introduction into s.7 of the present Act of the word "ought" in replacement of the words from s.3 of the 1916 Act "as the Court thinks fit" shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word "ought" seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par(c) and par(d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par(a) and par(b) although it is unnecessary to decide that in this case." 57 Meagher JA (NSWLR at 570) agreed with Priestley JA. 58 Meagher JA had previously expressed a view in Hughes v Hughes (unreported NSWCA 6 June 1989) (an adult daughter case) that the duty arose to make provision as established in that case as follows:- "Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right , but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be." (Emphasis added). 59 Hope and Samuels JJA concurred with the judgment of Meagher JA in Hughes v Hughes. 60 In Benney v Jones, Mahoney JA at 560 said: "Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1. "Where the applicant is a member of the deceased's family, as referred to in the earlier paragraphs of s.6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear." 61 In Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, his Honour noted: "It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation:" 62 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales ("Scales Case") (1962) 107 CLR 9. Scales Case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18): "The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. … In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death." 63 At 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales Case. He said: "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 acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; … Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment 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." 64 Bryson J in any event distinguished Scales Case (at 11) on the basis of the facts before him. He stated that the plaintiffs: "In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way." 65 In Walker v Walker (unreported NSWSC 017 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton v Parkes, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows: "In Singer's case , a widow who had been married less than one year to a 68 year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at page 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that "we doubt this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to "moral duty" or "moral obligation" may well be understood as amounting to a gloss on the statutory language". They then say "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." 66 Young J also observed: "In Fraser's case, Kirby P at p29 said that "I do not consider that it would be safe for this court, or other courts in this state, to disregard the obita 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 Court's reference, in the footnote, to what Murphy J said earlier (p27)." "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 p42 "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 a 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 bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order." 67 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. 68 In Walker v Walker, (at 27) Young J noted: "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.

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. …"

69 These words were recently approved by Ipp J in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 when he said: "112 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." 70 The plaintiff and the deceased had contract until the plaintiff moved to Queensland. The plaintiff was supported by the deceased in the way parents support their children. However, I have no doubt that at times the plaintiff was a great disappointment to the deceased although this does not greatly affect his claim. 71 What is important is that there was only one occasion when contact took place after 1990. The deceased's statement prepared in 1998 puts that occasion in 1995 as does the evidence of the defendant. Having regard to this evidence I accept that the event occurred in 1995. The plaintiff denied swearing at his father on this occasion and gave an account of a friendly meeting for an hour. Given the 1998 statement I do not accept the plaintiff's explanation. 72 The plaintiff claimed to have tried to phone the deceased in the years before the visit but he could not do so. The plaintiff admits the deceased attempted to call him a week after the visit but he did not speak to him. After the plaintiff's visit to the deceased he had no further contact with him for the next nine years. The evidence shows that the deceased kept Christmas and birthday cards sent to him over the years none of which were from the plaintiff. 73 It seems that the plaintiff abandoned the relationship he had with his father after he moved to Queensland. He had the opportunity to continue contact but he only did so on one occasion in a most cursory way. Although this is the case it should not be a bar to a claim but it is a fact to be considered when assessing what claim the plaintiff has on the bounty of the deceased in the context of his need for proper and adequate provision. 74 It is necessary to consider the situation in life of others having a claim on the bounty of the deceased. In this case it is the defendant. Defendant's Situation in Life 75 The defendant is 51 years of age and married. Her children are not dependent upon her. She has $180,000 owing on a joint mortgage on the family home in Sydney that has not been valued. She has credit card debts of $8,105.00 and owes $9,755.00 on a bank overdraft and pays car repayments of $1,159.00 per week. Her assets include $5,000 in a fixed deposit and $33,243.00 in superannuation. She owns no other property apart from the shops she has received from the deceased worth $1,100,000. Her husband earns $81,000 a year as an Information Technology manager and has superannuation of $124,677.00. 76 The defendant is the sole beneficiary and derives rental income from the Mount Hutton shops. This rental income is the defendant's sole source of income and a source of future superannuation. Last year she received $38,000 rental income from the shops. 77 The defendant suffers from back, kidney and low blood pressure problems as well as requiring medication and diet restrictions. The defendant's husband is a diabetic with minor heart problems. The defendant wants to retain the shops in order to continue to receive an income. She does not have any prospect of obtaining any other work given her health and age. 78 The defendant had a good relationship with her father. She cared for him and looked after his affairs from at least 1985 up until the time of his death. Notional estate 79 There is no actual estate and as I have indicated the relevant notional estate was distributed prior to the commencement of these proceedings. There are restrictions on the designation of notional estate under s 27 and s 28 of the Act. 80 Section 27 of the Act requires the Court, in determining what property should be designated as notional estate of a deceased person, to have regard to certain further matters including (inter alia) the importance of not interfering with reasonable expectations in relation to property, and the substantial justice and merits involved in making or refusing to make the order. 81 It was submitted that the making of an order designating any distributed property as notional estate would interfere with the reasonable expectations of the defendant in relation to such property. 82 Section 28(5) of the Act provides: "On an application in relation to a deceased person, being an application: (a) made pursuant to an order under section 16 allowing the application to be made [emphasis added], or (b) for an order under section 8 for additional provision, the Court shall not make an order designating property as notional estate of the deceased person by reason of a prescribed transaction or a distribution unless it is satisfied: [emphasis added] (c) that: (i) the property was the subject of the prescribed transaction or distribution, (ii) the person by whom it is held holds the property as a result of the prescribed transaction or distribution as trustee only, and (iii) the property is not vested in interest in any beneficiary under the trust, or (d) that there are other special circumstances (including, in the case of an application made as referred to in paragraph (a), the incapacity, during any relevant period, of the person by or on whose behalf the application is made) which justify the making of an order so designating the property . "[emphasis added]

83 In relation to this case the relevant section is s 28(5)(d). Apart from stating incapacity as a special circumstance the sub-section gives no other indication of what constitutes such special circumstance. However it is clear that s 27 applies when a claim is made both before and after the time limited by s 16. Section 28(5) in a case where an extension is to be allowed may thus be thought to impose either a further requirement over and above the matter, which a court will consider under s 27 or merely a requirement that a circumstance be "special". In s 28(5)(d) the word "other" is used in describing "special circumstances". That I think is grammatically a reference to the matter appearing in s 28(5)(c). It may be that the matter in s 28(5)(c), namely a discretionary trust, was thought to be a special circumstance. 84 In a case of Barker & Anors v Magee [2001] NSWSC 563 I made the following comments on the section: "The provisions in s28 (5)(d) only apply in cases where an extension of time is necessary or an application is made for subsequent provision under s8. That latter pre-supposes that there was an earlier application under s7. In both those circumstances it can be expected as a matter of course that the estate would be distributed or parties may have conducted themselves on the basis that the dispositions at the death of the deceased will not be affected by claims of dependents. This additional gateway in respect of this area of late or further claims has a further gateway which requires special circumstances. The purpose really is to provide additional protection to persons taking under the will or under prescribed transaction and who may have ordered their affairs on the basis that time has expired." 85 In Cetojevic v Cetojevic [2006] NSWSC 431 Campbell J commented on this requirement in these terms: "76 Thus, I turn to the question of whether there are "other special circumstances" , within section 28(5)(d).

77 The case law shows that no exhaustive account of what counts as "special circumstances" has been attempted to be given. Previous decisions have held them to include incapacity as a result of infancy ( Dare v Furness (1997) 44 NSWLR 493; Stojcesvska & Tosevski v Tosevski [2001] NSWSC 274 at [45]), and the strength of an applicant's claim (including her financial and other contributions to the assets of the Deceased), together with the fact that it was through no fault of hers that her application was not made within the prescribed period ( Stojcesvska & Tosevski v Tosevski [2001] NSWSC 274 at [46]). They are not limited to the types of circumstance which are expressly mentioned in section 28 or circumstances closely analogous to them: Lewis v Lewis [2001] NSWSC 321 at [85]. I also venture to repeat the remarks I made in Application of O and P [2005] NSWSC 1297 at [57]-[60] concerning the phrase "special reasons" in section 101(5) Adoption Act 2000 : "57 It is fairly common for legislation to confer a power on a court to adopt some course of action if there are " special reasons". In Jess v Scott (1986) 12 FCR 187 the Full Federal Court (Lockhart, Sheppard and Burchett JJ) considered a provision which allowed a court "for special reasons" to permit an appeal out of time. They said, at 195, that what that rule required was: "… that there be shown a special reason why are the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify a departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this. … It should not be overlooked that r 15(2) enables leave to be given "at any time"; the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. " See also, to similar effect, Minister for Community Services & Health v Chee Keong Thoo (1988) 78 ALR 307 at 324 per Burchett J; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; (1991) 103 ALR 684 at 686-7 of ALR per Burchett J. 58 This meaning of "special reasons" now been decided by the Court of Appeal in Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385 to be applicable in section 101(5). At [44]-[46] Giles JA said: "44 In Baker v The Queen [2004] HCA 45 [(2004) 210 ALR 1; (2004) 78 ALJR 1483] Gleeson CJ said (at [13]) - "There is nothing unusual about legislation that requires courts to find "special reasons" or "special circumstances" as a condition of the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors." 45 In the same case Callinan J said (at [173]-[174]) that "special reasons" shared the characteristics of which Lord Bingham spoke in relation to "exceptional circumstances" in R v Kelly (2000) QB 198 at 208, that - "We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered." 46 Barrett J took up these observations in Application of R M and E S M, re Y at [12], saying that the court could only act "if it positively finds some factor or circumstances related to the best interests of the child that is out of the ordinary course, unusual, special or uncommon and that is not regularly, routinely or normally encountered". I respectfully agree; but it would be a mistake to attempt to define or categorise what might be special reasons related to the best interests of a child." 59 In exercising a power which is able to be exercised where there are "special reasons" , "doubtless the discretion of the Court is very large, and necessarily so; but it must have as its basis some circumstance which it can reasonably regard as "special reasons" for lifting the particular" circumstance out of the usual: Gourlay v Casey (1927) 38 CLR 586 at 591 per Isaacs, Gavan Duffy and Powers JJ. 60 When the Court comes to exercise the discretion under section 101(5) from time to time, " … a discretion to relax the requirement of general rules should not itself become entangled in a web of rules spun out of the Court's discretionary decisions. The tendency in some of the decisions we have discussed to regard a particular factor considered previously, in the light of other circumstances, as requiring the same effect to be given to it in the different situation before a court on a later occasion is a temptation which a court should resist. Decisions are not authorities upon the facts but upon principles; the facts must be regarded as unique to the particular case." (per Lockhart, Sheppard and Burchett JJ, Jess v Scott (1986) 12 FCR 187 at 196).

78 In my view, a similar approach should be taken to the phrase "special circumstances" in section 28(5)(d) Family Provision Act 1982 .

79 I will assume without deciding, that the structure of the Act requires there to be more demonstrated to prove "special circumstances" than to justify an extension of time under the Act. Even on that assumption, here there is, in my view, considerably more. The defendant is a widow with two very young children. She has no real estate whatsoever. The only investment of her husband was his superannuation, which is quite small in amount, and his interest in this property. The equity from her own home unit has gone towards it. As well, the unusually close family relationships which there were during Nenad's life are a most important factor. This family was not only emotionally close, but their financial affairs were very closely intertwined as well. There was a pooling of assets, in a way which would make it, in my view, unjust for the estate to lie where the legal interest in it has fallen through the chance operation of the law of survivorship. The fact that the estate is all notional also adds to the special circumstances." 86 I note that his Honour makes the assumption that special circumstances have to be something more than to justify an extension of time. He seems to have regarded the strength of the plaintiff's case as an important matter.

87 In the present case the plaintiff in submissions suggests the following as special circumstances:- "(a) the deceased and his wife separated when the plaintiff was about 9 years old. Despite living in the family home at Islington with his mother, the plaintiff had daily contact with his father, visiting him daily at his Dance Studio (the plaintiff had a key), and being given lunch money for school by the deceased; (b) there was violence at home: the defendant's evidence is that the deceased assaulted his wife. The plaintiff's evidence is that his mother suffered from some mental illness, the symptoms of which included rage. His evidence was his mother damaged his cinema equipment. When he was about 16, he ran away to live with his father. His mother obtained court orders against the plaintiff (the defendant's evidence was he was ruled uncontrollable, requiring him to live with his mother until March 1970); (c) the deceased moved to Cardiff in late 1969. In March 1970 the plaintiff moved out of home and into a boarding house at Hamilton. He was 16 1/2 years old. His father paid his board. The Court should infer the plaintiff lived at Hamilton to be close to his work at the Newcastle Car Dealership where he was apprenticed; (d) the deceased encouraged and mentored the plaintiff in his passion for cinema projection equipment. The deceased paid $250 in the early 1970s for the plaintiff to buy a projector (oral evidence). The deceased drove the plaintiff to his evening projection commitments at Maitland Leagues Club and other places; (e) the plaintiff was given the deceased's Morris 1100 vehicle upon obtaining his driver's license. The deceased agreed to and did guarantee the plaintiff's purchase of a Ford motor vehicle, the Morris being used as a trade-in. That Ford was written off one wet evening (oral evidence) and the insurance paid for another vehicle, the encumbrance on it being guaranteed by the deceased; (f) in this way the deceased prepared the plaintiff for his career in the business of cinematic projection, a career that would see the plaintiff become an itinerant well away from Newcastle; (g) the first step away was for the plaintiff to work in Sydney as a radio panel operator on the weeknight graveyard shift. He returned to Newcastle on weekends where he had screenings and contact with the deceased; (h) the next step was in 1990 when the plaintiff moved to Queensland. He was engaged in installing and servicing cinema equipment and screening movies in rented halls in country centres. His evidence is that he made phone calls to his father but often could not get to talk to him because the telephone was his uncle's and aunty's (oral evidence and first affidavit para 49). Telephone contact was erratic on both sides (paragraphs 51 and 52). He was thousands of kilometres from his family; (i) in 2000 the plaintiff moved to North Queensland and ceased the screenings (bad back) and worked in radio until he was arrested in April 2002; (j) the arrest resulted in his incarceration in Townsville when he was violently assaulted. His right eye was affected by the prison assault and a piece of bone was broken near that eye (oral evidence); (k) the plaintiff was kept in custody for many months. He was eventually charged and convicted of 3 types of offences: sodomy, assault occasioning actual bodily harm; and dangerous use of a motor vehicle. The convictions were achieved in 2005 upon guilty pleas being entered; (l) given the shame involved in being charged with such offences, it is little wonder that for the period 2002 to 2005 the plaintiff did not contact any member of his family; (m) after settling in the high security accommodation at Wacol, the plaintiff, sometime after 2005, set about trying to contact his parents. His phone calls to his mother went unanswered (oral evidence). Both parents were dead; (n) the plaintiff sought the help of the Salvation Army to contact his parents. He was advised by the chaplain his parents were both dead. He wrote to his sister, seeking information, including when they died. Her written response was unhelpful and insulting (oral evidence of both parties). She gave no dates of death; (o) the plaintiff's mother left him half of her estate, being half the proceeds of sale of the Islington home, notwithstanding the difficulties they obviously experienced in the 1960s; the only family the plaintiff has is the defendant. He has never been married and is single. His prospects are dim: he will emerge from prison and it is submitted he will be treated as a convicted paedophile. He will have access to what is left of the $120,000 legacy from his mother's estate (after costs) and nothing else. His industry calling in cinema will prove difficult to resurrect, including for health reasons. He will be in his late 50s; and (q) the plaintiff, once settled into the routine of goal, attempted to contact his parents. Doing that, it is submitted, was no small step, given the shame naturally associated with his crimes." 88 These can be summarised in the following way. The plaintiff had a hard early life in a broken home. Nevertheless the deceased encouraged and helped him in the occupation that was to take him away from home and to Queensland. He did move away in 1990 and in 2002 his life took a turn for the worse as a result of his involvement in criminal activity. He had difficulty finding out about his parents death and he will emerge from prison as a convicted paedophile. His mother did not feel the same way as the deceased and provided for the plaintiff in her will. 89 These matters, which play at the heartstrings, do not take into account the deliberate abandonment of the relationship with his father long before he became involved with the criminal justice system. As to that involvement the defendants submit that it is self-inflicted. But that is not always the correct approach in these matters, as the court has to make its judgment on the situation at the time of the hearing. As was said in Re Hattie [1943] SR (QLD) 1 at 26: "…a just father's moral duty is to assist the lame ducks amongst his offspring, provided they be not morally or otherwise undeserving." 90 Turning to the strength of his claim, at present the plaintiff has sufficient funds to set up in business, if that is a suitable occupation for him, on his release. His only other claim is for funds to provide him with a home on his release. A sum of $250,000 to $300,000 is sought. 91 In McGrath v Eves [2005] NSWSC 1006 Gzell J referred to the courts approach to the question of moral duty when considering claims by children to be provided with funds for a house. He said: "67 When it comes to children, as Young J observed in Shearer v The Public Trustee , NSWSC, unreported, 23 March 1998, it has never been said by any court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous. 68 In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109]-[110], White J, having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this had occurred included Re Buckland, deceased [1966] VR 404 and Ogden v Green [2003] NSWCA 352. 69 White J's decision was upheld by the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189. In the course of his judgment, Bryson JA at [31] pointed out that there were features to the case that were rarely encountered in claims under the Family Provision Act 1982 and rarely encountered together. First, the value of the shares designated as notional estate was very large in comparison with the estates ordinarily encountered. Secondly, because the appellant was otherwise amply provided for, the further provision ordered by White J could have no adverse effect on her wellbeing. Thirdly, the applicant did not have any needs in terms of lack of present provision for necessities and amenities of life on an ordinary scale of needs as understood in the community generally. 70 It was submitted that Mayfield was distinguishable by the absence of these features in the instant circumstances and because the appellant in Mayfield had filed no financial evidence and put forward no competing financial or other needs for the Court to consider. 71 There are differences of fact between Mayfield and the present case. But they do not affect the central proposition that there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That proposition was not criticised by the Court of Appeal. Indeed, at [32], Bryson JA observed that it was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision the court ought to order." 92 In this case if one takes into account the abandonment of the relationship it is difficult to justify the provision of funds for a house. I note that the notional estate is large but not excessively so and there has been no change of position by the defendant. She may well have to sell the shops to meet any award but she would be left with plenty of funds, which could be invested to produce an income. 93 In my view the plaintiff has not established the existence of "other special circumstances" which would (within the meaning of s28 (5)(d) of the Act) justify the making of an order designating the distributed property as notional estate. 94 I order that the summons be dismissed. I will hear the parties on costs.

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