...
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 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 JJ 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 that 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."
20 Meagher JA (NSWLR at 57) agreed with Priestley JA.
21 Meagher JA had previously expressed a view in Hughes v Hughes Court of Appeal unreported 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).
22 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.
23 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".
24 In Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. 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."
25 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."
26 In Gorton v Parks (1989) 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 acknowledgement 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 all 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 acknowledgement or legitimacy. The idea that acknowledgement by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962."
27 Bryson J in any event distinguished Scales' case (p 11) on the basis that on the facts before him 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 relation. 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. ..."
28 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton's case, 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 p 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 provision. 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."
29 Young J also observed;
"In Fraser'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 Court's 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 sufficiently 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.
30 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.
31 In Walker v Walker (p 27) Young J noted:
"I do not consider that there is any purpose in analysing whose fault it was that the state of non-communication came into place. In family relationships, hurts are often inflicted or suffered some times consciously, some times unconsciously. Sometimes a young child is brainwashed by a custodial parent to consider that the other parent has inflicted some harm, which is all in the mind of the custodial parent. It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fourth 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 great of 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 ..."
32 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."
33 This view was reinforced recently in Nicholls v Hall & Ors (2007) NSWSC 356 where the court said:
"43 There are some statements in the cases that could be understood as meaning that, if there is nothing more than 'bare paternity' in factor (1), the relationship between the applicant and the deceased, then the applicant cannot succeed. In our opinion, such an understanding would be plainly wrong. Even if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors (that is, needs, size of estate and lack of competing claims), a court could find that the child was left without adequate provision for proper maintenance.
44 Such a view is supported by what Holland J. said in Kleinig v Neal (No 2) (1981) NSWLR 532 at 540:
'If it is a case of a parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned for the child's welfare'.
We should make it clear that, in this discussion of 'bare paternity', we are not intending to include a mere sperm donor: in terms of Holland J's statement, it is the persons who make use of the sperm rather than the sperm donor who are responsible for bringing a child into the world.
45 Our view is also supported by what Bryson J. said in Gorton v Parks (1989) 17 NSWLR 1 at 9-10, to the effect that 'the bare fact of paternity' is 'of very great importance in morality'. We agree with Bryson J's justification for departure from what Dixon CJ said on the matter in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 18-20, as conforming to changing beliefs in the community about moral duties to children.
46 It is supported also by what Ipp JA (with whom Tobias JA and Basten JA agreed) said in Palmer v Dolman (2005) NSWCA 361 at 112, to the effect that where an applicant is a child, proof that the applicant is a person in need will often be sufficient to justify an order.