Lo Surdo v Public Trustee

Supreme Court of NSW|2005-09-20|Before: Hamilton J, Young J

CITATION : Lo Surdo v Public Trustee [2005] NSWSC 1186

HEARING DATE(S) : 9 - 12 May, 6 - 9 and 20 September 2005

DECISION : Application by adult son for provision under Family Provision Act 1982 refused.

LEGISLATION CITED : Family Provision Act 1982 s 16(3)

Day v Perpetual Trustee Co Ltd [2001] NSWSC 394 Dulhunty v Dewhirst [2005] NSWSC 607 Farquharson v Grace [2005] NSWSC 87 Gorton v Parks (1989) 17 NSWLR 1 Hughes v Hughes NSWCA 6 June 1989 unreported CASES CITED : In re Jennings, decd [1994] Ch 286 Singer v Berghouse (1994) 181 CLR 201 The Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Vigolo v Bostin (2005) 79 ALJR 731 Walker v Walker NSWSC 17 May 1996 unreported Young J

Carmelo Lo Surdo (P) PARTIES : Public Trustee as Executor of the Last Will and Testament of the Late Carmela Cipolla (D1) Iolanda Quagliero (D2)

R D Wilson (P) L Ellison SC (D1) COUNSEL : A M Gruzman (D2)

N J Papallo & Co (P) P J Whitehead Esq (D1) SOLICITORS : Di Lizio & Associates (D2)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3317/02 CARMELO LO SURDO v PUBLIC TRUSTEE & ANOR (ESTATE OF CARMELA CIPOLLA) JUDGMENT ISSUES 1 HIS HONOUR: The plaintiff, Carmelo Lo Surdo, claims to be a son of the testator, Carmela Cipolla, and has brought out of time a claim for provision under the Family Provision Act 1982 ("the FPA"). The second defendant is the testator's daughter, Iolanda Quagliero. She is the testator's only other child and the only other person who may be an eligible person. The testator's executor is the Public Trustee, who is the first defendant but who did not play an active part in the proceedings. The second defendant is referred to in this judgment as "the defendant". 2 The issues which arise for decision are:

1 Whether the time for bringing the proceedings ought be extended. 2 Whether the plaintiff was in fact the son of the testator and therefore an eligible person. 3 Whether provision ought be made for the plaintiff out of the testator's estate. 4 Whether any part of the testator's property which has been distributed from the estate ought be designated as notional estate. FACTS 3 The facts that follow are uncontested or appear clearly from the evidence, except where otherwise indicated. 4 The testator was born at Motta Camastra in Sicily in about 1918. On 22 September 1938 she gave birth to the defendant, out of wedlock, in Messina, Sicily. 5 On 31 July 1940 the testator undoubtedly gave birth, again out of wedlock, to a son in Motta Camastra, Sicily, who was given the name Carmelo Ranieri (there being no explanation in the evidence for the surname Ranieri). The plaintiff has put in evidence the birth certificate of a child who was born on 31 July 1940 and whose name is recorded as Carmelo Ranieri. The plaintiff claims that he is that child, although doubt is cast on this by the defendant. The son born to the testator was given up by her to an orphanage in Messina. That orphanage was bombed during World War II and the children were evacuated to an orphanage about 60 km outside Messina. On 11 August 1942 the child then called Carmelo Ranieri was taken from the orphanage by Antonino Lo Surdo and his wife, Giuseppa Gaetano, to live with them and, after his birth in 1943, with their son Pietro Lo Surdo in their home at Motta Camastra. 6 The Italian birth certificate in its full form is (unlike its Australian equivalents) an ongoing document, which records not only the birth but also subsequent rites of passage of the subject person. That of Carmelo Ranieri, in its English translation, states that on 20 July 1949 Carmelo Ranieri was "adopted" by Antonino Lo Surdo and Giuseppa Gaetano. However, the word used in the Italian document is "affiliato." The evidence of experts in Italian law shows that affiliation (which was abolished in 1983) was a status quite different from adoption, which was and is also known in Italian law. Adoption in Italy, as in Australia, breaks the parental tie between natural parents and child and substitutes a parental tie between the child and the adopting parents. Affiliation was a process carried out through the courts, but which did not have that effect on the parental tie. The closest analogy in Australia is the fostering of children, although this is effected through state welfare authorities and not through the courts. Affiliation did not effect any alteration to rights of inheritance, whereas adoption does. 7 Although, as will appear hereafter, the plaintiff subsequently claimed to have been adopted by the Lo Surdos and to have inheritance rights accordingly, the Italian records produced show no trace of an adoption. Since the Italian records relating to the plaintiff appear to be otherwise complete, it seems reasonably clear that he never was adopted by the Lo Surdos. In particular, I decline to draw any inference from the declaration of succession of the Lo Surdo property mentioned in [9] below that there once existed a record of an adoption which has since been lost. 8 On 15 August 1951 the testator migrated to Australia, having been sponsored by Francesco Cipolla. The following month she married Francesco Cipolla in Redfern. She lived the rest of her life at 12 Douglas Street, Redfern. In October 1952 the defendant arrived in Australia as a migrant, having been sponsored by the testator. In 1956 the defendant married Carlo Quagliero. 9 On 12 December 1959 Antonino Lo Surdo died. In a declaration of succession shortly after that time, Carmelo Lo Surdo as well as Pietro Lo Surdo was dealt with as a son of the deceased. Consequently, a small piece of real estate in Spadafora which Antonino Lo Surdo owned was shown as devolving as to a one half share on his wife and as to a one quarter share on each of Carmelo Lo Surdo and Pietro Lo Surdo. 10 On 29 July 1961 the plaintiff married Angelina La Fauci in Sicily, as again recorded on his birth certificate. They had two sons and a daughter, the eldest son before they came to Australia, as recounted below, the other two children subsequently. 11 In 1963 the plaintiff made enquiries after his birth mother, was given the testator's address in Redfern and wrote to her. The testator accepted him as her son and was overjoyed, as she had felt guilty at giving him up to the orphanage. She wrote to him, before his migration to Australia, a considerable number of letters, which have been preserved. In 1963 she sponsored his migration to Australia. In support of that application, the testator made a statutory declaration on 1 November 1963 in which she stated: "I gave birth out of wedlock to the child Carmelo Ranieri (now Lo Surdo) mentioned on the attached birth certificate … As I was unmarried and unable to support the child I gave him to the authorities of the commune of Motta Camastra." 12 On 22 January 1964 her husband died, leaving her their home at 12 Douglas Street, Redfern. On 15 March 1964 she withdrew her sponsorship of the plaintiff's migration, stating that her husband had died and she was alone. His sponsorship as a migrant was continued by the defendant, who at that time undoubtedly accepted him as her brother, together with her husband. Letters from the defendant to the plaintiff in 1963 are also preserved. 13 The plaintiff arrived in Australia with his wife and his son Salvatore on 23 December 1964 and they lived here until October 1967. For three months they lived with the defendant and thereafter rented a house of their own. The evidence as to the relationship between the plaintiff on the one hand and the testator and the defendant on the other while he lived in Australia is unsatisfactory. It is remarkable that the plaintiff in his affidavits is silent as to the nature of these relationships during that period and he was not cross examined concerning them. The defendant says that the testator expressed reservations about the plaintiff from shortly after the time of his arrival in Australia, saying, "he has a strange character." She says that the testator stopped visiting the plaintiff at the defendant's home while the plaintiff was still living there and that the testator told her that the plaintiff and his family did not visit her home at 12 Douglas Street, Redfern at any time while he was living in Australia. It is even more remarkable, after this evidence was filed on behalf of the defendant, that the plaintiff filed no evidence in reply to it. 14 The plaintiff left Australia with his wife and son to return to Sicily on 24 October 1967. Whatever the relationship between the plaintiff and the testator while he lived in Australia, the plaintiff left without forewarning or saying goodbye to either the testator or the defendant. This seems clear on the evidence. Cross examined about this, the plaintiff did not claim that he said goodbye to them. The defendant says that her mother said to her after his departure, "Carmelo and his family go back to Italy and he did not even bother to let us know? What a strange character he has … A true son and brother does not do things like that." 15 On 6 May 1969 Giuseppa de Gaetano, the widow of Antonino Lo Surdo, died and her half share of the property derived from her husband is shown in Italian records as having devolved upon Carmelo and Pietro Lo Surdo in equal shares as her sons, so that each was shown as owning half the property. Since his mother's death, Pietro Lo Surdo and his family have lived in the property. 16 After the plaintiff's return to Sicily from Australia, the plaintiff gave the following accounts of his contact with the testator. In his first affidavit he said: "After returning to Sicily the correspondence between my late mother and I [sic] became less. And eventually during the 1970's we started telephoning each other. I would speak to my late mother and Iolanda about twice every year. This continued to the time my late mother died."

In a later affidavit he said: "Following my return to Italy I corresponded regularly with the deceased and my sister by post and telephone on a regular basis." 17 The defendant denied that after the plaintiff left Australia for Italy he ever contacted the testator or she ever contacted him, except for one telephone call at four in the morning. 18 The defendant did, however, on both her evidence and the plaintiff's, visit him in Sicily on a number of occasions. There were at least four such occasions in 1972, 1977, 1985 and 1992. The plaintiff says that on each of those occasions the defendant brought news of the testator. However, it would seem that on each occasion most of the defendant's time was spent staying with friends in a town which was a two hour bus ride away from the plaintiff. The defendant stayed at the plaintiff's house overnight on two occasions, otherwise there was only a day visit to him by her on each occasion. She says that she made those visits principally to see the plaintiff's wife, with whom the evidence shows that she has remained friendly. There were not any visits after 1992, although the defendant went to Sicily in 1995. 19 The defendant's husband Carlo Quagliero died on 19 May 1998. 20 On 31 January 2000 the plaintiff commenced proceedings against Pietro Lo Surdo in the Tribunale de Messina for judicial division of their co owned property in Spadafora. On 14 March 2000 Pietro Lo Surdo filed a defence on the grounds of his exclusive occupation and improvement of the property and its abandonment by the plaintiff. He did not deny that the plaintiff was a son of Antonino Lo Surdo and Giuseppa Gaetano. 21 On 13 April 2000 the plaintiff returned to Australia. It is not clear who paid his fare, but he did not. He said that he "came to Sydney to visit my late mother and Iolanda and my friends. I arrived here with about $200.00 …" He remained for just over two months, until 22 June 2000. He stayed with the defendant. He asked on a number of occasions to be taken to visit the testator, but the defendant kept putting him off. Finally, he went and found the testator without the defendant. On his own account, the testator did not recognise him when he encountered her in the street. On a subsequent occasion, about two weeks before his departure from Australia, the defendant came and found him at the testator's house and there was an uncomfortable stand off. To this point in this paragraph the facts are undisputed. There is, however, no agreement as to how often he visited the testator and as to what occurred between them. The defendant gave evidence that she knows of three occasions on which the plaintiff went to the testator's house, although on one of those occasions it is not clear that he was admitted to the house. The plaintiff says that the testator spoke ill to him of the defendant and the defendant says that the testator spoke ill to her of the plaintiff. The plaintiff says that his mother said to him, "What are you doing here Carmelo, have you come here for your inheritance?" He says that he denied to her that that was of any importance to him. 22 After his return from Australia in June 2000 he claimed that he wrote two letters to his mother, that he made and kept photocopies of those letters and that, at the time of the trial, those copies were where he was staying in Five Dock. However, those copies were not produced. 23 On 28 September 2000 the testator died. On 19 October 2000 the defendant attended the Public Trustee office at Parramatta and provided the Public Trustee with details of the estate. She advised that she was the only next of kin and did not advise the Public Trustee of the existence of the plaintiff. She claims that she did not believe the plaintiff to be the deceased's son or her brother. She did not inform the plaintiff of the testator's death until 2 November 2000, when she wrote to him saying, "Carmelino the dear and beautiful mother has gone in no time." However, despite what the plaintiff said in evidence, the defendant did not in that letter make any representation that it was only that day that she had died or any representation as to the time of her death. He says he did not receive the letter until 15 December 2000, when he found it wet in his letter box. 24 On 29 November 2000 probate of the testator's will was granted to the Public Trustee and on 20 December 2000 a distribution submission was prepared in the Public Trustee office and approved on 22 December 2000. Not surprisingly, on the information given by the defendant to the Public Trustee, the box in the form "No proposed FPA" was ticked. 25 In June 2001 the plaintiff for the first time obtained the full form of his Italian birth certificate from the authorities at Motta Camastra and within a day or two conveyed it to the Italian lawyer acting for him in the property suit against his brother. That lawyer promptly advised him that, in view of his status as "affiliato", that suit could not be maintained and the plaintiff gave instructions that he be extricated from it, although it was not formally dismissed until 2003. This portion of his evidence, despite what is said later, I accept. 26 Distribution of the estate, except for a small amount of money, proceeded during 2001. The Douglas Street, Redfern property was sold and out of the proceeds a first distribution of $300,000 was made to the defendant on 14 November 2001. On about 27 November 2001 properties at Leichhardt and Bargo were transferred in specie to the defendant, although the deeds were not delivered to her by the Public Trustee until 2003, after a letter of demand from her solicitor. 27 On 9 November 2001 the plaintiff again returned to Australia. By this time he was in contact with a cousin, Isabel Walker, who is married to Anthony Walker, a solicitor. Mr Walker has given the plaintiff support, including by lending him $45,000 for costs, but has not acted for him. All conversations with Mr Walker have been through Mrs Walker, who speaks Italian, whereas Mr Walker does not, nor does the plaintiff speak English, except for a few words. Mr Walker gave evidence, but Mrs Walker did not. 28 On 27 November 2001 the plaintiff had a conference with Domenica Riggio, solicitor, concerning a claim on the testator's estate. This was well within the limitation period. Ms Riggio sent a letter of demand to the Public Trustee on 6 December 2001. She seems to have been unaware of the 18 month limitation period for claims under the FPA. So does Mr Walker, although a solicitor. Ms Riggio sent a brief to advise to counsel on 22 March 2002. The limitation period expired on 28 March 2002. Advice was received from counsel on 21 May 2002 of the existence of the 18 month limitation period. These proceedings were commenced on 25 June 2002 and an extension of time under s 16(3) of the FPA has been sought to that date. 29 As to the defendant's relationship with the testator, although there has been some tangential evidence suggesting friction between the testator and her daughter, there is not really any contest that the daughter had a close relationship with her mother all her life and looked after her in her old age. She also assisted her mother in looking after her grandmother. She claims to have made contributions to properties in the testator's estate. The mother was a Jehovah's Witness but, although there is some evidence that some people found her hard to relate to on that ground, it does not appear to have disrupted the relationship between mother and daughter. FINANCIAL SITUATIONS

30 The assets of the estate were stated by the executor as follows: Real Estate situate at 42 Rofe Street, Leichhardt $230,000.00 Real Estate situate at 10 - 12 Nooral Street, Bargo 235,000.00 Westpac Bank Alexandria A/c 032037-124-521 1,757.77 Commonwealth Bank Redfern A/c 7622315006985 2,907.50 Westpac Bank Alexandria A/c 129218 2,328.23 Gerard Harding Partners Accrued Rent 42 Rofe Street 593.10 Estate of Francesco Cipolla 335,422.88 $808,009.48 TOTAL

The house at 12 Douglas Street, Redfern was encompassed in the item of $335,000 recorded as her late husband's estate. 31 The evidence as to the plaintiff's financial circumstances is far from clear or satisfactory. The whole of what follows emanates from the plaintiff without corroboration. He is separated from his wife. The evidence indicates that he left her for another woman. He has three adult children, two sons and a daughter. The wife and daughter live in the unit which was the matrimonial home. It is co owned by the plaintiff and his wife. It is suggested that the wife will receive the whole of the unit by way of a property settlement, although that is not finalised and there is no clear evidence that she will receive the whole property. Nor is there any evidence as to its value. The plaintiff owns a two thirds interest in a 450 sqm block of land at Via Nazionale, Venetico, Sicily. The other one third is owned by a son who is living in Sicily. The land has commercial potential. A building of up to three storeys and 11 metres in height may be erected on it. At one stage there was a firm proposal for the plaintiff and his son to develop the land by erecting a building on it and conducting a discotheque there. That proposal has not proceeded, apparently by reason of the wife discouraging the son from going into business with his father. It would seem that this land may have considerable value, but no evidence of its value is brought forward. On that land is constructed what the plaintiff claims is an "illegal" garage in which he lives. The garage has a toilet, running cold water and a stove with bottle gas. However, he has meals with his godson's family and assists them by doing some cooking in return for eating with them. 32 The plaintiff is a qualified pastry cook. Up to April 2001 he conducted a pizzeria in premises close to the Venetico land. It seems clear that it afforded him a living. He could now work as a pastry cook for about €50 - €60 per day. When he turned 65 on 31 July 2005, he became entitled to a pension of about €400 per month. He sold his business in 2001 for 30m lire or about $30,000, but appears to have dispersed that money. 33 The plaintiff seeks provision out of the deceased's estate which would enable him to purchase a small apartment in Messina. He gave evidence of an apartment which he inspected. It would seem that such an apartment may be purchased for under $100,000. The plaintiff also seeks provision which would enable him to pay his present debts of $45,000 to Mr Walker, $2,000 to Mr Biagio Di Mento, $1,200 to his godson and $10,000 to Mr Midiri, his Italian lawyer. 34 The plaintiff also contends that, at the age of 65 and without regular employment, he has a real need for a nest egg or a lump sum which he can rely on should his circumstances take a turn for the worse. The appropriate size of such a nest egg depends upon the plaintiff's foreseeable needs and the size of the estate. Different minds may come to different conclusions as to what is an appropriate nest egg. But in the case of a relatively large estate the Court should consider not only the basic necessities of life but also a little bit of the cheese and jam referred to by Bryson J, as his Honour then was, in Gorton v Parks (1989) 17 NSWLR 1 at 9. 35 In the alternative to specifically providing the plaintiff with a sum of money which would enable him to purchase a unit, the plaintiff submits that it would be appropriate that he receive a fund which would enable him to rent an appropriate apartment in Messina. At the plaintiff's age he has a life expectancy of about 18 years (according to the Australian life tables). On this basis, he seeks a legacy of $250,000. In any case, he asks for an order that his costs be paid out of the estate on the ordinary basis. 36 The defendant's financial circumstances at the time of the trial were as follows: House property at 16 Swanell Avenue, Chiswick $1,100,000 Real Estate situate at 42 Rofe Street, Leichhardt 460,000 Real Estate situate at 10 - 12 Nooral Street, Bargo 338,000 Apartment at 21 Via la Runchi, Giardini Naxos, Sicily 150,000 Westpac Bank Five Dock A/c 4,800 Cooperative Trading Society Limited Account (containing balance of $300,000 payment from estate) 100,456 $2,153,256 TOTAL

37 The $338,000 valuation of the Bargo properties is on the basis that they are sold in one line; if sold separately they could fetch a total of $430,000. In relation to 42 Rofe Street, Leichhardt, the defendant says that her grandmother left this property to her mother; the defendant helped her grandmother pay the mortgage. In respect of the Bargo properties, the defendant claims to have contributed both to the purchase of the land and the construction of the one house that stands on it. The cash advance from the Public Trustee has been reduced to $100,456 by living expenses and costs of these proceedings. 38 As to her income and expenditure, the defendant says that, prior to November 2001, she was receiving the old age pension and used this money to live off as well as rent from the Leichhardt property. After the Public Trustee paid her $300,000 and transferred the Bargo and Leichhardt properties to her in November 2001, the old age pension was cut off. The Leichhardt property has not been let since January 2003. The house at Bargo is not let. She is now living out of the proceeds of sale of the Redfern property. She claims that her weekly expenditure is as follows: Expenditure Amount

Groceries, entertainment, travel expenses $200.00 per week estimated

Rates, maintenance, and insurance to properties $400.00 per week estimated

CREDIT OF WITNESSES 39 The principal witnesses were the plaintiff and the defendant. The other witnesses who gave oral evidence were Anthony Walker, Biaggio di Mento and Rosario Floridia as well as Italian law experts. No credit issue arose as to the experts. The other witnesses appeared to give their evidence in a straightforward manner. In particular, I accepted Mr Walker as a witness of truth. 40 The plaintiff was a very unsatisfactory witness. His evidence contained many inconsistencies. Those inconsistencies include the following. In relation to the block of land in Venetico, which appears to be his principal asset, he swore in an affidavit that he was the owner of only a one third share, the other two third shares being owned by his sons. He conceded in cross examination that one of his sons gave him his share as long ago as 1990, so that he became and remains a two thirds owner of that land. He swore that he had not alleged that the breakdown of his marriage was caused by his wife Angelina La Fauci but, after being shown a document, conceded that he had made a claim that the marital relationship was broken exclusively by the fault of his wife. He swore both that he had instructed his Italian lawyer to settle the Lo Surdo property case on the basis that each side pay its own costs and also that he had instructed that lawyer to try to obtain his costs from the other side. He swore that he had written two letters to his mother after his return from Australia in 2000, had made and retained copies of those letters and that those letters were where he was staying in Five Dock at the time of the trial. Those copy letters were not produced. For none of these inconsistencies did he have any satisfactory explanation. 41 There were other indications adverse to his credit. These included lack of honesty in his dealings with the Italian revenue authorities. In both his 2000 and 2001 visits to Australia on tourist visas he did paid work, although he knew this was contrary to the terms of the visas. His whole course as to the production of documents that he was required to produce was unsatisfactory, although he conceded that the 14 requisitions for production of documents had been read to him in Italian by his lawyer in Sicily before he came to Australia for the trial. I also took into account his demeanour in giving evidence. 42 The conclusion I came to in relation to the plaintiff was that he was a witness of so little credibility, that in general terms I should accept his evidence on a particular subject matter only when it was contrary to his interest or was corroborated by a credible witness or some documentary evidence. 43 The defendant I also found an unsatisfactory witness, although not to the same extent as the plaintiff. I formed the view that she was attempting to give a true account of the earlier events, particularly relating to the plaintiff's discovery of his mother and sister in Australia and his sojourn here from 1964 to 1967. She has become and remains very emotional about events in the 1990s and afterwards, particularly concerning the plaintiff's visits to Australia in 2000 and subsequently and concerning her mother's death, the plaintiff's claim and these proceedings. It is certainly not to her credit that she did not mention the plaintiff to the Public Trustee, even as a person who claimed to be a son of the testator. The subject about which I find it most difficult to accept her evidence is whether she has ever really ceased to believe that the plaintiff is her brother. Once, tangentially, in cross examination she referred to a fact or belief that he was adopted, but this was not generally put forward by her as the basis for a belief that he was not her brother. This belief was generally stated to be based upon his behaviour in paying little attention to his mother and particularly his departure in 1967 without saying goodbye. However, I find her visits to his home in Sicily over a period of years, even though she says that they were really to his wife; the fact that she allowed him to stay with her in Australia in 2000, even if reluctantly; and the terms of the letter in which she informed him of her mother's death were not really consistent with any firm belief that he was not her brother. She did not in terms tell him that he was not her brother even when relations had become very embittered by his making a claim on the testator's estate. I find it difficult to accept that she ceased to believe that he was her mother's son, however unhappy she became about his conduct. My conclusion is that her strong feelings concerning more recent events and her manner of giving evidence mean that her evidence generally must be approached with caution, but I am prepared to consider her evidence, along with other available evidence, as a possible version of facts, even in relation to matters in the later period. THE LAW 44 The contemporary law relating to applications for provision under the FPA is generally taken to be authoritatively stated by the High Court in the oft cited passage in Singer v Berghouse (1994) 181 CLR 201 at 208 - 209. There was cited to me as a correct summary of the law relevant to be applied in this case what I said in Dulhunty v Dewhirst [2005] NSWSC 607 as follows: "4 A majority of the High Court (Mason CJ, Deane and McHugh JJ) said in Singer v Berghouse (1994) 181 CLR 201 (at 208 - 209) that the court in determining an application for provision under the FPA is required by ss 7 and 9 to carry out a two stage process. The first stage requires a determination 'whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.' The second stage, which arises if that determination be made in favour of the applicant, is 'to decide what provision ought to be made out of the deceased's estate for the applicant.' The determination of the first stage 'calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc, appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.' The correct view of the first stage is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The second question involves an exercise of discretion in the accepted sense, although that discretion must, of course, be exercised judicially. That majority of the High Court disapproved the use in determining these questions of reference to the concepts of 'moral duty' or 'moral obligation', or even the use of those terms, since this might be thought to place a gloss upon the statute. Whilst there has been some debate as to whether or not that view was an obiter dictum only, the Court of Appeal has since determined, despite the eloquent dissent of Handley JA, that that expression of opinion ought be taken in this Court as the binding view of the High Court upon this subject matter: see Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24; Massingham v Massingham NSWCA 27 June 1996 unreported. The matter was revisited in the High Court in Vigolo v Bostin (2005) 79 ALJR 731. Gleeson CJ at [25] doubted that there was any vice in references to 'moral duty', provided it was regarded as a form of shorthand and not allowed to operate as a gloss upon the statute. Gummow and Hayne JJ in their joint judgment at [73] thought it 'better to forgo any convenience that these shorthand expressions may offer in favour of adherence to the relevant statutory language.' All three of those Judges, constituting a majority of the High Court, shared the view that Singer v Berghouse should be taken as an appropriate guide to the construction and operation of family provision legislation: see [5] and [73].

5 ……….. The appellate Courts have negatived that there is any 'special' test or approach to the process in the case of adult children, as opposed to other persons with a claim: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; Hunter v Hunter (1987) 8 NSWLR 573; Vigolo v Bostin supra at [26]. The time at which adequacy or inadequacy is to be judged is the time at which the Court is determining whether or not to make an order: see s 9(2). Section 12 of the FPA provides that where the Court makes an order for provision, it may specify the portions of the estate which shall bear the burden of the provision. By s 24 of the FPA, where the Court is satisfied that an order for provision ought be made and finds that property is held by a person as a result of a distribution from the estate, it may, subject to restrictions in ss 27 and 28, make an order specifying such distributed property as notional estate." 45 It has been confirmed in the High Court that the law as stated in Singer v Berghouse should be taken as providing an appropriate guide to the construction and operation of the family provision legislation: Vigolo v Bostin (2005) 79 ALJR 731 at [73] per Gummow and Hayne JJ. 46 The proper approach to a claim by an adult son received close consideration by Bryson J in Gorton v Parks supra. His Honour analysed closely dicta in The Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 of various Judges, and particularly of Dixon CJ, regarding both "the bare fact of paternity" and whether an adult son needed to show a special need to obtain provision. His Honour said at 7 - 8: "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: see Kirby P in Hunter [v Hunter (1987) 8 NSWLR 573] (at 580). Observations in Pontifical Society for the Propagation of the Faith v Scales should not now be cited as support for it in any sense or variation of it."

And at 9 - 10: "The observations which I last cited seem to involve a view of the moral obligations of a parent which differs I would think from the almost universal view of the Australian community; the view involved seems to have been that the moral obligations of a parent can be limited, and can possibly be escaped, by steadfastly maintained repudiation or evasion. Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgement of the obligations or of the child appears to me to be an idea from a distant age."

And at 10 -11: "The statement that Mr Scales was not in need wears the appearance of a conclusion of fact, but involved in it, in a way which it does not seem possible to analyse and state separately, is a concept of what is relevantly to be regarded as a need. Such a concept must have been involved, but was not stated, and it would seem that it would not be possible to state and establish such a concept by judicial authority without departing from or glossing the text of the legislation, which leaves it to the court to consider for each application the way in which the facts and circumstances special to that case operate and states the statutory tests in a very general way. The legislation does not proceed by endeavouring to spell out concepts of moral duty and of need; its method is to entrust to the court in relation to each case the application of the general test stated to particular facts. It would, it seems to me, be a departure from the method and from the meaning of the legislation if judicial authority established fixed concepts binding on courts of first instance of what in this context is a moral duty or is a need. This part of the judicial function must be exercised contemporaneously and is incapable of becoming entrenched in the system of rules of law established by past precedents. While there are of course likely to be some divergencies among the interpretations of individual judges, it appears to me that such divergencies are allowed for by the method of disposition of these applications which has been chosen by the legislation. Over a span of time measured in generations these interpretations can be expected to change, but in any one age the divergencies of interpretation are unlikely to be very wide or to produce gross anomalies, as there are not at any one time, in particular not at the present time wide divergencies in the concepts of what provision ought to be made, what provision is adequate, what are the moral duties of testators or what constitute needs, held among the judges who decide these cases at first instance and on appeal by way of re-hearing. These judges share with all members of the community access to the current moral beliefs of the community of which this legislation makes them the spokesmen: see Mahoney J (dissenting) in Kearns v Ellis (Court of Appeal, 5 December 1984, unreported at 7 - 8)." 47 As to the fact bare fact of parenthood, without detracting from what Bryson J said, it must remembered that Meagher JA had previously said in Hughes v Hughes NSWCA 6 June 1989 unreported, that the duty to make provision arose in the circumstances of 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." 48 In Walker v Walker NSWSC 17 May 1996 unreported, Young J, as his Honour then was, conducted a compendious view of the authorities relating estranged parents and children and said: "I do not consider that there is any purpose in analysing whose fault it was that the state of non-communication came into place. In family relationships, hurts are inflicted or suffered sometimes consciously, sometimes unconsciously. Sometimes a young child is brainwashed by a custodial parent to consider that the other parent has inflicted some harm which is all in the mind of the custodial parent. It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between. The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.

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. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally; see for instance Scales ' case at 19." 49 In Day v Perpetual Trustee Co Ltd [2001] NSWSC 394 at [27] Master Macready, as his Honour then was, adopted that formulation of Young as "sufficient and appropriate" to guide him in the decision of a similar case. I do the same. 50 I draw attention to the following recent cases dealing with distant relationships between children and parents. Where it has been decided that there was a sufficient foundation for provision, there has been a positive finding of at least some relationship which has existed between parent and child: see Day v Perpetual Trustee Co Ltd supra at [54], [55]; Dulhunty v Dewhirst supra at [31]. Or there has been a positive finding either that the parent had rejected or excluded the child or that the child had not rejected the parent: see Day at [53]; Farquharson v Grace [2005] NSWSC 87 at [46]. I should add that in In re Jennings, decd [1994] Ch 286 the English Court of Appeal rejected a claim based on the fact of paternity combined with non performance of a father's obligations to a child in infancy. Concerning this case, it should be noted both that the English legislation is slightly different in its terms from the FPA and that, during and since the 1990s, English and Australian courts have diverged on the appropriateness of the language of moral obligation. Nonetheless, it seems to me that this decision has some relevance in the present context. I should add that no claim on the basis put forward in Jennings was made in this case. FINDINGS ON CONTESTED FACTS 51 I find on the balance of probabilities that the plaintiff is the natural born son of Carmela Cipolla. Bearing in mind the coincidence of detail between the testator's account that she bore a son at Motta Camastra on 31 July 1940 who was named Carmelo Ranieri and the material recorded in the birth certificate produced by the plaintiff there can be virtually no doubt that the child the subject of that birth certificate was born to the testator. The case that is put forward for the defendant is that, in effect, the paperwork relating to Carmelo Ranieri became attached to some other boy in the confusion following the bombing of the orphanage at Messina in 1942 and that it is that other boy who is the plaintiff. In my view this proposition is speculative to the point of being fanciful. As I have said, I find that the plaintiff is the testator's natural son. I have already found in [7] above that he was not adopted by the Lo Surdos. 52 It is undisputed that the plaintiff was accepted by both the testator and the defendant as son and brother when he revealed himself in 1963 and that the commencement of contact with him was the source of great joy at the time to the testator and the defendant. However, things started to change even before he arrived in Australia. The testator withdrew her sponsorship of his migration before his arrival, for reasons which are not satisfactorily explained in the evidence. The sponsorship was continued by the defendant and her husband. However, the defendant's evidence is to the effect that there was little contact between mother and son during his residence in this country. There were two family occasions at which both were present and some visits by the testator during the three months the plaintiff lived in the defendant's home. But the defendant denies that there were subsequent visits by the plaintiff to her home or any to the testator's home or visits by either of them to the plaintiff's home. She says that there was virtually no contact between the testator and the plaintiff and that the usual form of contact between the plaintiff and herself was that she would call at the bakery where he worked on Saturdays and have a short conversation with him there. It was on such a visit that she was told by the proprietor that he and his family had left by boat for Italy. This was without any forewarning to the testator or the defendant and without his saying goodbye to either of them. I have already said that I am more inclined to accept the defendant's evidence concerning events in the more distant past. But on this subject matter I do not have to weigh her evidence up against any evidence of the plaintiff. As I have already stated, his affidavits contained no material concerning contact with the plaintiff during his residence in Australia. No evidence was ever given by him in reply to the defendant's version, which I have outlined above. In these circumstances I accept the defendant's version that there was virtually no contact between the testator and the plaintiff during his residence in Australia in the 1960s. 53 The evidence of contact between the testator and the plaintiff between his departure from Australia and his return in 2000 depends entirely on evidence of the plaintiff. The defendant denies any knowledge of the receipt of letters or telephone calls from the plaintiff by the testator, save for one telephone call at four in the morning, about which I infer the testator told the defendant. When during his 23 year absence this call was made was not stated. No letters from his mother during this period were produced by the plaintiff, nor any copies of letters written by him. The frequency of contact he stipulated was about twice a year, but he conceded in cross examination that it might have been less. Bearing in mind my findings concerning the plaintiff's credibility and the lack of any corroboration (save in the instance of one telephone call), I am unable to accept that the plaintiff contacted the testator with the frequency that he claimed, or that the contact between the plaintiff and the testator during those years was more than perfunctory and almost non existent. 54 The plaintiff relies heavily on his returning to Australia and resuming contact with his mother during a visit between April and June 2000. I have already mentioned in [21] above the conflict between the available evidence of the plaintiff and the defendant as to the plaintiff's visits to the testator in 2000. The plaintiff suggests that the testator discussed her property with him and made some promise of a testamentary gift. He said that she told him she had three houses, although other evidence shows that he received information to this effect as a result of investigations made on his behalf at the end of 2001. Again, except for corroboration from the defendant to the effect that he went to his mother's home on three occasions during the two months he was here, there is no corroboration of what visits he made to his mother or what passed between them. I have greater difficulty in accepting the defendant's evidence in relation to this time, as opposed to earlier times. It is also possible that the testator was saying one thing to the plaintiff and another to the defendant - this is a phenomenon not unknown as between parents and children. However, the suggestion by the plaintiff that there were manifestations of a warm relationship, or any relationship, between him and his mother during this two month period (whether as a continuation of an ongoing, if distant, relationship or as the reestablishment of a relationship which had been abandoned) again depends entirely on acceptance of the plaintiff's version of what occurred between them. Bearing in mind my view of the plaintiff's credibility and the lack of corroboration, I decline to find that any relationship of any substance was continued or reestablished between the plaintiff and the testator on this visit. In coming to this conclusion, I do not rely on the defendant's evidence, which I am not prepared to accept as reliable concerning this period. There is simply no acceptable evidence as to what occurred. It should also be borne in mind that the time spent by the plaintiff with the testator during his two month visit to this country was on any account very short. 55 I have referred already to the plaintiff's claim that he wrote to the testator twice after he returned to Sicily in 2000, his claim that he had copies of those letters and his failure to produce them. I am unable to find that any such letters were written. 56 The financial situation of the defendant is clear. She has considerable property but no income. Having lost the pension, she has failed to organise her financial affairs so that some of her assets are producing income for her. So far as her evidence goes, she seems to see no future but to progressively sell of properties and to live of the capital, which does not seem a prudent course. 57 Again, at least partly because of the difficulties with his credibility, it is difficult to assess the plaintiff's financial position. It would seem, at least from estimates of property values, that the cost of living in Sicily is less than it is in Australia. The evidence shows that the plaintiff is receiving or is entitled to a receive a pension of more than $600 per month. Although he has attained the age of 65 it would seem that he could top this up to some extent by casual work as a pastry chef, although there is no evidence on the impact of earnings on the entitlement to a pension. On the evidence, there is a public health scheme in Italy, which would provide him with necessary medical attention. On his account, his living conditions are much less salubrious than the defendant's but, again, this depends entirely on his word. 58 His property situation is quite unclear. Since he was not adopted, it would seem that he has no right to any part of the small property at Spadafora occupied by Pietro Lo Surdo. The matrimonial property of which he is half owner is not yet transferred to his wife and the proposition that she is entitled to the whole of it depends on his evidence, although evidence of his Italian lawyer would not have been hard to obtain. Most significantly, the evidence is most unclear about the Venetico property in which he has a two thirds share. Whilst there has been no development of this property in cooperation with the son who is the other co owner, it is not demonstrated that he could not realise his share of this property; he did, after all, bring a suit for judicial division against Pietro Lo Surdo. Since the property has potential for commercial use (including as a discotheque) and for development by erection of a three storey building eleven metres high, it would seem that it would have some considerable value. In the meantime, it provides some form of dwelling for him. 59 In short, whilst he suggests that his financial position is much worse than the plaintiff's, it is really left quite uncertain as to what that position is. Certainly he has means of sustenance and some provision for accommodation. The extent of his assets is quite uncertain. It is not established that he does not have, in the Venetico property at the least a substantial asset, which would afford the means of acquiring a modest dwelling or providing a contingency fund as claimed in these proceedings. CONCLUSIONS 60 As to Issue 1, I propose to defer consideration of the application for an extension of time until after I have considered the other three issues. 61 Issue 2, as to whether the plaintiff is the testator's son and therefore an eligible person, is disposed of by my finding in [51]. The plaintiff is an eligible person. 62 As to Issue 3, I have come to the conclusion that provision ought not be made for the plaintiff out of the testator's estate and that the plaintiff's claim in these proceedings should accordingly fail. 63 In coming to this conclusion I have made the assessment required in Singer v Berghouse supra. I have also taken fully into account what has been said by Bryson J in Gorton v Parks supra to the effect that the bare fact of parenthood is of very great importance. I have also taken into account that the courts have said that that bare fact does not of itself generate a right, but is to be considered in the context of the whole relationship between the parties. Here, the testator gave birth to the plaintiff and then felt constrained to give him up. She was overjoyed at the reestablishment of contact, but upon his coming to Australia in 1964 the relationship between them did not flourish. It does not seem to me that on the evidence this failure can be attributed to her rather than to him; on the exiguous evidence the relationship just did not work and really did not exist in any substantial way during the only period in his adulthood in which they lived in the same country for any protracted period. I have found that no real contact was maintained between them during the 23 years before he returned to Australia. Again, I am unable to find what passed between them and whether there was any establishment or reestablishment of a relationship during his return in the year 2000. 64 On the evidence, I have been unable to reach the conclusion that a relationship between the plaintiff and the testator during adult life really came into existence or subsisted in any real way. Nor am I able to come to any conclusion as to who out of mother and son was responsible for this situation. Nor am I able to come to any satisfactory conclusion as to the extent or value of his assets. This is a case where what is established is the bare fact of parenthood. Viewing that fact in all the circumstances of the case (including those mentioned in this paragraph), it does not seem to me that it would be expected by the community that the testator would have to make a benefaction to constitute proper or adequate provision for the plaintiff. It is my conclusion that the plaintiff's claim fails. 65 In view of this conclusion, it is not necessary to give further consideration to Issue 1 or Issue 4. Any question as to costs can be raised on delivery of this judgment

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.

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties

Cases Cited (10)

Cited By (6)