McGrath & Duncan v Hartley, McCully v Hartley

Turnbull Hill Lawyers for McGrath & Duncan SOLICITORS : Golottas Solicitors for McCully Kilmurray Lawyers for defendant

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

2008/280812 Mark Robert McGrath & Christine Janine Duncan v Rebecca Hartley (Estate of the late John Francis McGrath) 2009/288919 Helena McCully v Rebecca Hartley (Estate of the late John Francis McGrath)

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late John Francis McGrath who died on 10 March 2008 aged 65 years. The deceased had been married and was divorced from his wife. She is aware of the proceedings but does not make a claim. She had a property settlement with the deceased at the time of their divorce. 2 In matter 2009/288919 the plaintiff, Helena McCully, brings a claim against the estate. She was living with the deceased at the date of his death in a de facto relationship. 3 Prior to his marriage the deceased had a child, Rebecca Michelle Hartley, who is the defendant in these proceedings. In matter 2008/280812 the plaintiffs, Mark Robert McGrath and Christine Janine Duncan are the stepchildren of the deceased. Mark and Christine are the children of his ex wife from a previous marriage. 4 I ordered that both proceedings are to be heard together with the evidence in each proceeding being evidence in the other proceeding. Will of the deceased 5 The deceased made his will on 11 June 2004 under which the defendant was appointed executrix. The deceased left three properties to his daughter, Rebecca, and provided that any mortgage on those properties be paid out of the residue in his estate. In the events which have happened the balance of residue passes to the plaintiff, Helena McCully. Assets in the estate 6 Real estate in deceased's name Terrigal 450,000 460,000 Ulmarra 320,000 360,000 Rockhampton 130,000 140,000 $900,000 $960,000

Cash includes solicitors trust account 38,547 Shares includes time shares 104,355 Car 4,000 Furniture and effects 10,000 $156,902

Liabilities Capital gains tax 46,862 Income tax 8,257 Sales costs 39,804 Accounting 3,000 Further administration costs 5,500 Costs of proceedings 77,721 Mark and Christine 56,044 Helena 165,500 Rebecca $402,688

7 Assuming there is a liability for the plaintiffs' costs the balance of the estate, after sale of the estate properties, will be between $654,214 and $714,214. 8 The defendant's costs include administration costs estimated at 25 per cent of the figure of $146,319. 9 The deceased and the plaintiff, Helena, owned property as joint tenants as follows: Matrimonial home, Rouse Hill 530,000 Mortgage 171,564 358,436 Mercer Street, Castle Hill 440,000 Mortgage 376,526 63,474 Time share 1,000 Net Assets $422,010

10 The properties have now passed to Helena by survivorship. Chronology 11 The deceased was born in 1943. The defendant, the deceased's daughter, Rebecca, was born in September 1967. In December 1971 Jeannine Duncan and the deceased married. Jeannine's children Mark, then aged 7 years and Christine then aged 3 years lived with Jeannine and the deceased. Rebecca was not part of the household as she was living with her mother. In November 1980 the deceased adopted Christine and Mark. In 1984 the deceased separated from Jeannine Duncan 12 Helena McCully was born in October 1950 and in 1971 she married her first husband. In 1989 Helena McCully separated from her husband. 13 In 1993 the deceased purchased a property in Alden Grove, Oakhurst for $109,000, with a mortgage of $87,000. 14 In May 1994 Helena McCully purchased another property at Alden Grove, Oakhurst next door to the deceased's for $106,000 with a mortgage of $70,000. 15 At that time when Helena McCully met the deceased she was employed as a hairdresser. The deceased was then a teacher and principal at Blacktown Primary School. 16 In January 1995 Helena McCully and the deceased commenced a de facto relationship.

17 In March 1995 the deceased purchased a unit in Kingswood for $144,350 with a mortgage from Advance Bank of $141,600. In November 2000 he purchased a unit in Rockhampton, Queensland for $105,000 with a mortgage of $115,030. 18 In September 2001 Helena McCully and the deceased purchased the Nora Court property at Rouse Hill for $362,500 with a mortgage of $380,000 from St George Bank. The Nora Court property became their matrimonial home. 19 In September 2001 the deceased sold his Alden Grove property for $225,000 and discharged the mortgage on it of $68,000. He paid $79,430.49 of the mortgage on the Rouse Hill property and $55,169.90 off the mortgage on the Kingsgrove property 20 In December 2002 the deceased was diagnosed with a blocked artery and he retired from work in January 2003. In May 2003 the deceased was diagnosed with stomach cancer and Helena McCully nursed him during his illness. In October 2003 the deceased was admitted to Westmead Hospital to remove adhesions to his bowel.

21 In November 2003 the deceased's Kingswood property was sold for $270,000 with the proceeds disbursed as to $86,680 to discharge the mortgage, $122,693 paid towards the Rouse Hill mortgage and $95,000 put on term deposit. The deceased also borrowed a further $49,680 as an investment loan to buy shares.

22 In January 2004 the deceased was admitted to hospital when more adhesions to his bowel was removed.

23 In February 2004 Helena McCully received an inheritance of $18,000 which she put into a joint account. In May 2004 the deceased and Helena purchased a unit at Mercer Street, Castle Hill for $410,000 with a mortgage of $175,000. The debt over the three properties at that stage was $625,000.

24 The deceased made his will on 11 June 2004. 25 In November 2004 the deceased's father, Frank McGrath, died leaving his property at Barnhill Road, Terrigal to the deceased.

26 In August 2006 the deceased underwent surgery for an obstructed bowel when a tumour was discovered and in October 2007 he started chemotherapy.

27 In February 2008 the deceased was admitted to Westmead Hospital. Helena McCully ceased her employment and spent each day at hospital with him.

28 In early March 2008 the deceased was discharged from hospital and he died on 10 March 2008.

29 Probate was granted to Rebecca Hartley on 4 June 2008.

30 On 23 September 2008 Christine Duncan and Mark McGrath filed the Summons within time. On 18 April 2009 Helena McCully filed her Summons within time. Eligibility 31 Helena McCully is an eligible person. She had been the deceased's de facto partner for 13 years at the date of his death. 32 Christine and Mark are eligible persons. They were part of the deceased's household and partly dependent upon him for support and accommodation. 33 Under s 9(1) of the Family Provision Act it is necessary that the court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 34 In Churton v Christian (1988) 13 NSWLR 241, the court approved this statement. Priestley JA at 252, after setting out and approving the statement, added: "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."

35 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter (Court of Appeal, 13 November 1998, unreported). Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success, gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

36 Given the role that the deceased played as a stepfather to Mark and Christine there are factors warranting the making of the application on the traditional basis. I will now consider whether they have prospects of success. 37 In applications under the 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 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." Helena McCully 38 Helena is 59 years of age and will turn in 60 in October 2010. She has no dependents. Since June 2008 Helena has been working as a hairdresser two days per week earning $324.80 per week gross. She receives superannuation payments of $634.30 per week from the deceased's superannuation. She receives rent from two properties bringing her gross income to $1,649.10 per week. She lives in the former matrimonial home. 39 Helena's assets and liabilities are as follows: Asset Assets Mortgage/Debt Property at Alden Grove, Oakhurst 260,000 67,823.73 Property at Nora Court, Rouse Hill 450,000 174,564.75 Property at Mercer Street, Castle Hill 370,000 376,526.30 1999 Ford 2,000 ANZ Bank Account 4527.81 Superannuation 45,312.22 Telstra Shares 8,680 Debt to daughter Kylie 7,000 Total 1,140,520.03 621,914.78 Net Asset $518,605.25

40 Helena has had difficulty working full time due to the limited use of her hands and wrists, and problems with her back. She wishes to retire when she is 60 years in October 2010. She proposes to sell the Mercer Street, Castle Hill property and is considering the sale of the Alden Grove, Oakhurst property. Depending on the sale of these properties she will have less income and a substantially smaller mortgage liability. 41 Helena and the deceased had a happy relationship and it is plain that Helena was of great assistance to the deceased from 2003 until his death in 2008. Apart from deciding what to do in respect of the sale of her properties to reduce her mortgage debt she would like to do some repairs to her property at Rouse Hill at a cost of $52,846. She needs dental work on her teeth at a cost of $13,450. 42 Plainly, Helena has solely contributed to the equity in her property at Alden Grove. The matrimonial house at Rouse Hill was purchased with borrowed funds. In 2001 to 2003 the deceased paid off from his own resources $202,123 reducing the mortgage to $177,877. The mortgage has reduced to $174,564 probably as a result in part of Helena's contributions of her wages and the weekly rent from the Alden Grove property into the joint account that she and the deceased maintained. 43 After the deceased retired in 2002 the deceased received an income of $1,357.21. Helena's total gross income was then $812.96. The Castle Hill property was purchased in May 2004 for $410,000 and only an additional $175,000 was borrowed to complete the purchase. Most of the remaining funds must have come from the deceased, as Helena did not suggest she provided any further funds except for an inheritance of $18,000 she had received and contributed to the joint account a few months before the Castle Hill property was purchased. 44 If Helena were to sell the Castle Hill and Alden Grove properties and pay out the mortgages she would own her home at Rouse Hill debt free. She would have cash resources resulting from the sale of $73,613. She would still have her Telstra shares and superannuation. Her weekly income while she still worked after the sale of the properties would be $959.10 per week and when she stops work her income will simply consist of her superannuation payment of $634.30 per week plus any interest on her invested funds. Mark McGrath 45 Mark is 46 years of age and is not married. He lives with his partner, Philip Ainsworth and in 2007 they undertook a commitment ceremony. Mark is employed by the Department of Trade and Economic Development in South Australia as an Information Technology and Database Support Officer. He has a net income of $49,160 per annum. Phillip is employed by Woolworths as Store Manager and his net income is $48,639 per annum. 46 Mark lives in Phillip's home worth $350,000. They have two motor vehicles. Philip has shares in Woolworths valued at $131,700. They both have superannuation entitlements totalling $227,620. They have total assets of $850,170 and their liabilities of $231,545, mainly comprises the mortgage over Philip's property. 47 Mark suffered from a range of health problems which fortunately are mainly in the past. He suffers from neck pain and stiffness which is helped by chiropractic treatment. In 2002 he had a motorcycle accident in which he sustained two breaks to his leg which required surgery. He estimates that he has recovered 95 per cent of the use of his leg. From time to time he suffers from depression and anxiety although was condition has improved in recent years. 48 After the family break up in 1984 Mark had very little contact with the deceased. In 1988 he attended the funeral of the deceased's mother when he and the deceased had a polite conversation. From 1984 and 2004 there was one other contact that took place in 1995 when Mark needed the deceased's signature on a vehicle transfer document. Mark had no further contact with the deceased until May 2004 when the deceased visited Mark in hospital as a result of his motorcycle accident. From that time there was occasional telephone contact. 49 Mark wrote a letter to the deceased shortly before his death in which he thanked him for his upbringing and the things the deceased had taught him. Mark's intention was "to provide some closure to an open wound" probably to do with the deceased's harsh treatment of him as a disciplinarian. He expressed forgiveness and also explained why he had not expressed his thoughts before. Christine Duncan 50 Christine is 42 years of age, she is married and has three children, Bianca aged 18 years, Tiffany aged 16 years and James aged 15 years. She works as a casual dance teacher. Her husband, David, has been discharged from the NSW Police Force and receives a pension as result of an injury he sustained while on duty in 2000. The pension is indexed and their combined income from these two sources together with Christine's additional income from occasional dance tuition and her Centrelink payments amount to $1,437.35 per week. 51 Christine and her husband both receive rent from their investment properties. Christine receives rent from her property in Tasmania of $9,620 per annum and her husband receives rent from his two properties at Mardi and Surfers Paradise of $33,000 per annum. Their total outgoings for their three investment properties are $53,277.61 or $1,024.57 per week. They make a loss on the investment properties. 52 Christine's assets are as follows. Christine and her husband own their home at Glenning Valley which is in joint names, worth $350,000 and is subject to a mortgage debt of $95,239. Christine's investment property in Tasmania is worth $170,000 with a mortgage debt of $116,800. David's property at Mardi is worth $280,000 with a mortgage debt of $173,542.53 and his property at Surfers Paradise is worth $280,000 with a mortgage debt of $219,797.38. They have furniture and home contents worth approximately $40,000 and two cars worth $9,500, modest savings of $22,000 and insignificant superannuation. 53 It would appear that if they sold the investment properties they would discharge all their mortgage debts and the line of credit over the Glenning Valley property and have a cash surplus of $112,670. 54 After the sale of the investment properties Christine and David's income would be in order of $1,487.35 per week. 55 Although he is presently unemployed David is looking for work. No doubt their situation will improve in this respect. The sale of the investment properties as I have mentioned would enable their credit card debts in the order of $22,000 to be paid. 56 One of the difficult matters in this case is the nature of the relationship between Christine and the deceased. She was less than two years old when her biological father, Robert Prince, died in a car accident in December 1969. In 1971 her mother, Jeannine Duncan, married the deceased and Christine and her brother, Mark McGrath, were raised by the deceased as their father. The deceased adopted them in 1980. 57 Jeannine Duncan and the deceased separated in 1984. Christine lived with her mother and between 1989 and 2004 she had little contact with the deceased. 58 Christine gave evidence that the deceased was a disciplinarian and violent towards her with bare handed smacking and whipping with a cane. She also gave evidence that her father had made inappropriate sexual advances towards her which was confronting for a young child. The divorce between her parents was long and protracted, and finally ended in November 1987. At a family funeral in 1988 at which the deceased was present he said to Christine, "I'd like to see more of you in the future". In February 1989 the deceased sent a card to Christine for her 21st birthday but despite the deceased's attempts at a rapprochement Christine still avoided any contact with the deceased. 59 In late 2003 when Christine became aware that her father was suffering from cancer and after thinking about it for several weeks she decided to make contact with the deceased. In 2004 she made contact with the deceased and he visited her at her home. 60 From 2004 until the deceased's death in March 2008 Christine said she saw her father on seven occasions. She also says she had many telephone conversations when they sometimes talked for long periods. Given the timing and the fact that this evidence was flatly contradicted by Helena McGrath who was living almost full time in the house and looking after the deceased, there must be some doubt about the extent of the contact. 61 On 13 February 2008, coincidentally, Christine also wrote a letter to the deceased, at a time when the deceased was very ill. It was unbeknown to her or Mark that they each wrote a letter to the deceased at around the same time. Christine thanked him for the things he had done for her and bringing her up as a child. She expressed her love for him. Christine also expressed forgiveness for the difficult times she had experienced as a child. Christine's intention was "to give a dying man some peace of mind and my forgiveness". As an adult she could understand how difficult it was for the deceased to become a father to children who were not his own. Rebecca Hartley 62 Rebecca is aged 43 years. She is single and she supports herself, her two children and the children of her late sister and more recently her granddaughter. She learnt that the deceased was her biological father at the age of 13 following the death of her stepfather. She met the deceased shortly afterwards when he was still married to Jeannine Duncan. Following the separation of the deceased and Jeannine Duncan in 1984, Rebecca developed a close relationship with the deceased until his death. 63 Rebecca is divorced from her husband with whom she had two children, Bianca and Jacob. When her sister died she assumed the role of parent for her sister's two children, Kathryn and David. 64 Rebecca's daughter, Bianca, is 20 years of age and suffers from Obsessive Compulsive Disorder. She has given birth to a child, Ruby, who lives with Rebecca. Bianca is in receipt of Centrelink payments and assists Rebecca in the household tasks. 65 Rebecca's son, Jacob, is 18 years of age and completed his HSC last year. He has enrolled at Newcastle TAFE to obtain a personal trainers certificate and hopes to gain entry into a Bachelor of Sports Science course to become a PE teacher. Jacob's health is not perfect but he manages his problems. 66 Kathryn is the daughter of Rebecca's sister and is 18 years of age and suffers from Asperger's Syndrome having been diagnosed in February 2003. Dr Kumar describes her state of health and states she will never be fully employed, will always be dependent on Rebecca and will have to live with her indefinitely. 67 David is the son of Rebecca's sister and is aged 14 years. He is in Year 9 at school. At the present time he is dependent on Rebecca. 68 Rebecca lives in rented accommodation with the four children and the baby. The accommodation is very cramped and the garage has been converted into a bedroom. She has net assets of approximately $32,000 and superannuation of approximately $33,000. Her motor vehicle, valued at $20,000 is subject to a payout of approximately $38,687. 69 Rebecca never lived with the deceased and it is clear that once she discovered her father at the age of 13 she maintained continuous contact with him from that time until he died. As is clear from the terms of the deceased's will he appreciated his contact with Rebecca. 70 Rebecca's interest in the estate of the deceased will allow her situation in life to improve. Discussion 71 In this estate the defendant's costs will mean that there is no residue and there is nothing for Helena McCully to take other than, of course, the jointly held properties which are now in her name. Rebecca stands to inherit the remaining funds in the estate once they are realised by the sale of the properties. 72 It is of course necessary to consider how the three plaintiffs say they have been left without adequate and proper provision for their maintenance, education and advancement in life.

73 Helena McCully submits that she should receive a legacy in the sum of $300,000 to enable her to have sufficient funds to secure herself in her retirement 74 Christine seeks a legacy of $100,000 to provide a capital base and a nest egg together with funding for future medical expenses, the purchase of a car and discharge of her credit card debts. 75 Mark seeks a legacy of $90,000 to replace his old motor vehicle, carry out repairs to Philip's home and enrol in some courses. 76 The claims of Christine and Mark have problems which concern the long break in the relationship they had with the deceased. However this can be explained by the deceased's unduly harsh treatment of them as young children under his care and his violent treatment of their mother during their marriage. The divorce had a great emotional affect on Mark and Christine, they both suffered severe depression requiring professional help.

77 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." 78 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA, with whom Meagher JA agreed, 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 a 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." 79 Meagher JA had previously expressed a view in Hughes v Hughes (Court of Appeal, 6 June 1989, unreported) in 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 ten 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) 80 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

81 In Benney v Jones, Mahoney JA at 560-561 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." 82 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. …" 83 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 (Scales' case). Scales' case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said: "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." 84 In Gorton v Parks Bryson J sought to distinguish Scales' case at 10. 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 large 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." 85 Bryson J in any event distinguished Scales' case on the basis that on the facts before him at 11-12: "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. ..." 86 In Walker v Walker (Supreme Court of New South Wales, 17 May 1996, unreported) Young J reviewed the question of moral duty. His Honour reviewed Gorton v Parks, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse as follows at 26: "In Singer's case, a widow who had been married less than one year to a sixty-eight 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 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 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." 87 Young J also observed at 27: "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."

88 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. 89 In Walker v Walker Young J noted at 30-31: "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 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. ..."

90 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." 91 This view was reinforced recently in Nicholls v Hall [2007] NSWCA 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 that 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] 2 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.

47 We accept there is a suggestion to the contrary in Hughes v Hughes (NSWCA 6 June 1989) where Meagher JA (with whom Hope JA and Samuels JA concurred) said this: 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 ten years after she left school and in the two periods between her early trips and in her professed and continued willingness to be of whatever assistance to her father she could be.

48 We do not understand an applicant to have a "right" in any clear sense, in any event. It is only if an applicant satisfies the Court that he or she has been left without adequate provision for proper maintenance, and satisfies the Court that provision ought to be made, that it then can be said, in a loose sense, that the applicant has a right to an order. However, that right must depend, not merely on matters concerning the relationship between an applicant and the deceased, but on matters concerning the other three elements that we referred to, namely the applicant's needs, the nature and extent of the deceased's estate, and other legitimate claims. We do not think the passage from Hughes v Hughes should be read as meaning that entitlement can never be established if the only factor that appears in the relationship aspect of the claim is the bare fact of parenthood." 92 I accept Christine's evidence that she had good reason not to contact the deceased and it was to her credit that in due course she was able to put that behind her and make contact with the deceased. 93 Mark seems to have had less reason to distance himself from the deceased but later in life he also endeavoured to have further contact with the deceased. 94 As far as Christine is concerned I note this difference which makes her case somewhat different from Mark's case. However, I would not have thought that the conduct was such as to disentitle them from any claim but the relevant faults and lack of interest need to be considered along with the other aspects of whether it is appropriate to make provision for them. 95 Central to the problem in this case is Rebecca's need to achieve financial stability by purchasing a suitable property with her inheritance as she continues as a single mother to look after five children with no assistance from her former husband. 96 Rebecca wishes to purchase a four to six bedroom home in the Merewether or Hamilton area where she now resides between $800,000 and $900,000. She can borrow $337,000 and the stamp duty and costs on the purchase would be in the order of $34,000. 97 The evidence is that the neighbouring suburbs close to where Rebecca lives, namely, Charlestown, New Lampton and Hamilton South, houses can be purchased in a range of $470,000 to $550,000. 98 Rebecca's reasons for wishing to remain in Merewether or Hamilton and which she maintained in cross-examination were as follows: She has lived with the children in the area since 2003; She wants her children be in a secure and safe environment when away; Her children have grown up in the Merewether area where they have made lots of friends. She wants to remain in the Merewether/Hamilton area so the children can maintain their friendships as it is an area that enables the children to walk to most things they are involved in without Rebecca providing them with transport, especially when she is absent from home with her work; Jacob has soccer training twice weekly at National Park and he plays indoor soccer at Howzat Indoor Sports Centre in Cooks Hill. Both of these venues are able to be accessed by him by riding his bike or walking. He can also be accompanied by his friends; David attends Newcastle High School which is located in Parkway Avenue, Hamilton, bordering with Merewether. David rides his bike to school every day with his friends. David also does bike riding daily in Glenrock Lagoon which is in Merewether; The TAFE college that Kathryn and Jacob now attend is located at Tighes Hill which both of them can get to by a short bus ride, or bike; The family's doctor, Dr Kumar is in Merewether and within walking distance of their current home, a matter of some significance in light of the children's ongoing health issues; Rebecca is very comfortable leaving her family in this area when she travels away for work as they have friends and families nearby who will watch out for them and ensures that they will not struggle to get to school, work, shops or other venues they need to attend. They can have their independence in a safe environment; Her existing rented home is very cramped. Jacob, her eldest son, has had to convert the garage of the home into his bedroom. The bedrooms in the home are very small and not big enough to have two beds. Kathryn's room has only her bed and a tallboy cupboard. David's room has a bed and a study desk and a small bedside table. Bianca's room has her bed and Ruby's cot and a bookshelf which holds Ruby's clothes. This rental home has an open plan design so that the living, dining, kitchen and rumpus are all combined thus not allowing any space for privacy. There is virtually no outside yard area. The two teenage sons play soccer and Rebecca would like a home that has sufficient yard area so that they can kick a ball around as they were able to do in her previous home. Additionally, Ruby is now walking and an area for a sandbox and some swings would be desirable.

99 It was submitted that had Rebecca been a plaintiff in the case adequate provision for her proper maintenance and advancement in life would require that she receive the cost of acquiring a home in the area of her choice. 100 The submission may have some force if the estate was larger. Unfortunately the estate is very limited and Helena McCully has a claim which is substantial having regard to the 13 years she lived with the deceased and the assistance she gave him. Although after selling the two properties she will obtain an unencumbered title to the matrimonial home at Rouse Hill and some cash she needs further funds of $100,000 which I think would be appropriate. 101 Mark and Christine claims rank well after Helena McCully's claim who was the deceased's partner. 102 Although Mark and Christine did not see the deceased in the latter part of their life with the same consistency as Rebecca, they did form part of his household for most of their childhood. In contrast Rebecca never lived with her father and it was not until later in her life when she was 13 years of age that she had contact with him from then up until his death. 103 I am of the view that there should be a modest legacy to Mark of $50,000 and a legacy to Christine of $75,000. There should be a legacy to Helena of $100,000. The balance of the estate, after allowing for these legacies, should pass to Rebecca. 104 I make the following orders:

3. Christine Janine Duncan receive a legacy of $75,000.

4. That in lieu of the provision in clauses 5 and 6 of the will of the deceased Rebecca Hartley receive the residue of the estate.

5. The plaintiffs' costs on the ordinary basis and the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased.

6. Interest is to run on the legacies if they are not paid within three months from today's date and from that date at the rate provided for by the Probate and Administration Act 1898.

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