A. "No".
27 Mr Ellison tried to remedy this evidence in re-examination by suggesting that the plaintiff would have loved to have attended the funeral but he was loath to leave his wife and four children longer than he needed to. However, the concrete evidence is that there were visits to three stores at at least two shopping centres in the Dubbo area that day, and three ATM transactions involving withdrawal of a total of $260. There is no doubt that the plaintiff does involve himself in what might be called recreational gambling. It is unusual for a person to make three small ATM withdrawals on the one day and the answer "It would be very unlikely that that would be for betting activities alone" suggests that at least part of the monies were used for betting transactions. Accordingly, the probabilities are that the plaintiff's wife was not sick in bed on 29 November and that the plaintiff was not so concerned with his wife and children that it prevented him from spending time (we don't know how much time) betting.
28 I infer from this that the plaintiff's proffered excuse for not attending the funeral of the deceased was insincere and that this evidence reinforces other evidence that the relationship between the plaintiff and the deceased was not strong.
29 There is no doubt at all that between September 2003 and the deceased's death in November 2004 the plaintiff did not see the deceased at all, nor, it would appear, himself make any enquiries as to how the deceased was faring. He says that this was because his sisters told him that the deceased was in such a condition that he would not be able to recognise anybody and that visits were a waste of time. Whilst I accept this, I find it strange, if there was a close relationship, why there were not more enquiries as to health and at least the sending of a card or some contact. Further, one would expect there to have been some enquiries made by the plaintiff about his father notwithstanding any comments from his sisters that they would keep him informed.
30 Accordingly, the picture painted by the evidence, which I accept, is that the plaintiff had no contact with his father for the first 36 years of his life. Thereafter there were 11 telephone calls in eight years. There was no exchange of presents at birthdays or Christmas, not even an exchange of cards. The plaintiff only ever saw the deceased on two days in 1995. He did not see the deceased at all nor make any contact with him for the last two years of the deceased's life and he never attended the funeral. Furthermore, he appears to have given an excuse for not attending the funeral which was not genuine.
31 In saying what I have just said I do not want it to be thought for a moment that I do not appreciate the difficulties of a man with four small children living in Dubbo making contact with his father who lives in Warilla in the Illawarra area. I realise that it would not be easy, indeed it may be impossible to make such a visit within one day unless one had the resources to use the plane from Dubbo and hire a car or use the train from Sydney. However, one would expect that in a period of eight years on at least one occasion the plaintiff would have sought to make personal contact with his father if there was a close relationship between them and one also would have expected them to have exchanged Christmas and birthday cards and for the plaintiff to have made more enquiries as to his father's health. It is significant that none of this happened.
32 During addresses a proposition was addressed as to whether it is sufficient to base a claim for provision under the Act on the basis of biological paternity.
33 Mr Wilson cited a decision that I had given in Walker v Walker, 17 May 1996, unreported. I analysed the leading decisions up to 1996 where the key factor in the plaintiff's case under the Family Provision Act or its predecessor was the bare fact of paternity. In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, 18, Dixon CJ appears to have considered that the bare fact of paternity and no other mutual relation would be insufficient to justify depriving a testator of his complete freedom of testamentary disposition.
34 In Gorton v Parks (1989) 17 NSWLR 1, 9-10, Bryson J at 10 stated that he considered that Dixon CJ's view differs "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 a very great importance in morality."
35 Mr Ellison relied on a decision of Bryson JA given 17 years later, a decision with which Santow and McColl JJA agreed in Wheatley v Wheatley [2006] NSWCA 262. His Honour, however, did not refer to "bare paternity" in that case. It was a case involving an adult son who had been disinherited by his mother because of the plaintiff's alleged conduct between 17 and 22 years of age.
36 I believe that the fact of disinheritance means that the case is not as good a guide to the present case as Mr Ellison would suggest. The kernel of the judgment of Bryson JA is that a parent cannot unilaterally disinherit a child. It is noteworthy that he approved what McLaughlin AsJ had said, "It should be emphasised that an order for provision is not made as a reward for services or good character on the part of an applicant. Neither is such an order withheld as punishment for perceived bad conduct on the part of an applicant."
37 Hamilton J considered the question of "bare paternity" in Lo Surdo v The Public Trustee [2005] NSWSC 1186. His Honour dismissed a claim by a child who was given up by the testator shortly after he was born but with whom she made contact when he was 24. His Honour said at [63] that he took into account what Bryson J said in Gorton v Parks "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. … 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." His Honour dismissed the application.
38 In Walker v Walker I said that it was wrong to say that the fact of paternity and the abrogation of the testator's duty to a child means that there must be an order for the plaintiff. I said, "The fact of paternity is something to take into account, but it must be taken into account with all the other facts and circumstances of the case and the question asked, would the community think in all the circumstances that a wise and just testator should have made provision for his child?" I am still of the view that that is the key question.
39 Mr Ellison referred me to a series of decisions of Associate Justices where, at least on the surface, quite generous orders appear to have been made in favour of biological children with whom the testator had little recent contact. I think that Mr Ellison put these to me as establishing some sort of tariff by the judicial officers who are most experienced in deciding cases under this Act. There is some merit in that suggestion but it must always be remembered that each case is different, as Mr Wilson submitted in his reply. The cases to which Mr Ellison referred were Hunt v Delaney [2005] NSWSC 764 (Macready AsJ); Boniecki v Brown [2006] NSWSC 306 (McLaughlin AsJ); McQuhae v Abel [2003] NSWSC 711; Mulhall v Permanent Trustee [2004] NSWSC 365 (Master Macready) and Eather v Maher [2006] NSWSC 746 (Macready AsJ).
40 The most that can be gleaned from cases such as the ones I have listed is that quite long periods of non contact are not necessarily fatal to an adult child receiving an order under the Family Provision Act 1982 in the present climate.
41 As one must these days, I have approached the matter as prescribed in Singer v Berghouse (1994) 181 CLR 201. I accordingly need to carry out a two stage process, first, to determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life, and the second, which only arises if a favourable determination is made to the first stage, is what provision is appropriate.
42 I have difficulty with finding for the plaintiff at the first stage. It seems to me that the plaintiff has established very little more than the mere fact of paternity. He has exaggerated his case. On the facts, he did not have a close relationship with his father at any time. I do not consider 11 phone calls in eight years with no exchange of presents or cards for birthdays or Christmas, and not even attending the funeral, as showing that there was any such relationship. I know that the plaintiff says that his mother talked to the deceased often about the plaintiff, but that information must be second hand and it is no substitute for the plaintiff making his own personal contact.
43 Furthermore, the plaintiff, although he is not a wealthy man by any means, is in a comfortable state of life. He and his wife both earn good money. He has his own house and few debts. However, he has a sizable mortgage on his house and he has four young children.
44 When considering the first stage, a court needs to bear in mind that the right or freedom of disposing of one's property on one's death is a right enjoyed by citizens since antiquity in the Common Law World. That freedom is too important to be disregarded in proceedings under the Family Provision Act 1982. It is only to be interfered with to the extent necessary to comply with the testator's obligations to eligible persons under that Act.
45 The question thus is whether an able bodied adult son earning a better than average income who only had slight contact with the testator, who was left nothing under his father's will was left inadequate provision.
46 A wise and just testator, to my mind, would have weighed up the competing claims of his daughters and his son. The daughters had lived with the deceased all their childhood lives and had been in contact with him regularly up until his last days and two of the daughters had cared for him during the period of his instability. It is true that there was a period when the deceased was charged with a sex crime against a grand-daughter (of which charge he appears to have been acquitted), that relations cooled, but the fact that the deceased never changed his will, leaving his estate to his daughters, shows that that is not a major matter for me to take into account.
47 The daughters, apart from Mrs Day, are again not wealthy but not poor.
48 In my view the testator's duty to his daughters to provide for them in all the circumstances was much higher than his obligation to provide for his son.
49 As the High Court judges said in Singer v Berghouse at p 210, that question is to be judged 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 … bounty."
50 Although my mind has wavered, I consider that the question should be answered "No", in view of the factors I have discussed above.
51 Were I to turn to the second stage, the plaintiff's only real need is to reduce the size of his mortgage of $280,000. That is not a pressing need, but certainly if he was relieved of that debt to a degree, then the probabilities are that he would be able to have more free cash. However, whilst he has not been shown to be a chronic gambler, it is a significant recreation of the plaintiff, and it is no guarantee that extra money will necessarily go towards maintaining his family.
52 Had I had to consider the second stage I would have thought that each daughter was entitled to seven shares of the residue as against two for the plaintiff and thus the order would have been for a legacy of about $104,500.
53 At the commencement of the hearing, further defendants were added on the basis that, if need be, there might have to be an adjournment to protect their interests. In the event it is unnecessary to consider those defendants further.
54 I am most concerned, however, with the level of costs in this case. The case only lasted a day and a bit and the only complicating factor was that early on the question of paternity was disputed by the testator's daughters. The affidavits of the solicitors show that the plaintiff's costs are estimated to be $49,000 and the first defendant's $61,600. The costs include a 3 hour failed mediation. The plaintiff's bill includes counsel's fees of $20,000; the first defendant's counsels' fees are $39,400. One counsel, a senior counsel, was retained by the plaintiff. Two counsel, a senior and a junior by the first defendant.
55 These costs seem excessive. I use the word "seem" advisedly because I just do not know what work was required of counsel and solicitors by their client. However, the plaintiff was represented by solicitors who have a large practice in this sort of matter and so should be able to produce good documentary evidence efficiently. One would expect their costs to be lower than other solicitors who might not have that expertise, but this does not appear to be the case. What really concerns me is the very large amount of counsels' fees for what essentially, for the litigants, was a relatively straightforward case, though for the Judge it was a borderline case which was hard to decide.
56 I am not in a position to make any further comment about fees. No doubt if the matter goes to a costs assessor he or she will consider whether it was necessary for either side to brief senior counsel in this sort of matter, and whether the fees estimated are fees that ought to be allowed to be paid out of the estate. The costs assessor should be very careful not necessarily to allow any uplift fees in cases of this nature.
57 The Judges of this Division are very conscious of the fact that litigation under the Family Provision Act is often between persons who have limited resources. They are also aware that it is only too easy when costs are to be taken out of an estate or fund, for insufficient watch to be made on costs control and the Judges do not intend to encourage this.
58 Thus, in the upshot I make an order that the proceedings be dismissed. There seems to be no reason why costs should not follow the event. Thus the proceedings are dismissed with costs. The exhibits may be returned.