Nicholls v. Hall & Ors [2007] NSWCA 356

Court of Appeal (NSW)|2007-10-31|Before: Mason P, Hodgson JA, McColl JA, Young CJ, Coll JA

CITATION: Nicholls v. Hall & Ors [2007] NSWCA 356

JUDGMENT OF: Mason P at 1; Hodgson JA at 1; McColl JA at 1

DECISION: 1. Appeal allowed. 2. Orders below set aside, and in lieu thereof order that the estate of the deceased be divided between the daughters of the deceased and the appellant in the proportions of two-sevenths to each daughter and one-seventh to the appellant. 3. Order that the costs of the respondents below and on appeal be paid out of the estate of the deceased on an indemnity basis. 4. Order that the costs of the appellant of the proceedings below be paid out of the estate of the deceased. 5. Order that the respondents pay the appellant's costs of the appeal, and have a certificate under the Suitors' Fund Act if otherwise entitled, and that they be reimbursed for these costs from the estate of the deceased.

CATCHWORDS: SUCCESSION - FAMILY PROVISION AND MAINTENANCE - Moral obligation or moral claim - Inadequate provision for proper maintenance - What is "adequate" and what is "proper" to be assessed having regard to objective circumstances, not just circumstances known to deceased - Relevance of "bare paternity".

Fox v. Percy (2003) 214 CLR 118 Gorton v. Parks (1989) 17 NSWLR 1 CASES CITED: Hughes v. Hughes (NSWCA 6 June 1989) Kleinig v. Neal (No.2) [1981] 2 NSWLR 532 Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 CLR 9 Singer v. Berghouse (No.2) (1994) 181 CLR 201

David Norman Nicholls - appellant/applicant Deborah Anne Hall - 1st respondent/opponent Gregory Robert Hall - 2nd respondent/opponent PARTIES: Donna Louise Robinson - 3rd respondent/opponent Gregory James Robinson - 4th respondent/opponent Deanne Elizabeth Day - 5th respondent/opponent Colin William Day - 6th respondent/opponent

COUNSEL: Mr. L. Ellison SC for the appellant Mr. J. Wilson SC with Mr. D. Liebhold for respondents

SOLICITORS: Turnbull Hill Lawyers, Charlestown for appellant Kells The Lawyers, Shellharbour for respondents

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT JUDICIAL OFFICER: Young CJ in Eq.

LOWER COURT DATE OF DECISION: 12 December 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 1377

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 49832/06 ED 2998/05

MASON P HODGSON JA McCOLL JA

Thursday 13 December 2007 NICHOLLS V. HALL & ORS. Headnote

FACTS The appellant was born in 1959, the child of a brief relationship between his mother and a Mr. Kelly (the deceased). This relationship terminated before the appellant was born and the appellant did not meet the deceased until 1995, by which time the deceased had married and had three daughters.

Since then, the only contact between the two had been 11 telephone calls, five of which were initiated by the appellant and six by the deceased, with the last one in September 2003 on the deceased's 73rd birthday.

The appellant was married, with four dependent children aged between 8 and 16. Both he and his wife worked as part-time teachers. Their income and expenses roughly balanced. They lived in a house, with a large mortgage.

The respondents in the case were the three daughters. Each of them was married and two of them had dependent children. None of them was wealthy, but none was on the poverty line.

The deceased died on 25 November 2004, leaving an estate of about $1.3 million.

In his last will, the deceased provided that the estate pass to his three daughters equally, and made no provision for the appellant.

The appellant commenced proceedings in the Equity Division seeking provision from the estate under the Family Provision Act 1982 (the Act). Young CJ in Eq. dismissed the claim, holding that the appellant had established very little more than the mere fact of paternity.

On appeal, it was common ground that a decision on the first stage of the Singer v Berghouse test , although not strictly a discretionary judgment, ought not be disturbed on appeal unless grounds justifying interference with a discretionary decision were made out.

HELD (allowing the appeal) (per the Court) (1) In determining claims under the Act, considerations of moral duty and moral obligation are relevant, but not determinative. For example, there may be circumstances not known to the deceased or circumstances that have arisen after the time of death, both of which are relevant in assessing claims. (2) Instead, in deciding what is "adequate" and "proper" under s. 9 of the Act, the court should have regard to the claim of an applicant on the estate of the deceased. This includes: (a) all aspects of the relationship between the applicant and the deceased; (b) the needs of the applicant; (c) the size and nature of the estate; and (d) other legitimate claims on the estate, which would require consideration of the relationship between each of those claimants and the deceased and their needs. (3) That a relationship consists of nothing more than bare paternity does not necessarily preclude a claim: Kleinig v Neal (No.2) [1981] 2 NSWLR 532 and Gorton v Parks (1989) 17 NSWLR 1, approved; Palmer v Dolman [2005] NSWCA 361 at [112], followed. This does not include claims against a mere sperm donor. (4) Here, the applicant made an effort to find his father and had established some relationship with him, the applicant and his wife were suffering from health problems, there were issues with their continued employment and the estate was sizeable enough to make provision for himself and also competing claims. (5) The primary judge erred in holding that the appellant established very little more than the mere fact of paternity.

ORDERS

Appeal allowed.
Orders below set aside, and in lieu thereof order that the estate of the deceased be divided between the daughters of the deceased and the appellant in the proportion of two-sevenths to each daughter and one-seventh to the appellant.
Order that the costs of the respondents below and on appeal be paid out of the estate of the deceased on an indemnity basis.
Order that the costs of the appellant of the proceedings below be paid out of the estate of the deceased.
Order that the respondents pay the appellant's costs of the appeal, and have a certificate under the Suitors' Fund Act if otherwise entitled, and that they be reimbursed for these costs from the estate of the deceased. **********

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40832/06 ED 2998/05

MASON P HODGSON JA McCOLL JA

Thursday 13 December 2007 NICHOLLS V. HALL & ORS. Judgment 1 THE COURT: On 12 December 2006, Young CJ in Eq. dismissed with costs proceedings brought under the Family Provision Act 1982 by the appellant in relation to the estate of his late father, Barton Kelly. The appellant appeals from that decision.

CIRCUMSTANCES 2 The deceased died on 25 November 2004 aged 74. He was a divorced man, and he left four children. 3 The eldest was the appellant, who was aged 47 at the time of the judgment below. He was conceived during a relationship in 1958 between the deceased, a European, and an Aboriginal woman. The relationship ceased before the appellant was born. The appellant and the deceased first met on 17 April 1995, when the appellant was 36. So far as the evidence went, the deceased had not been aware he had fathered the appellant until shortly before this meeting, which was arranged after the appellant had tracked down his father. Their meeting on that day and the following day were the only face-to-face meetings they had. Apart from that, there were five phone calls initiated by the appellant, and six by the deceased, and the last contact was a phone call from the appellant to the deceased on his 73rd birthday, 18 September 2003. 4 The other three children were daughters of the deceased's marriage: Deborah Hall, aged 43 at the time of the judgment below; Deanne Day, aged 42 at the time of the judgment below; and Donna Robinson, aged 39 at the time of the judgment below. 5 The deceased's estate was sworn for probate purposes at just over $1.5 million, and its net value was about $1.3 million. 6 By his will dated 23 August 2002, the deceased appointed Mrs. Hall his executor, and provided that his estate should be divided equally between his three daughters. 7 As summarised by the primary judge in his judgment, the financial circumstances of the children were briefly as follows. 8 The appellant was married, with four dependent children aged between 8 and 16. He had five children from a previous marriage aged between 18 and 31. He and his wife were employed by the Department of Education as schoolteachers. They were both working less than full-time, the appellant earning $872.00 per week and his wife $926.00 per week. Their income and expenses roughly balanced. They had assets of $468,000.00 including a house at Dubbo worth $350,000.00, subject to a mortgage of $280,000.00; and they had other debts amounting to $8,000.00. 9 Mrs. Hall lived with her husband at Jamberoo in a house worth $495,000.00, subject to a mortgage of $110,000.00. She earned $669.00 per week as a job education and training adviser. Her husband earned a similar amount. She had no children. 10 Mrs. Day and her husband owned what they called a farm in Courabyra. The primary judge's judgment put its worth at about $165,000.00, although Mrs. Day's affidavit put it at $250,000.00. They had $32,800.00 of other assets, and liabilities of $28,402.00. Mrs. Day did not earn income, but had a pension of around $106.00 per week. Her husband had variable income averaging around $295.00 per week. They had two children, aged 4 and 3. Mrs. Day also had a child or children from a first marriage which subsisted between 1982 and 1988. 11 Mrs. Robinson and her husband lived in Gerringong. They hoped to build a house on land they owned there (the land being worth $350,000.00), and their other assets being about $230,000.00). Mrs. Robinson earned $175.00 per week, and her husband an average of $830.00 per week. They had three children, aged 13, 11 and 9. 12 The financial position outlined above of the three daughters was that arrived at after they had the benefit of a distribution from the estate of $263,333.33 to each of them. After that distribution, there remained $454,400.00 on deposit in the estate. The primary judge commented that the balance appeared to have gone in legal expenses.

DECISION OF PRIMARY JUDGE 13 After outlining the above matters, the primary judge considered some evidence that he regarded as significant as showing the real motive of the appellant in bringing the claim, which the primary judge suggested was not because of any need but because the appellant felt as a matter of principle his father should have left him something. 14 The primary judge found the appellant's evidence to a degree unsatisfactory, in that he did not give full details of his assets, he exaggerated the relationship between himself and the deceased, and he gave an insincere excuse for not attending the deceased's funeral. 15 He found to the effect that the relationship between the appellant and the deceased was not close: 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.

The statement that the appellant made no contact with the deceased for the last two years of the deceased's life was not quite correct: the last contact was about 14 months before the deceased died. Further, the primary judge accepted evidence that the deceased's daughters told the appellant that the deceased would not know him, and that Mrs. Hall kept him informed as to the deceased's condition. 16 The primary judge then considered the question whether biological paternity was sufficient to base a claim for provision under the Family Provision Act; and he continued: 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. 17 Accordingly, he ordered that the proceedings be dismissed. He said there seemed to be no reason why costs should not follow the event, and the proceedings were dismissed with costs.

GROUNDS OF APPEAL 18 The appellant relies on the following grounds of appeal: 1. His Honour erred in drawing an adverse inference (against the Appellant) from a failure by Counsel to cross-examine on a conversation had by the Appellant with the Defendant (J15-20). 2. His Honour erred in finding the Appellant had an improper motive for bringing the application (J14). 3. His Honour erred in finding there was something improper if the Appellant brought his Family Provision claim "as a matter of principle" (J14). 4. His Honour erred in treating the circumstances of the Appellant as those which could be described as "bare paternity" (J32 etc). 5. His Honour erred in finding the Appellant had not made a full disclosure of his financial affairs (J21). 6. His Honour erred in finding the Appellant had not made a full disclosure of his superannuation benefits (J21). 7. His Honour erred in giving any weight to a conversation had after the death of the testator concerning the intention of the Appellant to exercise his statutory right to bring a claim. 8. His Honour erred in finding that the circumstances (whatever they were) concerning the Appellant's non-attendance at the funeral of the deceased were relevant to the consideration of a claim for provision. 9. His Honour erred in finding that the Appellant (and his wife) who had assets of $468,000.00, including a house worth $350,000.00 which was subject to a mortgage of $280,000.00 and who each were receiving workers compensation payments, were "in a comfortable state of life" (J43). 10. His Honour erred in finding the Appellant had not satisfied the first limb of the "test" in Singer v Berghouse (1994) 181 CLR 201. 11. The effect of the errors (or any of them) referred to herein, was such that His Honour's discretion miscarried and he erred in dismissing the Appellants' Amended Summons. 19 It is common ground that, although a decision concerning the first stage of the enquiry specified in Singer v. Berghouse (No.2) (1994) 181 CLR 201 is not strictly a discretionary judgment, the correct approach of an appellate court is not to intervene unless grounds justifying interference with a discretionary judgment are made out: see Singer v. Berghouse at 211-212. Accordingly, this Court should not intervene unless it finds an error of principle or in fact-finding, or considers that the conclusion is such as to indicate that such an error must have occurred.

SUBMISSIONS 20 On grounds 1-3 and 7, Mr. Ellison SC for the appellant submitted there was procedural unfairness in the primary judge rejecting the appellant's version of a conversation that the primary judge considered relevant to motive, when the appellant had not been cross-examined on the conversation; and he submitted that the primary judge erred in finding that the appellant had an improper motive, and erred in taking motive into account adversely to the appellant. 21 Mr. Wilson SC for the respondents submitted there was no unfairness, in circumstances where the conflicting versions were in evidence and there was a general attack on the appellant's credibility; and he submitted that the primary judge did not rely on motive in determining the proceedings. 22 On ground 4, Mr. Ellison reviewed cases on the question of "bare paternity"; and he submitted that this was a case of substantially more than bare paternity, and that the primary judge had not considered the conduct of the deceased in unilaterally disinheriting the appellant. 23 Mr. Wilson submitted that the primary judge had not decided the case on the basis that it was one of bare paternity, but rather followed the principles in Singer v. Berghouse. 24 On grounds 5-6, Mr. Ellison submitted that at most what the appellant omitted concerning his assets was mere inadvertence, and the appellant should not have been treated by the primary judge as withholding information from the Court. 25 Mr. Wilson submitted that the primary judge's comments were justified. 26 On ground 8, Mr. Ellison submitted that the primary judge's reasoning to his conclusion that the appellant's excuse for not attending the deceased's funeral was insincere, was unsatisfactory; and that in any event, this was not relevant to his claim. 27 Mr. Wilson submitted that the evidence justifiably contributed to the primary judge's conclusion that the relationship between the appellant and the deceased was not a strong one. 28 On ground 9, Mr. Ellison submitted that the appellant's position could not be considered "comfortable", when there was a mortgage of 80 percent of the value of his home, the appellant and his wife were receiving workers' compensation, and the situation was such that their continued employment in teaching could not be guaranteed. 29 Mr. Wilson submitted that the primary judge's assessment was justified, particularly having regard to $40,000.00 which the appellant felt able to pay to lawyers to conduct legal proceedings on a matter of principle. 30 On ground 10, Mr. Ellison submitted that the primary judge erred in giving weight to the consideration that, having regard to the appellant's recreation of gambling, there was no guarantee that any money he received would go towards maintaining his family. 31 Mr. Wilson submitted the primary judge had applied the correct principles and made no error.

GROUNDS OTHER THAN "BARE PATERNITY" 32 On grounds 1-3 and 7, in our opinion there was no unfairness in the primary judge's rejecting the appellant's version of the conversation he had with Mrs. Hall when he foreshadowed the bringing of these proceedings. The different versions were in evidence, and the appellant's reliability was attacked in other ways. However, the primary judge's statement that this evidence was significant, and that the appellant's motive in bringing the proceedings was significant, is suggestive of error. 33 Motive could possibly be relevant to credit; for example, if the motive was to harm someone else. However, we see nothing detrimental to the appellant's credibility in concluding that he strongly conveyed to Mrs. Hall the feeling that he was entitled as a matter of principle to recognition in the deceased's will. 34 The circumstance that proceedings such as these are brought out of a feeling of entitlement and as a matter of principle could possibly be relevant to the facts about the relationship between an applicant and a deceased, or about the applicant's needs. However, this relevance is very indirect, and would need to be spelt out in order to make it good. But the primary judge did not purport to draw, from his views concerning the appellant's motive, any conclusion about relationship or needs: he merely said it was significant. Mr. Wilson submitted that the primary judge did not take motive into account at all; but this does not explain why the primary judge said it was significant. 35 The situation then is that the primary judge said this matter was significant, suggesting that he did take it into account in his conclusions. However, he did not spell out how it was significant, which in our opinion he would need to have done, if indeed he did take it into account. 36 As regards grounds 5 and 6, in our opinion no error is shown. The appellant's evidence about his financial situation was imprecise and in some respects inaccurate; and even accepting that this was inadvertence rather than any attempt to withhold information from the Court, it was a matter properly for comment and a matter to be taken into account in reaching a conclusion as to the true financial situation of the appellant. Where a person in the position of the appellant has not led satisfactory evidence about his financial situation, the Court cannot resolve any uncertainty left by that situation in favour of the person who has failed to give the satisfactory evidence. That, in our opinion, was the approach correctly taken by the primary judge. 37 As regards ground 8, there is some force in the submission that the primary judge's conclusion that the appellant's wife was not sick in bed and that his excuse for not attending the funeral was insincere, go beyond what was justified by evidence showing that the appellant went into Dubbo shopping centre on the day in question and three times withdrew money from a cash machine. However, in our opinion this could not be a ground for appellate intervention. We are not satisfied that an error of the kind discussed in Fox v. Percy (2003) 214 CLR 118 has been made out. In any event, the finding as to an insincere excuse about not attending the deceased's funeral was only a very small aspect of the primary judge's conclusion about the relationship between the appellant and the deceased. 38 As regards ground 9, the primary judge's comment that the appellant's financial circumstances were "comfortable", was in our view a very broad generalisation, and did not amount to a finding that the appellant had no financial need. The primary judge made more precise findings about the appellant's financial situation, and it was those findings rather than such a broad generalisation that can properly be regarded as the basis for the primary judge's conclusions. The primary judge did refer to the mortgage of 80 percent of the value of the appellant's house; and although he did not explicitly refer to matters that could have raised a question about the employment as teachers of the appellant and his wife continuing indefinitely into the future, we do not think the absence of specific reference to that matter is such as to vitiate the decision. 39 As regards ground 10, we do not think it can be said that the primary judge's conclusion is such it can be inferred from the conclusion alone that an error of principle or in fact-finding must have occurred. Nor do we think the reference to gambling played such a role in the decision as to vitiate it.

BARE PATERNITY 40 In considering whether error is shown in the primary judge's approach to the question of "bare paternity" and in his finding that the appellant had established "very little more than bare paternity", it is necessary to say a little about the concept of "moral duty" or "moral obligation" in relation to applications under the Family Provision Act, particularly when statements are made, as in par.[44] of the primary judge's judgment, that freedom to dispose of one's property at one's death is a right to be interfered with only "to the extent necessary to comply with the testator's obligations to eligible persons under that Act". The point that we wish to make is that, although the concept of "moral duty" or "moral obligation" is relevant, it is not determinative and can be misleading. It can be misleading, in our opinion, for at least two reasons: 1. In considering the question posed under s.9 of the Family Provision Act 1982, as to whether provision for an applicant is inadequate for his or her proper maintenance, education and advancement of life, the evaluation of what is "adequate" and what is "proper" may depend partly on circumstances not known to the deceased; so even if, on the basis of circumstances known to the deceased, there was no non-compliance with any moral duty or obligation, a claim may still succeed. 2. The question posed by s.9 is to be decided having regard to facts as they exist at the time of the hearing, not at the time of death: thus, for example, if there is a financial or health catastrophe occurring between the date of death and the hearing, a claim may succeed where on no view was there any non-compliance with any moral obligation of the deceased. 41 For those reasons at least, it is in our opinion more satisfactory to approach the question of what is "adequate" and what is "proper" having regard to what might be characterised as the claim of an applicant on the estate of the deceased: this more readily accommodates objective facts rather than just the facts known to the deceased, and it also accommodates events occurring after the death of the deceased. In saying this, we are not suggesting that the Court cannot give weight to the deceased's own assessment of moral claims on the deceased and of the deceased's moral obligations: this can be taken into account in assessing the strength of moral claims. 42 In assessing the strength of moral claims, the Court can have regard to (1) all aspects of the relationship between the applicant and the deceased, and (2) all aspects relating to needs of the applicant. These matters would be considered having regard also to (3) the size and nature of the estate, and to (4) other legitimate claims on the estate, each of which would also involve some consideration of the relationship of a claimant to the deceased and the needs of that claimant. When a moral claim has been assessed in that way, that does not determine whether an order should be made, but only informs what the Court would find to be "adequate" and "proper". Certainly, in our opinion, a finding that an applicant has been left without "adequate provision" for "proper maintenance" does not necessarily mean that the deceased failed in any obligation; although it can loosely be expressed in terms that there was a moral claim that, in the event, was not met. 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. 49 Turning to the present case, so far as the applicant's relationship to the deceased is concerned, his moral claim depended on paternity, and on some additional factors. The appellant did not place weight on the absence of provision by the deceased for the appellant in his early years: so far as the evidence went, this was no fault of the deceased, because it was not shown that the deceased was aware of the existence of the appellant in those years. Still, it was an objective fact that the appellant did not have the benefit of assistance from a person responsible for bringing him into the world. As we have said, this was not relied on by the appellant, and we do not consider it a substantial factor in this case, particularly when it appears that the appellant has achieved reasonable success in his life so far. Another aspect is the appellant's search for and finding of his father, and then taking steps to establish a relationship with him. This relationship was established, not to a great extent, but to some extent; and it was a relationship that also involved re-establishing some relationship between the deceased and the appellant's mother, and establishing some relationship between the appellant and the deceased's daughters. The relationship between the appellant and the deceased clearly could have been greater and more satisfactory, and as found by the primary judge, its extent was exaggerated by the appellant. However, there is no suggestion that the failure of this relationship to blossom was the fault of the appellant any more than that of the deceased. 50 Turning to other aspects of the moral claim of the appellant, the bare facts of his financial situation were set out by the primary judge. In addition, there was evidence of some health problems of both the appellant and his wife involving depression and anxiety, and there was evidence of problems with their employment that to some extent raised a question as to whether employment into the indefinite future was assured. We have already indicated that we would not consider that the primary judge's assessment of his position as "comfortable" amounted to appealable error, but it is not an assessment this Court would itself have made. 51 As regards the other two aspects, we agree with the primary judge that, by reason particularly of their relationship with the deceased, as well as the financial position of at least two of the daughters, their moral claims on the deceased's estate were stronger than that of the appellant. However, the estate was one of moderate size, and provision of (say) $175,000.00 to the appellant would have left available $350,000.00 for each daughter. 52 On that analysis, in our opinion the primary judge's finding that the appellant established "very little more than the mere fact of paternity" was an error. As regards the relationship aspect of his claim, he established some matters of substance. As regards the needs aspect of the claim, in our view he established needs, particularly those associated with the large mortgage on his house and concerns about the future health and employment of himself and his wife. As regards the size and nature of the estate, and competing claims, he established that the estate was of a size and nature that could make reasonable provision for competing claims as well as some provision for himself. We would comment also that the primary judge's dismissal of the relevance of a case of disinheritance was not entirely apposite: there is a sense in which the appellant was disinherited because, but for the will, he would have shared the estate on intestacy equally with the deceased's daughters.

CONCLUSIONS 53 In our opinion, error is shown in the finding of the primary judge that motive was significant, without giving any explanation of what the significance of motive was; and in the finding that the appellant established very little more than the mere fact of paternity. 54 In our opinion, having regard to the factors we have analysed, the appellant was left without adequate provision for his proper maintenance. In our opinion, it is appropriate to make some provision for him. Our assessment would be that the provision for him should be one half of that for each of the daughters, so that he should receive one-seventh of the estate, and each of daughters should receive two-sevenths. 55 We would order that the costs of the respondents, on a trustee basis, be paid out of estate; and that the appellant's costs at first instance and on appeal be paid out of the estate. 56 In his judgment, the primary judge made some comments about the level of costs in these proceedings, with which we agree. However, in dismissing the proceedings, he said there seemed to be no reason why costs should not follow the event, and he dismissed the proceedings with costs. 57 No complaint was made about that on appeal. However, we note that in times past, adverse costs orders have occasionally been withheld against plaintiffs who have (without misconduct in the proceedings) brought tenable yet ultimately unsuccessful claims under the Family Provision Act (see Mason & Handler, Succession Law and Practice NSW at [6089]). This practice may have been seen as having some justification from a perceived desirability of minimising post-litigation conflict in family disputes, the availability in some cases of a significant fund the use of which could alleviate hardship on a losing party, and the circumstance that in some cases the decision was a marginal discretionary decision on which reasonable minds could differ. The Court was informed that this is no longer the practice of the Equity Division and that what may be termed general costs principles apply to these types of cases. Without endorsing or disendorsing the apparent change of practice, we would simply note that the point does not arise for consideration in this appeal. 58 We would add that it may have been relevant to the exercise of the costs discretion to know what offers were made and refused by each side. This was a case involving persons who previously had a reasonable relationship, and an estate of a reasonable size, where one might have expected a willingness on both sides to compromise rather than have a relationship-damaging law case involving costs in excess of $150,000.00. 59 The Court makes the following orders: 1. Appeal allowed. 2. Orders below set aside, and in lieu thereof order that the estate of the deceased be divided between the daughters of the deceased and the appellant in the proportions of two-sevenths to each daughter and one-seventh to the appellant. 3. Order that the costs of the respondents below and on appeal be paid out of the estate of the deceased on an indemnity basis. 4. Order that the costs of the appellant of the proceedings below be paid out of the estate of the deceased. 5. Order that the respondents pay the appellant's costs of the appeal, and have a certificate under the Suitors' Fund Act if otherwise entitled, and that they be reimbursed for these costs from the estate of the deceased. **********

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Judgment (38 paragraphs)

Cases Cited (6)