Palmer v Dolman; Dolman v Palmer

Palmer v Dolman; Dolman v Palmer - [2005] NSWCA 361 - NSWCA 2005 case summary — Zoe

[15]

Issues 4 The primary challenge by the Executor to the legacy made in favour of Mrs Dolman was directed to the finding by the Master that the deceased failed fully to disclose his assets in the course of divorce proceedings under the Family Law Act, settled in 1991. A second challenge concerned the Master's conclusion that Mrs Dolman's circumstances demonstrated a need for provision out of the estate of the deceased and, if such a need were established, the size of the legacy. 5 The challenge by Fiona Dolman was directed to the Master's finding that she had not been left without adequate and proper provision for her maintenance, education and advancement in life. That challenge turned to a significant extent on the Master's conclusion that she had "rejected" her father and "maintained her rejection" up until his death: Judgment at [68]. 6 The claims by both mother and daughter were made pursuant to the Family Provision Act, s 7 of which states, relevantly for present purposes: "7. Provision out of estate or notional estate of deceased person Subject to section 9, … if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate … 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." There was no dispute that both claimants were eligible persons. However, the Act makes separate provision in relation to different classes of eligible persons, a matter relevant to the position of Fiona Dolman. Section 6(1) contains various definitions, including a definition of "eligible person" which reads, so far as relevant: " Eligible person , in relation to a deceased person, means: (a) … (b) a child of the deceased person … (c) a former wife … of the deceased person, or (d) a person: (i) who was, at any particular time, wholly or partly dependent upon the deceased person …

[17]

(3) In determining what provision (if any) ought to be made in favour of an eligible person … , the Court may take into consideration: (a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to: (i) the acquisition, conservation or improvement of property of the deceased person, or (ii) the welfare of the deceased person, including a contribution as a homemaker, (b) the character and conduct of the eligible person before and after the death of the deceased person, (c) circumstances existing before and after the death of the deceased person, and (d) any other matter which it considers relevant in the circumstances." 8 As will be discussed below, because Fiona Dolman fell within paragraph (b) of the definition of "eligible person", it was not necessary for the Court to apply s 9(1) in relation to her application. 9 The deceased died on 2 April 2003 aged 71 years. He was survived by Mrs Dolman, Mr Gregory Dolman (the son of the deceased and Mrs Dolman), Fiona Dolman, and his second wife. 10 The value of the estate at the date of the deceased's death was approximately $5,000,000. The substantial asset in the estate was the deceased's home in Drummoyne which has been sold for $4,125,000. 11 The deceased made his last will on 1 April 2003, the day before he died. He left one-half of his estate to Gregory Dolman. He left 25% to one of his sisters and her husband, 7.5% to a nephew and the nephew's wife, 5% to another sister and her husband, 2.5% to Mr Palmer (the executor) and his wife, 5% to two friends and the remaining 5% to a former de facto spouse. 12 The deceased made no provision for either Mrs Dolman or Fiona Dolman. He left statutory declarations in which he set out the reasons why he took this course. As regards Fiona Dolman, he said: "I have made no provision in my will for my daughter Fiona Dolman for reasons including that she has made no contact with me, that is she has not visited me until very recently and has shown no interest in my welfare, even though she is aware that I have been ill in hospital."

[19]

The family background, the divorce and property settlement 13 The deceased was born on 16 December 1931 and Mrs Dolman was born on 22 June 1934. They married on 18 November 1962. In 1967 the deceased acquired, in his name, the home in Drummoyne in which the family was to live for many years and which became the principal asset in his estate. Gregory Dolman was born on 15 June 1963 and Fiona Dolman on 7 December 1971. 14 In April 1984 Gregory Dolman left home. In the middle of that year the deceased and Mrs Dolman separated. The deceased occupied the upstairs section of the house and Mrs Dolman and Fiona Dolman the ground floor. The deceased occasionally came to the ground floor but Fiona Dolman was not allowed upstairs. 15 In 1990, after acrimonious litigation, the deceased and Mrs Dolman were divorced. The litigation continued until March 1991 when they settled their property arrangements. By the settlement, the deceased retained the home at Drummoyne, then valued at $900,000. He agreed to pay $500,000 to his wife and to provide her with a car and certain furniture. Mrs Dolman and Fiona Dolman went to live in a property in Rodd Point which Mrs Dolman purchased with the payments she received from the property settlement. 16 By the settlement the deceased was required to pay Mrs Dolman the $500,000 by way of two instalments, $50,000 in April and $450,000 in July 1991. He paid the $50,000 in March. As regards the balance of $450,000, Mrs Dolman said that she was paid this in July 1991. The Master pointed out, however, that this payment was "not established by production of documents", thereby implying, I think, that there was some uncertainty as to the date on which the $450,000 was paid. 17 On 9 August 1991 the deceased executed a mortgage over the Drummoyne property in favour of the National Australia Bank. The mortgage was an all moneys mortgage and, as the Master noted, "was stamped for $200,000". The Master was satisfied that the mortgage established that the deceased borrowed $200,000 from the National Australia Bank which he used in part payment of the $450,000 payable to his wife. 18 The inference from the Master's findings as a whole is that the $450,000 was paid on or after 9 August 1991 and this was accepted by both Mr Grieve QC (who together with Ms Coulton appeared for Mrs Dolman and Fiona Dolman) and Mr Harrison SC (who appeared for the executor).

[27]

The arguments as to whether fraud had been properly established 24 The evidence relating to the circumstances under which the $450,000 was paid and the potential sources of the $250,000 forming part of that sum was sparse indeed. There was, for example, not even evidence as to how and in what form the $450,000 was paid. This is no doubt because of the lapse of 14 years between the property settlement and the trial. 25 Mr Harrison made some point of this. He drew attention to the fact that in the Family Court proceedings Mrs Dolman was represented by eminent and experienced counsel. Moreover, whether the deceased had made full disclosure of his assets was very much a live issue in the Family Court proceedings and was investigated there. For example, in June 1990 Mrs Dolman sought orders in the Family Court requiring the deceased to inform her solicitors "of the branch and the account number and style" of certain specified bank accounts operated by the deceased. The banks mentioned in the application included the ANZ Bank in Australia and two banks in the Philippines. Apparently, this application was resolved by a consent order. Mrs Dolman did not, before the Master, lead any evidence about the bank accounts, the subject of the application in 1991. 26 Mr Harrison submitted that as, in 1991, the deceased had relations with other banks, a reasonable possibility arises that he borrowed the $250,000 from one of those banks. 27 Supporting Mr Harrison's argument, generally, is the fact that the deceased earned sufficient to be able to repay any loan of $250,000 that he might have received in August 1991. Since the mid-1970s the deceased was employed as a project manager on construction sites. In 1987 he worked as a site manager on the construction of the Asian Development Bank head office in Manila, Philippines. He remained in the Philippines until January 1991 when he returned to Sydney and had six months off work. In August 1992 he went to Hong Kong where he was employed as a consultant and project manager on the construction of two hotels in Vietnam. He worked in Hong Kong until July 1994 and thereafter in Vietnam where he supervised the construction of the buildings until the end of 1996. He returned to Sydney in 1997 and in that year there was no evidence as to what he earned subsequent to 1991, but it was not likely to have been insignificant. 28 At some time before 2004 or early 2005, when Mrs Dolman learned that the mortgage had only been stamped to $200,000, she was told by a neighbour that the deceased "didn't borrow all the money that he said he did". Mrs Dolman took no steps to investigate this allegation; she said, "I didn't do anything further about it". She said that she did not do so "because I had enough at the time and I didn't want to go back". She added that she was "a bit frightened to do so". 29 Mr Harrison submitted that, in the circumstances, Mrs Dolman should have raised the issue of fraud at the time when the deceased would have been able to meet the allegations against him. He made this submission as part of his argument that Mrs Dolman's delay should be taken into account when weighing up all the circumstances. 30 Mr Harrison submitted that Mrs Dolman's delay led to the executor experiencing difficulties in finding evidence to rebut the case made so late against the estate. This submission, however, loses some of its force by the fact that the executor made no search of` the deceased's personal papers in an effort to determine how the deceased found the $250,000 forming part of the instalment of $450,000. 31 Mr Grieve submitted, on the other hand, that it was highly improbable that a bank would grant a loan of $250,000 without security. A second mortgage had not been registered over the deceased's home (that being the only security available) and, in any event, there was no apparent reason why the deceased should borrow $200,000 from the National Australia Bank against a first mortgage but borrow the $250,000 from a different bank. These matters, he submitted, negated any probability that the deceased borrowed the extra money from a bank. 32 In answering the argument that the deceased could have borrowed the $250,000 from a friend, Mr Grieve submitted: "Mr Palmer [the executor], having been a long-standing friend of the deceased, as a matter of likelihood would have known of that".

[30]

The standard of proof, in a civil case, where fraud is sought to be inferred from circumstantial evidence 33 It was common ground between Mr Grieve and Mr Harrison that the standard of proof to be applied was that expressed by Menzies J in Plomp v R (1963) 110 CLR 234 at 252, namely: "[Whether] there was sufficient evidence upon which the jury, fulfilling their duty not to convict unless the inference of guilt was the only inference which they considered that they could rationally draw from the circumstances, could have convicted the applicant. …The customary direction where circumstantial evidence is relied upon to prove guilt, [is] that to enable a jury to bring in a verdict of guilty it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw…" 34 Despite the agreement of counsel, however, Plomp was a criminal case and what was there said does not apply to this case. 35 The relevant principle in regard to civil cases was expressed by the High Court in the case of Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, in a passage that has been repeated many times. The passage is: "Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674, at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise …" 36 This statement in Bradshaw was adopted in Luxton v Vines (1952) 85 CLR 352 at 358; Holloway v McFeeters (1956) 94 CLR 470 at 480 to 481; Jones v Dunkel (1959) 101 CLR 298 at 304;and Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161 and 168. 37 In Chamberlain v R (No 2) (1984) 153 CLR 521 Gibbs CJ and Mason J said at 536: "When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged …" 38 In Doney v R (1990) 171 CLR 207 Deane, Dawson, Toohey, Gaudron and McHugh JJ said at 211 that when a lesser standard of proof than beyond reasonable doubt will suffice, "the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved". 39 On these authorities, it is sufficient in a civil case that the circumstances raise a more probable inference in favour of what is alleged. (See also Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125).

[33]

The approach, in a civil case, in determining whether circumstantial evidence leads to an inference of fraud 41 Certain principles have become well-established in determining, in a civil case, whether circumstantial evidence leads to an inference of fraud. The following are presently pertinent: (a) The jury must consider "the weight which is to be given to the united force of all the circumstances put together" (per Lord Cairns in Belhaven & Stenton Peerage (1875) 1 App Cas 278 at 279 - quoted with approval by Gibbs CJ and Mason J in Chamberlain v R (No 2) at 535). (b) The onus of proof is only to be applied at the final stage of the reasoning process: "[i]t is erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. To do so destroys the integrity of [a] circumstantial case" (per Winneke P in Transport Industries Insurance Co Ltd v Longmuir at 129). (c) The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful. (d) Where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved: Bradshaw. 42 Mr Harrison placed considerable reliance on the approach expressed in Briginshaw v Briginshaw (1938) 60 CLR 336. Although Briginshaw has been quoted so many times, it is helpful to repeat Sir Owen Dixon's statement at 361 to 362: "Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 43 The question arises as to the authoritative weight that, today, attaches to the observation that, where a serious allegation is made, "reasonable satisfaction" should not be produced by "inexact proofs, indefinite testimony, or indirect inferences". 44 In Briginshaw Dixon J at 365 to 367 expressly recognised that adultery (the "serious allegation" in that case) might be proved by "circumstantial evidentiary facts" (see at 366). His Honour approved Lord Buckmaster's reference in Ross v Ross (1930) AC 1 at 7 to proof of adultery as being "a matter of inference and circumstance", and accepted that the test for corroboration of confessional material depends on the "surrounding circumstances" (at 366). Later, in Plomp, Dixon J observed at 242 (in a passage quoted in Chamberlain v R (No 2) by Gibbs CJ and Mason J at 536): "I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done." 45 It is worth repeating, I think, that in Chamberlain v R (No 2) at 536 Gibbs CJ and Mason J said that in a civil case "the circumstances must raise a more probable inference in favour of what is alleged".

[35]

Was fraud established? 48 As I have indicated, the evidence establishes that at the time of settlement the deceased needed to borrow to pay $500,000 to Mrs Dolman as he could not otherwise find the funds. In particular, the deceased's disclosed income, assets and liabilities at the relevant time were such that he could not have paid the $250,000 (forming part of the $450,000) without borrowing the entire sum. His own public utterances support this finding. 49 The deceased borrowed no more than $200,000 from the National Australia Bank, and he needed a further $250,000 to pay the final instalment of $450,000. I appreciate that it is possible that he may have borrowed more from that bank but I think that improbable; the probabilities are that once the bank required $200,000 to be secured by a mortgage, it would have required a larger loan to be secured as well. 50 The only security that the deceased might have provided for a loan of $250,000 was his home valued at about $900,000 and the evidence indicates that his home was not so utilised. Two consequences follow from this. Firstly, whatever loan was obtained (if one was obtained) would have been unsecured unless he had another undisclosed asset. Secondly, the Master's finding that, on the probabilities, the deceased borrowed no more than $200,000 from the National Australia Bank cannot be challenged. 51 Had the deceased borrowed the money from another bank or financial institution on an unregistered mortgage, the probabilities are that the institution in question would have lodged a caveat against the title to the deceased's home to protect such a loan, and there was no evidence of any such caveat. I therefore accept that he did not obtain such a loan. 52 In coming to the conclusion expressed in the last paragraph, I have had regard to the fact that Mrs Dolman led no evidence about the accounts that the deceased, to her knowledge, had with other banks. I have taken into account the terms of the settlement arrived at which suggest that, whatever investigations were made by Mrs Dolman in the course of the proceedings in the Family Court, they did not throw up evidence of any assets other than those in fact disclosed to her by the deceased. I also have borne in mind that the executor made no attempt whatever to ascertain from the deceased's papers whether there was any material that could explain where the balance of $250,000 came from. He appears to have conducted no investigation of any kind. 53 It is within the bounds of possibility that the $250,000 was a gift to the deceased from some unknown person. This possibility, however, is particularly remote and was not even suggested by the executor. It is also within the bounds of possibility that he acquired the $250,000 from gambling; but there was no evidence that he was a gambler and this possibility, too, was not suggested by the executor. 54 Thus, the question to be weighed in the balance is: did the deceased have cash to the extent of $250,000 (or the wherewithal to obtain cash to that extent) which he did not disclose to Mrs Dolman at the time of the property settlement, or did he borrow the $250,000 without security from a friend? 55 Support for the proposition that he did not conceal assets from Mrs Dolman (which concealment - if it occurred - must have been fraudulent) is obtained from "the conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct". 56 The latter inference is of particular significance in this case as the deceased, is now unable to answer the serious allegations against him. 57 There are, however, matters that weigh against the conventional perception. The Family Court proceedings were bitterly contested. In such circumstances it is not completely out of the ordinary for some men to attempt to conceal their assets to reduce the amounts they have to pay on divorce to their former wives. Experience tells us that fraud in these circumstances is more frequent than commercial fraud. The deceased, generally, as I will indicate in detail when dealing with Fiona Dolman's appeal, was not generous, financially, to Mrs Dolman and Fiona Dolman prior to the divorce (or at any time) and seems to have been desirous, generally, of keeping his financial commitment to them to a minimum. It appears from a draft letter he wrote to Fiona Dolman (but never posted or gave to her) that he felt that he had done his duty by Mrs Dolman and Fiona Dolman and given them ample financial support (even though, I think, he had been something of a skinflint towards them). Lastly, at the relevant time there was little love lost between the deceased, on the one hand, and Mrs Dolman and Fiona Dolman on the other. In these particular circumstances, it is not improbable that the deceased might have persuaded himself that it was appropriate to conceal assets from his wife and daughter. 58 There are other matters that support the inference that there was a concealment of assets and not an unsecured borrowing from a friend. Firstly, what convincing reason could there be for the deceased deciding to borrow only $200,000 from the National Australia Bank and the balance of $250,000 from a friend? There was ample equity in the house to support a borrowing of $450,000. The only possible advantage to the deceased would be if the loan from the friend would be at a lesser rate of interest. Secondly, while it is possible, it is not likely that even a friend, in 1991, would make an unsecured loan, free of interest, in such a significant sum as $250,000. Thirdly, there was no explanation as to where the first payment of $50,000 came from. The deceased's financial position was such that he would have had to borrow this sum as well. The likelihood of him borrowing this from a friend on an unsecured basis, then borrowing $200,000 from the bank on a mortgage, and then borrowing $250,000, unsecured, from a friend, makes little sense. 59 The proposition that the deceased obtained the $250,000 (and, indeed, the $50,000) from a friend, without security, is a totally speculative possibility. The proposition that he had these funds (or the wherewithal to obtain them) which he concealed from Mrs Dolman, is also speculative to a degree. It is, however, supported by the various circumstances to which I have referred and in my view is the probable inference to be drawn. 60 In my opinion, the contrary possibilities - when weighed in the balance - do not rebut the inference that the deceased probably concealed the true extent of his assets from Mrs Dolman. For the reasons I have expressed, I am not persuaded that the Master erred on this issue. Had the test been that in Plomp I might have come to a different conclusion, but Plomp does not apply. Accordingly, I would uphold the Master's finding that the deceased fraudulently concealed his assets from Mrs Dolman.

[46]

"In 1991 Fiona's parents were divorced and Fiona and her mother went to live at Rodd Point. It is plain that after they moved to Rodd Point the deceased used to send cards to Fiona and he kept contact in that way. [It was] [i]n 1993 or 1994 when Fiona was 22 or 23 years of age and she had been living with her mother for some two or three years at Rodd Point that she took the initiative to cut off any further overtures to her by the deceased. She did so by writing a letter to her father which is not in evidence but which the first plaintiff [Fiona] concedes was a brutal and honest letter." 79 The Master observed that the next incident occurred in 1996 or 1997 when Fiona Dolman drove past the deceased's house, made eye-contact with him, but kept driving on. She explained that at that time in her life she was fearful of her father and she never knew what he was going to say. She thought that she was never good enough for him. The Master noted that at that stage Fiona Dolman was 26 years of age and was working and living her life as an adult. 80 The Master stated at [67]: "Some two weeks before the death of the deceased[,] Fiona, who was 32 years of age, was told by a former neighbour that her father had cancer and did not have long to live. She did nothing about it. In cross-examination she was asked about a visit to the deceased a day or so before he died in these terms: Q And you've given an account in your very first affidavit of some conversations you had with him in the last days of his life? A. Yes. Q. And you recall that one of the statements that you attribute to yourself during that first visit, this is reading from paragraph 37 of your first affidavit, is that you said to him, "I can not regret my decision not to see you." You remember saying that to him? A. Yes, I do. Q. And you maintained your rejection of him right up until the moment of his death? A. I couldn't change it. I regret it now and I have to live with it, but at that point because things were moving so fast, you know. I find out my father's sick on the Friday and I lose him on the Wednesday. How am I supposed to put five days into 12 years or 31 years of my life? I do remember saying that and at that time I was telling myself I do regret it because I couldn't change it and now I have to live with it. Q. In your affidavit [you] say that although he was disappointed in your decision he understood; do you recall saying that? A. Can you say it again. Q. In your affidavit you responded to that statement that although he was disappointed in your decision he understood? A Yes." 81 The Master found at [68]: "Plainly, Fiona maintained her rejection of her father up until his death."

[47]

He concluded at [69]: "It is apparent that Fiona's rejection of her father once she was an adult was a deliberate act on her part and maintained by her up until the date of death." 82 The Master said that what had to be considered was whether there was any reason for this rejection which might be attributed to fault on the deceased's part or, alternatively, something which was too difficult for Fiona Dolman to overcome and thus understandable. 83 After reviewing certain evidence by psychiatrists called by Fiona Dolman and the executor the Master said at [78]: "We are here dealing with a plaintiff who perhaps lacked some insight but who is not suffering from any psychiatric illness. Although there are statements by the plaintiff about being fearful of her father she gives no evidence of any conduct of the deceased which might have led to those feeling[s]. Given her closeness with her mother at separation it is quite natural that she remained with her mother. To my mind it does not explain what happened once she was an adult. At the age of 22 years she made a very conscious decision to reject her father's overtures, which had been taking place for a number of years, to maintain contact. After that rejection her father did not cut off contact but wrote to her and to use his expression he 'left the door open to her' to come back and have contact with him." 84 The Master concluded at [80] and [81]: "Notwithstanding reminders of her father when she saw him in 1996 or 1997 she did not establish contact. I do not accept that the reason was that she was fearful of her father because there is no evidence of anything which one often hears in these cases to lead to such a fear. It seems to me that for her own reasons the plaintiff decided to throw her lot in with her mother and maintain loyalty to her while having nothing to do with her father in his later years. That rejection continued up until the death of the deceased. It was only when the plaintiff realised she had been left out of his will that she became upset and for that reason she has brought these proceedings. In my view, when considering the totality of the relationship between the first plaintiff, Fiona Dolman, and the deceased, the plaintiff's conduct was such that it is not appropriate for her to receive provision. In other words, I do not think the first plaintiff passes the jurisdiction hurdle of being left without adequate and proper provision for her maintenance, education and advancement in life."

[52]

Dr Apler expressed the following opinion: "Mr Dolman's tendency to be demanding, critical and unpredictable resulted in Ms Dolman being fearful, avoidant and unconfident. It explains her reluctance to see her father in later years." 93 Of course, it was open to the Master to reject the evidence of Dr Apler, or not to accept the veracity of the information given to him by Fiona Dolman. The Master, however, made no findings of this kind. On the contrary, he said (as I have pointed out) that he did not accept that Fiona Dolman was fearful of her father on the ground that there was "no evidence of anything which one often hears in these cases to lead to such a fear". 94 The testimony that I have set out is evidence that could have led to a fear of the kind articulated by Fiona Dolman. I accept, therefore, that the Master erred by holding that there was no evidence of matters that would give rise to Fiona Dolman fearing the deceased. 95 I would add that, in setting out the evidence supporting Fiona Dolman's assertion that she was fearful of her father, I do not intend to make any judgment as to whether such fear was justified or as to whether the deceased's conduct involves any moral disapprobation. The circumstances described are not particularly unusual in modern society and different personalities react differently to them. The relevance of the evidence supporting Fiona Dolman's assertion is twofold. Firstly, it supports Mr Grieve's contention that the Master erred in attributing the estrangement solely to Fiona Dolman. Secondly, to give effect to the admonition to have regard to the totality of the circumstances, a proper understanding is required of the matters that led and contributed to the breakdown of the relationship. 96 There is another factor, and an important one, relevant to the breakdown of the relationship, to which the Master also did not refer. That is the parsimonious attitude of the deceased in providing financial support to Fiona Dolman and her mother. 97 In 1991, after Mrs Dolman and Fiona Dolman had moved from the family home in Drummoyne to Rodd Point the deceased left Mrs Dolman a note to the effect that he was leaving her $25 for Fiona Dolman and that Mrs Dolman should "make an appointment to see Social Security". In effect, he provided irregular payments of $25 a week to Mrs Dolman for the maintenance of Fiona Dolman.

[53]

98 Over the relevant period Mrs Dolman lived in relatively straitened circumstances. She said that $25 per week was insufficient to maintain Fiona Dolman's living, educational, health and recreational needs. Mrs Dolman said that there was only one occasion from 1984 onwards on which additional assistance was provided, (when the deceased paid for dental treatment for Fiona Dolman). It was difficult financially for Mrs Dolman to provide dinners on celebratory occasions such as Christmas or Fiona Dolman's birthdays. According to Mrs Dolman, "[v]ery rarely from 1984 to 1991" could she afford to purchase clothing or shoes for Fiona Dolman. From 1984 to 1991 she and Fiona Dolman only ate at restaurants when neighbours offered to pay for their meals. When Fiona Dolman was in her teens, she received invitations to parties but she rarely went because Mrs Dolman could not afford to pay for a present and sometimes the invitations required that she pay for her meal. From 1984 until Fiona Dolman started work in August 1991 she did not buy clothes. She received hand-me-downs from neighbours. She would wear her clothes until they "either fell apart or [she] outgrew [them]". She wore her shoes "until they were ruined". She had to be careful with her school uniform because her mother could not afford to purchase any new items for her. 99 The financial circumstances of Fiona Dolman in this period have to be seen against the context of the deceased (according to the statement of financial circumstances he filed on 7 March 1991 in the Family Court) spending $34,450 in the year ended 30 June 1990 on entertainment. 100 In my view, it was understandable for a young person in Fiona Dolman's position, observing the financial difficulties of her mother and experiencing financial difficulties herself, to have feelings of resentment towards her father. These are matters that should have been taken into account in determining the totality of the circumstances relevant to the jurisdictional question. As the Master made no mention of them I infer that he did not take them into account. 101 The Master said that, after Fiona Dolman had written the deceased a letter (which Fiona Dolman herself described as a "brutal request to stop all communication"), the deceased "did not cut off contact but wrote to her and to use his expression he 'left the door open to her' to come back and have contact with him". Significantly, however, the deceased's letter, to which the Master referred, was written to a friend, Mrs Chestnut, and Fiona Dolman did not receive it. 102 Although the deceased did not otherwise communicate with Fiona Dolman, he sent her birthday and Christmas cards to which she did not reply. These cards stopped in 1993 or 1994 when Fiona Dolman wrote the deceased the "brutal" letter. The deceased wrote a reply (presumably a draft) to this letter, but never sent it. It is plain from the deceased's draft reply that Fiona Dolman had complained about the lack of financial support she had received from him and the time he had spent working and not paying her adequate attention. The deceased's draft reply is argumentative and aggressive and displays no real sense of affection. Again, these are not matters to which any moral judgment can attach. They merely demonstrate that little significance can be paid to Fiona Dolman's letter. There are two sides to the story. 103 In the light of the breakdown that had occurred, and the deceased's own conduct, it is not difficult to understand Fiona Dolman's reluctance to visit the deceased when he was in hospital, dying. By that I do not suggest that her behaviour was morally justified. Rather, it seems to me, her conduct - understandable as it is - has little significance in determining whether she passes the jurisdictional hurdle under the Act. I would add that Fiona Dolman's evidence as to what occurred when she did visit her father suggests that there was a reasonable reconciliation between the two immediately prior to his death (she visited him in hospital on three of the last days of his life).

[59]

The present is a substantially different case to Scales . The differences are obvious and I do not think that I need to detail them. 108 In Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Holland J set out various circumstances that might give rise to a moral obligation on a testator to provide for a child in need. He said at 540: "One of the circumstances must be the size of the testator's estate because a man cannot be expected to give what he cannot afford but, if he can well afford it, he should provide adequately for those for whom the statute expects him to provide. If it is a case of 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. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed." 109 In Gorton v Parks (1989) 17 NSWLR 1 Bryson J (at 9-10) made what Young J in Walker v Walker (unreported, NSWSC, 17 May 1996) described as "a statement which has become a favourite for counsel appearing for what might be called 'non-dutiful children' in applications under this Act". Bryson J said (in a passage that has often been quoted): "The observations [of Dixon CJ about paternity in Scale's case] seem to involve a view of the moral obligations of a parent which differs I would think from the almost universal view of the Australian community; the view involved seems to have been that the moral obligations of a parent can be limited, and can possibly be escaped, by steadfastly maintained repudiation or evasion. Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds 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 had no duty towards them. … 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." 110 I agree, generally, with these remarks and would add that the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.

[60]

111 In Walker v Walker Young J said at [30] - [31]: "… I reject the approach that all an applicant under this Act [Family Provision Act 1989 (NSW)] has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally; see for instance Scales' case at 19." 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. Did Fiona Dolman satisfy the jurisdictional requirement 113 The Master said, as I have indicated, "it seems to me that for her own reasons [Fiona Dolman] decided to throw her lot in with her mother and maintain loyalty to her while having nothing to do with her father in his later years. That rejection continued up until the death of the deceased". If the Master's reference to Fiona Dolman's "own reasons" is a finding that the deceased's conduct towards Fiona Dolman could not be criticised (in the context of a father's moral duty) and did not contribute to Fiona Dolman's decision (and in the context of the Master's judgment as a whole, I think that this is what he did mean by these words) I think, with respect, that he erred. 114 Having regard to the totality of the circumstances, I do not think that Fiona Dolman's conduct should preclude the Court from being satisfied, under s 9(2) of the Act, that the provision made for her in the deceased's estate (namely, nil) was inadequate for her proper maintenance, education and advancement in life. 115 In my view the totality of the circumstances to be taken into account in relation to s 9(2) are, at least, the following:

At a glance

Court

Decision date

Before

Source

Judgment (76 paragraphs)

Legislation Cited (7)

Cases Cited (17)