14 There was evidence from a private investigator Mr Reid who set up a deception to trap the plaintiff. He arranged to have his car serviced by the plaintiff at the plaintiff's garage. During the course of the servicing he engaged the plaintiff in conversation about many matters to do with the plaintiff's personal situation and his assets. According to Mr Reid the plaintiff said that he had been in a de facto relationship for about 12 years and that he and his de facto had purchased a new house approximately 18 months previously. According to Mr Reid he also had boasted about having two sets of books and about having deceived the Commissioner for Taxation as to what were his takings for the business.
15 Evidence was given by the plaintiff denying the substance of these allegations and, indeed, the plaintiff called Tracey Holland who also denied that there was any de facto relationship between them. There is no doubt that the plaintiff and Tracey Holland had shared a house together for some 11 or 12 years. Prior to Tracey Holland purchasing her house 18 months previously they had shared a house which the plaintiff himself had rented.
16 I was not impressed by Mr Reid as a witness. He failed to address the questions asked as a means of avoiding the simple question which required him to recount some conversations which had occurred only some four weeks earlier. He was evasive in this area. His contemporaneous notes did not refer to the words "de facto" or "wife" but merely to the fact that they "had been together for 10 years, about 12 years". This is surprising because if the word "de facto" had been mentioned it would be likely to have been noted. His account of the conversation attributed to the plaintiff about the place of his divorce I do not regard as significant.
17 There is no doubt that the plaintiff may have been tricked into talking about his personal life and the fact is that people often boast to strangers who are not likely to know the facts. It is also common for people to boast about cheating the Commissioner of Taxation.
18 Having regard to the sworn evidence of the plaintiff and Tracey Holland, whose evidence I accept, I am not satisfied that they were in a de facto relationship nor am I satisfied that the plaintiff has an interest in Tracey Holland's house.
19 The plaintiff's income is not critical in this case but in the event that it is, I would lean towards accepting Mr Reid's version as people who do not cheat the taxation system tend not to boast to the contrary.
20 There have been no contributions to the estate of the deceased by the plaintiff. It is of course critical in this case to look at the relationship between the plaintiff and the deceased. As I have already recounted, the deceased was denied access to his son by his former wife. One strange matter that occurred when the plaintiff was young was that he used to attend the local Masonic Hall for Scottish dancing. There he learned to play the drums. It turned out that his teacher was the deceased. The plaintiff was told this later when he was about 12 years old. No doubt the deceased had been forbidden to disclose his identity to the plaintiff.
21 The first occasion the plaintiff and the deceased met was in the early 1960s, after his marriage, and there were two occasions at this time. Thereafter there seems to have been one contact when the plaintiff, following a breakup in his marriage, proposed to move to Queensland. According to the plaintiff he visited his father and gave him his address so that he could contact him. There was only one other occasion when the plaintiff visited the deceased and that was the year that the deceased died. The plaintiff happened to be visiting in Sydney with Tracey Holland when they were both going to attend a family function connected with Tracey's father. I should mention that the arrangement between the plaintiff and Tracey arose out of the fact that the plaintiff knew Tracey's father as a friend.
22 The plaintiff insists that during the period from 1982 up until the year before the deceased's death that he and the deceased exchanged Christmas cards and spoke occasionally on the telephone. The plaintiff's evidence was supported by Tracey Holland. Mrs Williams said she did not know of any Christmas cards that the deceased received from the plaintiff. Mrs Williams, as I recounted, did not notify the plaintiff of the deceased's death. She says that she looked for a piece of paper with an address on it which had been given to the deceased. The version of this evidence in cross-examination was somewhat different from the affidavit evidence. It seems to me that Mrs Williams was not anxious to recognise the plaintiff and this may well have been known to the deceased. It would have been quite easy for Mrs Williams to have caused enquiries to be made to notify the plaintiff of the death of his father.
23 Nancy Mapledoram was cross-examined about the attitude of the deceased to his son. She gave evidence to the effect that the deceased lost interest after he could not get access to his son. There are probably good reasons why he did not take proceedings to enforce access, not the least of which would have been the cost. One thus has a situation where it was not the fault of the plaintiff that he did not have a relationship with the deceased during his childhood. It was probably something for which the deceased also could not be blamed. Of importance is the attitude that the deceased and the plaintiff took once contact was established in the early 1960s. The deceased, according to his partner, obviously continued his lack of interest. More importantly so did the plaintiff. This raises the question, whether in the circumstances of this somewhat minimal contact between the plaintiff and his father, it is appropriate that provision be made.
24 Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person-
"it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought , having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person."
25 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows:
"This conclusion directly raises the question of whether the word "ought" in s.7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator's Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.
…..
It seems plain from the comparison of the two Acts, and particularly from s.3 of the 1916 Act and s.7 and s.9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.
The Act draws a distinction between the eligible persons referred to in par(a) and par(b) on the one hand and par(c) and par(d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased's person spoken of in s.3 of the 1916 Act and s.7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased.
In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin J both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that "many cases suggest that an applicant must show a moral claim …", he went on to say that this was a gloss on the Act and was unwarranted and inconsistent with the language of the legislative scheme.
It seems to me that the introduction into s.7 of the present Act of the word "ought" in replacement of the words from s.3 of the 1916 Act "as the Court thinks fit" shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word "ought" seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par(c) and par(d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par(a) and par(b) although it is unnecessary to decide that in this case."
26 Meagher JA (NSWLR at 570) agreed with Priestley JA.
27 Meagher JA had previously expressed a view in Hughes v Hughes Court of Appeal unreported 6 June 1989 (an adult daughter case) that the duty arose to make provision as established in that case as follows:-
"Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right , but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be." (Emphases added).
28 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.
29 In Benney v Jones, Mahoney JA at 560 said:
"Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1.
"Where the applicant is a member of the deceased's family, as referred to in the earlier paragraphs of s.6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear."
30 In Gorton v Parks (1989) 17 NSWLR 1 at 7 ff, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, His Honour noted:
"It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation:"
31 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales Case) (1962) 107 CLR 9. Scales' case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18):
"The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. … In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death."
32 At 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales Case. He said:
"Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; … Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962."
33 Bryson J in any event distinguished Scales case (p 11) on the basis that on the facts before him the plaintiffs,
"In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. .."
34 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton's case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows:
"In Singer's case , a widow who had been married less than one year to a 68 year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at page 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that "we doubt this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to "moral duty" or "moral obligation" may well be understood as amounting to a gloss on the statutory language". They then say "the determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty."
35 Young J also observed:
"In Fraser's case, Kirby P at p29 said that "I do not consider that it would be safe for this court, or other courts in this state, to disregard the obita dicta in Singer v Berghouse concerning "moral duty". However, His Honour's decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law "either by the observations of the majority in Singer or by the High Court's reference, in the footnote, to what Murphy J said earlier (p27)."
"Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words "moral claim" in decisions under this Act.
"Sheller JA again did not consider that the High Court's suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p42 "the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant's case but not alone sufficient to justify an order in the claimant's favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order."
36 In Walker v Walker, (p 27) Young J noted:
"It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.
The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.
Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. …"
37 It seems to me that the formulation by His Honour Mr Justice Young is sufficient and appropriate to guide me in determining these matters.
38 There are a number of things which the plaintiff in submissions has raised relating to the relationship. In particular, emphasis was placed on the last 20 years of the deceased's life and the contact which ensued over this period. It was pointed out that the plaintiff lived 600 miles away in Queensland and could not afford to visit his father. References were also made to the fact that, according to the plaintiff, the second and third wives of the deceased did not encourage the contact. One important fact which should not be overlooked is that the deceased acknowledged the plaintiff and supported him during his childhood.
39 I find it surprising that for the whole of the period from the early 1960s up until 1982 the plaintiff only saw his father on two occasions. He does not suggest that he telephoned his father regularly during this period. It seems to me that in this period the plaintiff totally ignored the existence of his father. This leaves one with the support for the plaintiff in his childhood and the slight relationship between them over the last years of the deceased's life. Accepting as I do the plaintiff's version of this relationship there are little of the normal incidents of a father and son relationship. Thus the same considerations do not apply as where a child has had a full lifetime relationship with his or her parent and assisted the parent in the parent's old age. The plaintiff's position in this case was taken by Susan Maguire and her husband who were the ones who looked after the deceased and Susan's mother, Mrs Williams, when they needed help in their declining health.