The plaintiff's costs of these proceedings are estimated at $30,000. If they are ordered out of the estate, this will leave a net estate in the vicinity of $400,000. It is to be remembered that, of the payments by the Cullens from which this balance will remain, only $600,000 is to be paid against the transfer of the Cronulla property, the balance being payable in two instalments of $50,000 each at yearly intervals.
12 The plaintiff left school in 1965 and took a Bachelor of Commerce degree at the University of New South Wales at the end of 1968. He qualified as a chartered accountant in 1973. He lived at home until he married in 1977. After qualification, he worked as a chartered accountant, largely for Australian Guarantee Corporation, until he was retrenched in July 1994. He bought a business and ran it until March 1996. This was disastrous and he lost $175,000 on the resale and suffered anxiety and depression as a result of his failure in the business. He could not at first obtain employment as a chartered accountant, but did so during 1996 and was employed by Solution 6 until October 1999 and by Mander Toyota Forklift as financial controller until October 2005, when he was again made redundant as a result of restructuring resulting from a takeover. After October 2005 he applied for at least one hundred positions without success and was unemployed until June 2006, when he was appointed group financial controller with the Hastie Group. In his original appointment the duration was said to be six to eight weeks only, but he has continued in employment there since that time. His employment, however, is casual only and he is paid at a rate of $49.05 per hour including superannuation. He is paid only in respect of the days and hours which he actually works, but in general terms does work eight hours a day five days a week. He feels insecure, as he feels that his appointment may be terminated when his allotted task of straightening out head office accounting processes is completed. His health is good.
13 His wife works as a health services manager with the Aged Care and Rehabilitation Service of the Northern Sydney Central Coast Area Health Service. Her current net salary is approximately $40,500 per annum. In 2004 she underwent surgery for breast cancer and has since required the removal of further cysts in the same area. In February 2006 she was diagnosed as having arthritis in the right side of her jaw with pain radiating through her neck into her right shoulder and down her right arm. She also has arthritis in her right elbow joint. She takes medication for pain on a daily basis and on occasion has not gone to work due to pain in her face.
14 The defendant and his wife are both high school teachers, he of history and geography and she of science. They at present have salaries of $71,300 per annum gross each. From time to time they receive additional small amounts for such activities as marking examination papers. They are both in good health.
15 The plaintiff's and his wife's assets and liabilities are as follows:
(a) they own a home jointly, in Epping, with a value of $750,000; the home is unencumbered;
(b) they have about $105,000 in cash savings;
(c) the plaintiff will receive from the estate a legacy of $50,000;
(d) they have two cars with a total value of about $33,000;
(e) they have superannuation (the plaintiff, $265,000; the plaintiff's wife $53,000);
(f) the plaintiff has shares with a value of about $11,000;
(g) their combined income at the present time exceeds their combined expenditure;
(h) they have no financial dependents;
(i) they have no liabilities.
16 The defendant's and his wife's assets and liabilities are as follows:
(a) they own a home jointly, at Adamstown Heights, Newcastle, which is worth about $500,000;
(b) they have $5,000 in cash savings;
(c) under the will the defendant will receive the residue of the estate which has a value of about $430,000 (although the payment of $100,000 of this amount is deferred);
(d) they have a car ($10,000);
(e) the plaintiff has superannuation arrangements which will provide him with a pension of about $43,000 per annum together with a lump sum of about $42,000; his wife has superannuation of $336,000;
(f) they have two adult children who live at home but are close to completing their university education;
(g) they have liabilities of about $198,000, most of which are borrowings secured by a mortgage over their home.
17 The testator's family appears to have been a close and happy one for most of her life. The plaintiff and his wife and children visited the testator and the Cullens at the Cronulla property some six or seven times a year together with special occasions. There were attempts to investigate the number of times a year that visits were paid, a rather arid exercise, particularly when the number of visits was in any event averaged over something approaching 30 years. That the visits were, prior to 2004, comparatively regular and friendly seems undoubted. A very important factor in the maintenance of relations between the testator and the plaintiff's household is that, until 2004, the plaintiff's wife rang the testator regularly once a week on Friday and often rang her in between as well. I accept the evidence of the plaintiff's wife concerning those matters for the reasons adverted to below.
18 The happy situation disintegrated about 2004. Disputes arose in the household at the Cronulla property between the testator and the Cullens, both domestically and as a result of the dispute as to whether or not the testator had agreed to give the Cullens a beneficial one-half interest in the Cronulla property. The testator moved out of the Cronulla property in about November 2004. She was living at the Cardinal Freeman Hostel at Ashfield when she died on 10 March 2005.
19 There is no doubt that the frequency of contact between the testator on the one hand and the plaintiff and his wife on the other diminished during 2004. This is conceded by the plaintiff and his wife and attested to by a 2004 diary kept by the testator, which is in evidence. More will be said about the reasons for this diminution in contact under the heading "Findings and Conclusion".
20 The plaintiff and the testator saw each other for the last time on 12 February 2005, about one month before her death. This was an unhappy occasion, of which also more will need to be said.
Credit of Witnesses
21 Three witnesses gave oral evidence before me: the plaintiff, the defendant and the plaintiff's wife. Attacks were made on the credit of both male witnesses. Whilst certainly it was a fair comment that both of them could have been more meticulous in the manner in which they gave evidence about their financial circumstances, the regards in which there had been errors were not large in scope. Although, particularly as educated men, they could have been more careful, I did not form the impression that either of them was attempting to mislead or deceive the Court. I did not have any great difficulty on the evidence in accepting the facts as to their financial circumstances as set out above. The plaintiff's wife I found an impressive witness. Her recollection appeared to be generally good and she gave her evidence in a forthright manner. I found her evidence of assistance in resolving some of the comparatively few real issues of fact in the case.
The Law
22 A majority of the High Court (Mason CJ, Deane and McHugh JJ) said in Singer v Berghouse (1994) 181 CLR 201 (at 208 - 209) that the Court, in determining an application for provision under the FPA, is required by ss 7 and 9 to carry out a two stage process. The first stage requires a determination "whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life". The second stage, which arises if that determination be made in favour of the applicant, is "to decide what provision ought to be made out of the deceased's estate for the applicant". The determination of the first stage "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". The correct view of the first stage is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The second question involves an exercise of discretion in the accepted sense, although that discretion must, of course, be exercised judicially. That majority of the High Court disapproved the use in determining these questions of reference to the concepts of "moral duty" or "moral obligation", or even the use of those terms, since this might be thought to place a gloss upon the statute. Whilst there has been some debate as to whether or not that view was an obiter dictum only, the Court of Appeal has since determined, despite the eloquent dissent of Handley JA, that that expression of opinion ought be taken in this Court as the binding view of the High Court upon this subject matter: see Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24; Massingham v Massingham NSWCA 27 June 1996 unreported. The matter was revisited in the High Court in Vigolo v Bostin (2005) 221 CLR 191. Gleeson CJ at [25] doubted that there was any vice in references to "moral duty", provided it was regarded as a form of shorthand and not allowed to operate as a gloss upon the statute. Gummow and Hayne JJ in their joint judgment at [73] thought it "better to forgo any convenience that these shorthand expressions may offer in favour of adherence to the relevant statutory language". All three of those judges, constituting a majority of the High Court, shared the view that Singer v Berghouse should be taken as an appropriate guide to the construction and operation of family provision legislation: see [5] and [73].
23 I shall approach the matter as prescribed in Singer v Berghouse. This being a claim of an adult child of the testator, I shall simply carry out the two stage process in relation to the plaintiff in the context of this family and this estate. The appellate Courts have negatived that there is any "special" test or approach to the process in the case of adult children, as opposed to other persons with a claim: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; Hunter v Hunter (1987) 8 NSWLR 573; Vigolo v Bostin supra at [26].
24 The proper approach to a claim by an adult child received close consideration by Bryson J, as his Honour then was, in Gorton v Parks (1989) 17 NSWLR 1. His Honour (at 10) regarded "the bare fact of paternity" as of very great importance in "morality" (using that word before the subsequent strictures of the High Court). But, as to the bare fact of parenthood, without detracting from what Bryson J said, it must be remembered that Meagher JA had previously said in Hughes v Hughes NSWCA 6 June 1989 unreported, that the duty to make provision arose in the circumstances of 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."
25 In Walker v Walker NSWSC 17 May 1996 unreported, Young J, as his Honour then was, conducted a compendious review of the authorities relating to estranged parents and children and said:
"…. 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. 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 [ The Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9] at 19."