James v James James v James [2007] NSWSC 968 (30 August 2007)

Last Updated: 12 September 2007

NEW SOUTH WALES SUPREME COURT

CITATION: James v James James v James [2007] NSWSC 968


JURISDICTION: Equity Division

FILE NUMBER(S): 3964 of 2005
3482 of 2006

HEARING DATE{S): 29/08/07 30/08/07

JUDGMENT DATE: 30 August 2007
EX TEMPORE DATE: 30 August 2007

PARTIES:
Ron Raymond James & 4 ors v Lee-Anne Iris James
Shoron Lee James v Lee-Anne Iris James

JUDGMENT OF: Associate Justice Macready

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable



COUNSEL:
Mr P. Doyle-Gray for plaintiffs in 3964/2005
Mr R. Horsley for plaintiff in 3482/2006
Mr A.L. Hill for defendant

SOLICITORS:
Atkinson Vinden Heazlewood - plaintiffs in 3964/2005
GPN Law for plaintiff in 3482/2006
Villari & Co Lawyers for defendant


CATCHWORDS:
Family Provision. Application under Family Provision Act by six of seven children of deceased who were left out of deceased's will. Estate left to one child. Difficult family circumstances. Orders made in favour of all seven children.

LEGISLATION CITED:


CASES CITED:


DECISION:
Paragraph 114


JUDGMENT:

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

THURSDAY 30 AUGUST 2007

3964/05 RON RAYMOND JAMES and ORS v LEE-ANNE IRIS JAMES
3482/06 SHARON LEE JAMES v LEE-ANNE IRIS JAMES

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Iris James who died on 30 May 2005 aged 71 years. The deceased husband pre-deceased her and she was survived by her seven children: six are plaintiffs and one is the defendant in both matters, which have been heard together with the evidence in one as evidence in the other.

The last will of the deceased

2 The deceased made her last will on 1 December 2003, under which she appointed her daughter, Lee-Anne James, as executrix and gave her the whole of the estate.

3 Under clause 6 of that will the deceased included the following:

“6. My reason for leaving my estate to Lee Ann is because she is the only child to have cared for me and assisted me during my sickness and infirmity.”

The Estate of the Deceased

4 This comprised the deceased’s home in Balmain which has not yet been sold, some cash and furniture. The present position about the estate seems to be as follows:

Real estate at 5 Reynolds Street, Balmain $718,000
Cash in Commonwealth Bank accounts $50,742
Household and personal items $6,275
Income since date of death $1,038

5 The liabilities incurred since the date of death are $34,673, leaving a balance of $741,383.

6 There is also another liability to the solicitor for the costs of the estate to defend the probate suit to which I will refer later. As there are orders extant for payment of those costs by the plaintiffs in one of the actions, that can be taken into account and I assume that will be paid probably out of amounts awarded to be paid in these proceedings.

7 Costs have a large impact on this estate. The estimates of costs for a case which ultimately turned out to be only a two-day case was as follows:

The defendant’s costs $78,381
The five plaintiffs in 3964/05 $114,699
The plaintiff’s costs in 3482/06 $27,500

A total of $220,780.

8 This leaves a net distributable estate of some $520,603. There are, however, selling costs and accordingly one could expect that the net estate after those selling costs would be in the order of $500,000.

Family History

9 The deceased was born on 11 November, 1933. The evidence does not recount when she married but she and her husband had seven children inside seven years. They were the following:

Ron Raymond James born 13 October 1962
Allan Ross James born 25 March 1964
Sharon Lee James born 17 May 1965
Jennifer Anne James born 18 September 1967
Twins, David Munroe James and Joanne Phyllis Fa’Afua born 2 March 1970.
Lee-Anne Iris James born 6 August 1971.

10 They lived in the Balmain house and all children attended the local Balmain public school.

11 The deceased husband died, aged 38 years, in January 1978. Shortly thereafter on 6 February 1978 she made a will in which she left all of her estate to her children equally.

12 A family friend of the deceased and her husband, Bill Martin, came to live with the deceased after her husband died. They lived in a de facto relationship for some time. He had been in 1975 convicted of indecent assault on both Sharon and Jennifer James when they were very young girls. Those events took place at the deceased and her husband’s home.

13 As I have mentioned, the deceased changed her will and made her last will on 1 December 2003. On 19 December 2003, she appointed the defendant her attorney, under a general power of attorney, and her guardian pursuant to section 6 of the Guardianship Act 1987. The deceased died on 30 May 2005 and probate was granted on 13 July of that year.

14 The plaintiffs in suit number 3964/05 filed probate proceedings on 20 July 2005. In August they commenced their Family Provision Act proceedings. The Family Provision Act proceedings of Sharon were commenced on 29 June 2006. In the May 2007 the probate revocation suit number 4041/05 was settled, the statement of claim was dismissed and the plaintiffs were ordered to pay the defendant’s costs.

Eligibility

15 All children are eligible persons.

16 In applications under the Family Provision Act the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

“The first question is, was the provision (if any) made for the applicant inadequate for (his or her) proper maintenance, education and advancement in life? The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc were explained in Bosch v Perpetual Trustee Co Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or 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 determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a Court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonable be made and making an order could disturb the testator’s arrangements to pay creditors”.

As directed by High Court I turn to consider the situation in life of each of the plaintiffs.


The first plaintiff, Ron Raymond James

17 Ron is presently aged 45 years and is separated from his wife. Although he has two children he has no dependants. He is employed on a contract basis by Rubbish Packet Pty Ltd earning some $400 a week. He works as a Garbo between two and four days a week.

18 His assets consist of a motor vehicle, which he purchased for $3,500 in August 2006. He obtained a loan in order to do so and has since repaid the loan. He has superannuation of $18,745. He is presently contemplating divorce proceedings with his wife.

19 His weekly expenses were recently $372; however, a week or so ago he moved in to live with his brother, which relieved him of some of those expenses. He will move out very shortly and he hopes to do what he has done before, which is live in minimal accommodation, moving to a hotel room and live in a single room with shared facilities. Before his last move he was sharing with two other divorced men.

20 He, like each of his other co-plaintiffs, owes the estate and his own solicitor sums for costs in respect of the failed probate suit. The amount is in the order of $7,107 owed to the estate, and $3,543 to his own solicitor.
The second plaintiff, Allan Ross James

21 Allen is presently aged 43 years and he is single with no dependants. He is presently unemployed, having recently resigned from Simon Johnston where he was earning approximately $610 per week or $42,000 per annum.

22 Presently he receives Centre Link payments of $430 per fortnight, has minimal superannuation, having to use what superannuation he had formally to set up a business venture in Orange which filed. He has effectively no assets, apart from some litigation, to which I will refer in a moment. He says he owes his sister a debt of $5,000, and that is a long time ago, although he says he paid it off. It seems that that would be statute barred.

23 He also says he has a debt to Fay Butler which totalled $40,000. The loan agreement states that the amount was to be repaid within 12 months, ie by 16 August 2005, but this has not occurred due to the failure of his business in Orange. Because of the circumstances that occurred thereafter Ron has received nothing from the business and he still owes this amount. He also has his liabilities for costs in relation to the failed probate suit.

24 The Orange business was one which he set up and, unfortunately for Allen, when he was late by three days in making payment to the National Australia Bank on his BMW car, the vehicle was repossessed. It was at that stage that others having an interest in the business, or claims on the business apparently recovered all the items in the shop, taking items such as shop fittings etc and the business premises were stripped.

25 He says he is taking proceedings against the Bank and he claims he has lost some $400,000 in assets. The state at which these proceedings have reached is not in evidence. He concedes that the Bank was probably entitled to recover the car. There seems to be some claim for some other amount in respect of the stripping of his property.

26 Litigation is a challenging business. It would be for him to put the evidence before the Court. It is apparent that there has been no advice yet given to him as to how much he is likely to get. His lawyer apparently is somewhat optimistic but not to the extent of expressing a figure.

27 In these circumstances, knowing the difficulties with litigation and the situation he is in, he may well have great difficulty in trying to recover some amount. Basically, one cannot take a firm view as to what the likelihood of recovery will be, and it is likely to take place sometime in the future if it ever does occur.

The third plaintiff Jennifer Anne James

28 Jennifer was born on 9 November 1987,and is presently aged 19 years. She She is working part time and producing some funds. She has children; Paige was born on 19 January 1990 and is presented aged 17 years. He is completing his schooling. The youngest child, Dylan, was born on 14 January 2004 and is presently aged three years.

29 Jennifer is employed at Westmead hospital as an enrolled nurse with an income of $980 per week. She has superannuation of $23,176. Unfortunately for Jennifer, she separated from Dylan’s father, Peter Crandles, who is a self-employed electrician. She has not made a claim against him. There is nothing in evidence to suggest that she would have a valid claim worth pursuing.

30 She has a motor vehicle, for which she paid $1,100 in November of 2006. At the moment she has $4,760 in her bank account. She has debts of $10,960 owing to MasterCard, and a debt of $7,000 which I accept she owes to her estranged husband Peter Crandles. She also has debts relating to the probate suit.

The fourth plaintiff, David Munro James

31 David is presently aged 37 years and has recently separated from his wife, she having responsibility for their two young children. At the end of 2006 their home was sold in an informal property settlement. His wife has kept the equity in the property and that is approximately $140,000. He lives in a small unit at 4/28 Dunmore Street, Croydon Park. This property is held via a Trust Company for the plaintiff’s benefit. It is valued at $300,000 and is subject to a mortgage of $269,000. He obtains income from his business, James David & Associates which does contract painting.

32 There is some debate about the accuracy of the document put forward. However, it seems to me that the income tax returns show a minimal profit of some $25,767.39.

33 He has been criticised because he still has three motor vehicles in his name: he has a Grand Cherokee sedan, a 2003 model, purchased in 2005 for $50,000 and that is used by his wife. He has a Volkswagen Transporter, a 2001 model, purchased in 2004 for $35,000; and there is a Mercedes 230 S1K, a 2001 model, purchased in 2004 for over $70,000, or $84,146.23. All vehicles are subject to finance which in general exceeds the present value of the vehicles. He has been endeavouring to sell the Mercedes but without success.

34 He also during his recent years purchased for his wife a beauty salon. He borrowed $42,000 for that, and borrowed $45,000 for a tanning booth to set that up as part of the business. He is involved in a case with his former business partner. He is still responsible for repaying debts of some $28,000 which are still outstanding in respect of his wife’s failed business.

35 The various liabilities he and his various companies have come to an amount of $196,495. They involve numerous borrowings and credit card debts. It also involves costs in respect of litigation because he is being sued by a former business partner in respect of the profit share in their former joint business. That litigation has not been resolved and the further chances of litigation are real if that cannot be settled.

36 Recently his wife has been diagnosed with a brain tumour and she will be operated on in about two weeks. If anything happens to her he wishes to take over care of his two young children.

37 At present he is drawing $500 a week from his business. He pays $250 a week to his wife. His business also pays the expenses of his home and his cars. He has recently gradually reduced the extent of his business. He is down to one employee and he is working up to 12 hours a day to try and keep afloat in his business. He obviously has substantial debts.

The fifth plaintiff, Joanne Phyllis Fa’Afua

38 The fifth plaintiff is Joanne Phyllis Fa’Afua. Joanne is presently 37 years of age and lives with her husband and they have four children, they being Jacob born on 28 August 1989; Ashley, born on the 10 September 1990; Naomi born on the 18 September 1992; and Raychele born on 10 June 1994. They also look after another child, which is aged 15 years, because the child's parents are living in New Zealand.

39 Joanne lives with her husband, Gary, in rented premises at 22 Kenyon Road, Bexley. In her affidavit sworn 31 July 2007 she refers to her husband's income and she said that her husband is self-employed and his earnings vary from year to year. Annexed to her affidavit are her husband's individual tax returns for the years 30 June 2003 to 30 June 2006 and these show an income range for them of between $10,950 and $16, 466, that being the taxable income.

40 Her current taxable income is $58,089 gross per annum. She is in a managerial position with McDonald's and has obviously worked her way up to this successful position by hard work. She said she has expenses of $1,891 a week which would be a sum of $98,332 per annum. This makes it likely that her husband probably has something in the order of $700 per week as a take-home pay, otherwise they would be going out backwards.

41 She has a 1999 model Holden Commodore which she purchased in February 2006 and that is worth $9,350. She has superannuation of $22,271, and her husband's superannuation is unknown. They have debts of $33,005 together with, of course, debts in respect of the failed probate proceedings.

The sixth plaintiff, Sharon Lee James

42 Sharon is aged 42 years and is in receipt of a disability pension of $575.75 per fortnight. She lives in a Housing Commission unit at Balmain and has a vehicle, furniture and jewellery which she values at approximately $10,500. She also has cash reserves of some $19,714. She has shares valued in the sum of $4,000. I mentioned the debt which her brother Allan owed to her, which is probably now statute barred. Her living expenses are $155 a week and she has debts in the sum of $8,000. Fortunately for her she did not participate in the probate proceedings.

43 The situation in respect of her health is difficult. There are reports from Dr Ramrakha which set out in detail her problems. Her substantial problem is what has been diagnosed as schizophrenia, and the evidence indicates that psychotic episodes have occurred. She has problems with her spine which cause her serious difficulties. She has cervical spine spondylitis with nerve root compression. She has had one kidney removed as a result of cancer. She has thoracic spondylosis with various general degeneration. This leads to pain at many spinal levels. She suffers from osteoarthritis and plainly these conditions caused her great difficulty, she cannot work, and has no opportunity of obtaining work. Indeed, she has not worked for many years.

44 The doctor describes her mental condition as most significant and it affects all aspects of her life. She has had a number of hospital admissions and is on high doses of anti-psychotic drugs. Her condition varies enormously depending on the circumstances. Clearly, life is very difficult for her.

45 It is also necessary to consider the position of anyone else having a claim on the bounty of the deceased. In this case the only person is the defendant.

The defendant Lee-Anne Iris James

46 The defendant is presently 36 years of age, single with a son, Ross, who is 19 years of age and lives at home with his mother. The defendant receives a disability pension of $260 a week and her son Ross pays her $50 a week for board, this giving her an income of $310 per week. They both reside in a Housing Commission unit for which they pay $90 per week.

47 The defendant has some household furniture which needs replacing, and owns a 1970 model Ford Laser motor vehicle. She suffers, unfortunately, from Psoriasis, which is a condition which affects her and covers her body. More importantly, she suffers from a medical psychiatric condition known as Bipolar Disorder.

48 Dr Roberts, a psychiatrist, gave evidence of her condition and in his summary and opinion he has indicated that she presented with a history of major depression associated with substance abuse and symptoms consistent with her diagnosis of personality disorder. He referred to her being a victim of a home invasion and says she does have some response in terms of anti-depressants. He has a very guarded view for her, having regard to her substance abuse and reliability, as to what her prognosis would be.

49 Dr Roberts also referred to her destructive inter- personal relationships, which have affected her management. Plainly, she has difficulties and these difficulties have been accepted because she is on a disability pension.

50 The defendant is in a situation where she has had to stop buying clothes and personal items because things are quite difficult for her.

51 It is necessary to consider the relationship between the various plaintiffs and the deceased, particularly bearing in mind the deceased's declaration in clause 6 of will.

52 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.”

53 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 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] HCA 2; (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin JJ 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 that 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.”

54 Meagher JA (NSWLR at 57) agreed with Priestley JA.

55 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.” (Emphasis added)

56 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

57 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 questions 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] HCA 14; (1980) 144 CLR 431; and in Goodman v Windeyer [1980] HCA 31; (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.”

58 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. 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.”

59 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales’ case) [1962] HCA 19; (1962) 107 CLR 9. Scales’ case was a claim by an adult son, who was unsuccessful, 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.”

60 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.”

61 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. ...”


62 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 sixty-eight 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 p 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 provision. 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.”


63 Young J also observed:

“In Fraser’s case, Kirby P at p 29 said that ‘I do not consider that it would be safe for this court, or other courts in this State, to disregard the obiter 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 (p 27).’

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] HCA 23; (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 p 42, ‘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 sufficiently 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.”

64 The concerns expressed about any change in the law as a result of Singer v Berghouse were recently put to rest by the High Court in Vigolo v Bostin [2005] HCA 11 at 25, 74-75 and 121.

65 In Walker v Walker (p27) 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 showed 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....”

66 These words were recently approved by Ipp J in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 when he said:

“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 (p) of the definition of "eligible person" in S6(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."

67 As was said in submissions, family life was brutal and tragic. The deceased's husband was, in my view, brutal to the children and her de facto partner and as well as being brutal he was an alcoholic.

68 The evidence revealed that during the period before the deceased husband died the children were frequently beaten with a leather strap. It was not unusual for the husband to come home and he would line up the children if something had been done wrong and beat all six of them with a leather strap until someone confessed.

69 There is evidence that the eldest son, Ron, was bound to his bed and beaten. He was regularly threatened by his father. His father threatened him and there is evidence to this effect by other siblings.

70 Life was not always easy in that food was in short supply. Allen deposed to an incident on his birthday when he ate raw bacon out of hunger and was beaten. A mouse trap was set around the children's cereal containers overnight. Jennifer recalls eating cereal for breakfast with water because there was no milk.

71 Education was not important. The late Iris James discouraged the children from pursuing an education beyond year 10 and insisted that throughout adolescence and beyond that they not only secure employment but also that they pay most of their earnings to her as board. It was in the difficult circumstances that the deceased found herself that she encouraged the children to leave school. They certainly were not encouraged to stay on. Apparently the deceased was from time to time moody and there is evidence of her throwing things, including knives, at the children.

72 The treatment of the son Allan by the deceased is unfortunate and exemplifies the attitude which occurred at that time. Allan was homosexual and when as an adolescent at school he disclosed to his mother his homosexuality, he was thrown out of the house, his mother calling him ‘an animal’. She prevented him from retrieving any belongings from home, leaving him with only what he stood in, and encouraged friends who took Allan in to expel him from their household on the grounds of his sexual orientation. She in fact went and attempted to dissuade friends from giving him succour.

73 There was then the occasion of the sexual molestation of Jennifer and Sharon. It is quite clear Bill Martin molested the girls and was convicted of indecent assault. After their father’s death, Iris James commenced an intimate relationship with Bill Martin, notwithstanding that he had sexually molested two of her daughters, and invited Mr Martin into her home where they resided as a de facto couple. Both Jennifer and Sharon found it difficult and the distress to them occasioned by this arrangement was ignored.

74 Ultimately the not unexpected happened, the children were either expelled from the house for bad behaviour or they left of their own volition.

75 Their relationships have not been successful. There were a number of early pregnancies and failed relationships. Their schooling was not successful beyond year 10, only one child attempting year 11 and was unable to complete that year.

76 I have no doubt that trying to bring up a family of seven children all born so close together would have been very trying, and plainly there would not have been much money to go around. This would have been even more so if the deceased was alone and looking after the children herself.

77 It was not unnatural in those circumstances that the children would be asked to contribute to the household expenses.

78 Evidence was given by Mr Forster, the solicitor who prepared the deceased will. He gave evidence of conversations which he had with the deceased in order to satisfy himself as to the testamentary capacity of what she was doing was appropriate. It turns out a number of things she said to him were quite wrong on the evidence before me. She stated her husband “died several years ago” and by this time it was at least 20 years ago. She described her husband as a good husband and father. However, on the evidence before me I would not accept that. Whether time dimmed memory or there were difficulties with recollection that caused this I do not know.

79 She asserted she was only in contact with Lee-Anne and had not seen the other children for many years. Even on the defendants case this is not right. But it is plain on the evidence before me there was contact with the other children in recent years. It might not have been in the presence of Sharon or Lee-Anne, but it certainly occurred.

80 She asserted she never had contact with any of the grand-children, but plainly that was wrong. She saw Ross, and the evidence is she also saw other grand-children. Her difficulties in the way she treated her other grand-children meant it was not as frequent as it could be.

81 It is plain from other evidence the deceased suffered significant memory problems in the latter part of her life and accordingly no weight can be given to the statement in clause 6 of the will.

82 I want to deal with some other matters. In relation to Ron, the eldest, there was a break in the relationship between his wife and the deceased. They had a stand-up argument about ten years before the deceased’s death, but that still did not stop him from making contact.

83 So far as Allan is concerned, I have recounted his early times and his expulsion from the home. He obviously had some rapprochement in later years and he gave evidence that in 2003 that he arranged for carers to attend on his mother seven days a week. He paid $120 a week for eight weeks until his mother, as is not unusual with people at that time of life, decided she did not need this assistance.

84 Sharon apparently could be quite threatening at times and when he, like his brother, made efforts to see his mother when she was not very well, he was rebuffed by her.

85 Another kind of difficulty he had arose from the defendant mentioning to the others that he was dead.

86 Jennifer was thrown out of home when she was 13. She was in and out of home a great deal, and she finally left at age 17.

87 In later life it is obvious there was contact and assistance provided by her to the deceased. Her contact with her mother was also affected by Sharon’s conduct.

88 Lee-Anne left home when she was 17 years of age. She kept contact although the deceased showed some difficulties towards her. She last saw the deceased in 2002 and was in contact by telephone thereafter. Over the years she had given her mother help with money when it was needed, and looked after her when she came out of hospital.

89 So far as David is concerned he, much like the others, left home. He kept in touch in a number of ways. He arranged repair work on the house when it had to be carried out, and he arranged to pay for the shortfall when it was called for. He visited the deceased in hospital, and also at home.

90 Sharon moved out when she was 16 years. On her own evidence she started smoking ‘pot’ at that stage. Eventually she had a failed relationship in 1997, and on her evidence she had problems with drinking and substance abuse. In 2001 she was diagnosed with schizophrenia. She gives very little evidence of contact in any great detail, but one finds other evidence from her siblings as to the obvious difficult times she had and the somewhat chaotic state of things from time to time.

91 Lee-Anne James had a child when she was 16; that is her son Ross. They both lived at home for a few years before she moved out. Even after then her mother would care for Ross when Lee-Anne would drop him off to look after him. In 2000 she suffered an unfortunate home invasion and was then diagnosed with Bi-polar disorder as I have earlier mentioned.

92 The difficulties which the children suffered during their upbringing were real, and it is surprising to me that, notwithstanding this, and difficulties caused to both Sharon and Lee-Anne, they still maintained contact with the deceased to the extent that each of them did. Nothing in the evidence would lead me to refuse or reduce any claim by any of the plaintiffs because of this aspect and difficulties. It is just simply a very difficult upbringing which is now history.

93 It is necessary to see how each of the plaintiffs has been left without adequate and proper provision for their maintenance, education and advancement in life.

94 I turn to the situation of Ron. Ron is in very modest circumstances. He has no assets, except a second-hand motor vehicle which was purchased for a modest sum. He expresses a wish that he would like to have money for a deposit on a home unit. He, like others who have expressed this desire, has given no evidence of what would be the appropriate costs of a unit and how he might possibly service a loan for that unit. On his present income it would be unlikely that he would be able to afford a unit.

95 His income earning ability, in my view, is limited. He had a life in the navy, which did not fit him to any particular trade. He worked in various areas where he was working on assembly of mobile towers and the like and in more recent years he had been working in a labouring position.

96 He is 45 years of age and it does not strike me that he is a person who is now in a position where he can substantially improve his life. His accommodation since the break-up of his marriage indicates where he is at. He has had to live in shared accommodation, single rooms in a hotel and is presently living with his brother on his brother’s generosity.

97 In my view it is unlikely he will have a very substantial increase in his ability to work. His hopes - which are nothing more than that - of perhaps acquiring a business if it becomes available are very problematic. He needs money to be able to set up. He does not have any assets of any substance. At least he should have some reasonable place to live rather than living in a hotel room, and he needs something behind him if he is going to have any further opportunity to better himself.

98 Allan also expressed the view that he would want a unit. He also is in a very problematic situation, like his older brother. He has debts of $40,000 to pay. He has to set himself up in accommodation again. He is relying on a friend and his right to remain there is strictly limited. He cannot stay there indefinitely. Although he is getting some money from Centre Link, he needs something to tide himself over to try and improve his employment situation. I think it is likely he will obtain employment but it may take sometime.

99 So far as his prospect of recovering a large amount of money from Orange, I take a very sanguine view about that as I have earlier indicated.

100 Jennifer is in a different situation because she is the substantial breadwinner in the family. She finds it very hard to get shift work. She has debts of some $18,000 that she needs to repay. She also want to buy a unit but there would be little really that she could do because she would not be able to finance it without some substantial amount.

101 Jennifer needs counselling, which will cost $3,000. Importantly for her she wants to advance herself in her education. It is something she can do. She is an enrolled nurse and she wants to train to be a fully qualified nurse. That will cost some $30,000 but will obviously cost other amounts for support when she is trying to support her children during her retraining. It is a real need notwithstanding that she has young children to look after.

102 Joanne is one who has been more successful. However, she still lives in rented accommodation. She and her husband have debts of $26,309. She would like to purchase a unit and if anyone is able to she is possibly the one that might. Whether she could has not really been investigated, on the evidence. She is in a situation where she has to work hard to look after all the children for which they have a responsibility. It will be some years before they are off their hands.

103 David’s situation is different. He has a large amount of debts which amount to $196,495. He obviously could pay out part of these and he has a substantial mortgage at $296,000 on his unit. He has the possibility he may have to look after his children if his wife cannot do so after her operation.

104 David has been criticised for the amount of debts that he has. There is no doubt that he has a larger number of debts. He is criticised for having a number of motor vehicles but it seems to me he was probably in a situation where he tried to provide for his wife and borrowed to set her up in business. He attempted a number of things in his marriage which unfortunately have failed. The fact of the matter is it has failed and he has ended up with these debts and he has those responsibilities. His net assets are some $30,000. As I say, his situation is different.

105 David probably can continue with work and it seems he is trying to work very hard, working substantially long hours and is taking a more realistic view of his business. He might be able to survive but some help would assist him in surviving.

106 Sharon has debts of some $8,000, but also has some assets. Her car needs repairs and these will cost $2,500. It is an old car and it is not worth doing that work. Probably it would be appropriate for her to have a fund so she could buy a new car, or a second hand car which would provide help to her so she could get around. Plainly, although there is no evidence of the extent of this, she needs a fund for contingencies. Her life is uncertain and she has problems. Provision should be made to help her.

107 A consideration of the financial situation of each plaintiff shows each has a need for provision, and leaving aside the desires to purchase a house, they all need funds to provide some buffer and for contingencies. Many have debts that need to be discharged and have obvious other things, such as car repairs, retraining and matters like that that need to be accommodated.

108 Lee-Anne is in a similar situation and has needs for the future. She suffers from a very debilitating psychiatric illness and she has a need.

109 Of all of the children, Joanne is the only one who still has the support of her partner, but she has to fulfil the role of breadwinner and she has five children presently at home.

110 David has a very small equity in his unit but his advantages in this regard, and his advantages in his future prospects, are also outweighed by his very large debt and his precarious business situation.

111 Allan still has uncertainty of litigation hanging over him and further expenses caused as a result of the dispute with his former business partner. There are also other uncertainties with which he is faced.

112 There is only $500,000 left in this the state after costs. The needs of the children of the deceased are all pressing. This is one of those cases where the estate is not large enough to provide for everyone’s needs.

113 Although it is unusual, it does seem to me that a consideration of the very varied and different relevant needs of each child and their own different financial circumstances leads me to the conclusion that the estate should be shared between the children on an equal basis. Minor adjustments might be made to achieve a more accurate result but this is very difficult because the extent of the needs cannot be accurately quantified in evidence.

114 One has to take a realistic view of needs one might have in life and the contingencies to which life is subject. Accordingly, I propose to make these orders:

1. In lieu of the provision in the will of the deceased that the estate of the deceased should pass to the defendant, Lee Ann Iris James, I order that the estate of the deceased pass to the seven children of the deceased equally.
2. I order that the plaintiffs’ costs on an ordinary basis and the defendant’s costs on an indemnity basis be paid or retained out of the estate of the deceased.
3. I make no order as to interest.
4. I order the exhibits to be returned.

(Counsel addressed on the question of costs)

115 There has been tendered a letter dated 18 July 2005 from the plaintiffs to the defendant in matter 3964/05 offering to settle the matter on the basis that the plaintiffs each received one-seventh share of the estate and that the defendant’s costs be paid on an indemnity basis and the plaintiffs’ costs on a party and party basis.

116 As a result, that has led to an application that the plaintiffs’ costs of these proceedings should be paid on an indemnity basis. That in turn has prompted a response from the plaintiff, Sharon, that if that is the case and the Court was minded to make that order, that it should be on the basis that the defendant should bear those costs from her share.

117 I find it difficult in these circumstances to form a real view about the appropriateness of such an order for the plaintiffs. Plainly, the plaintiffs were going to be successful and they did obtain an order. I know the Rules normally provide that there should be such an order for indemnity costs. However, in the circumstances, and having regard to the amount of the estate, I do not propose to order that the costs be on an indemnity basis.

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LAST UPDATED: 11 September 2007