Harris v Carter

HIS HONOUR: Christopher John Carter (the deceased) died on 18 March 2018, aged 39 years. He was survived by his minor son, Lachlan Daniel Harris (the Plaintiff), who was born in April 2006, and by his parents, Robin Walter Carter and Joan Mary Carter (the Defendants).

These proceedings were commenced by Summons filed on 14 March 2019. The tutor of the Plaintiff is Susan Usherwood. She signed a Consent to Act as Tutor on 13 March 2019 in which her solicitor on the record certified that Ms Usherwood did “not have an interest in the proceedings adverse to the interests of” the Plaintiff. Her relationship, if any, to the Plaintiff, was not elucidated in any of her affidavits. All that she wrote was that she visited the Plaintiff and his mother, Lisa Jane Harris, “regularly”: Affidavit, Susan Usherwood, 18 October 2019 at par 21.

Ms Usherwood did not attend the hearing on behalf of the Plaintiff. No reason for her non-attendance was proffered, other than it being stated that she had not been required for cross-examination. Mr L J Ellison SC, who appeared for the Plaintiff, informed the Court that she could be contacted by telephone if that were necessary.

In the Summons, the Plaintiff sought a family provision order out of the estate of the deceased pursuant to Chapter 3 of the Succession Act 2006 (NSW) (the Act) and that his costs should be paid out of the estate. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person.

As stated, the biological mother of the Plaintiff is Lisa Jane Harris. She commenced her own proceedings, in which she sought a family provision order, which proceedings were resolved, consensually, with final orders being made by this Court in June 2019. Pursuant to those orders, Ms Harris received a lump sum of $110,000, out of the estate of the deceased. No order for her costs was made, with the intention that she would pay her own costs of those proceedings. The Defendants’ costs of those proceedings, calculated on the indemnity basis, were ordered to be paid, or retained, as the case may be, out of the estate of the deceased.

In accordance with the usual practice in the Family Provision List, involving different proceedings in relation to the estate of the same deceased person, notice of the terms of the settlement of Ms Harris’ proceedings was given to the legal representatives of the Plaintiff in these proceedings. This course is followed, first, because any distribution in accordance with the Court’s orders in one proceedings will reduce the value of the estate of the deceased available at the time of the determination of the other proceedings; and, second, in order to avoid the recipient of the distribution made pursuant to the court order in one proceedings being joined as a defendant in the other proceedings, as the holder of property that may be designated as notional estate: s 79 of the Act.

The legal representatives of the Plaintiff in these proceedings consented to orders being made in settlement of Ms Harris’ proceedings. Thus, as will be shown, the value of the estate available, at the date of the hearing of the current proceedings, was reduced by satisfying the orders that were made in the proceedings commenced by Ms Harris.

Naturally, in her proceedings, the fact that Ms Harris is the mother of the Plaintiff in these proceedings was a relevant matter in determining whether the Court should make the family provision order that had been agreed to, in her favour. Adequate provision for her maintenance and advancement in life, also, would have been assessed by the parties, having regard to her obligation to support the Plaintiff in these proceedings.

Ms Harris was present in Court throughout the hearing of the proceedings, and as there were a number of affidavits made by her that were read, she was cross-examined.

Of the Defendants, only the second Defendant (the mother of the deceased) had sworn affidavits that were read in the proceedings and she was cross-examined, albeit briefly. However, both Defendants were in attendance in Court throughout the hearing.

Following completion of the evidence and the oral submissions, I informed the parties that I did not wish to delay them knowing the result of the proceedings, because of the long vacation, and that I would announce the Court’s decision following a short adjournment. Upon my return, I ordered that the Plaintiff’s Summons should be dismissed. I informed the parties that I would publish my reasons as soon as I was able. These are the reasons for dismissing the proceedings.

Subsequently, counsel for the Defendants, without objection, handed up an Offer of Compromise. I shall refer to this document later in these reasons and the consequences that flow from the offer made on their behalf to the Plaintiff, which offer was not accepted, or which lapsed through effluxion of time.

Before, and at, the hearing, Mr Ellison SC appeared for the Plaintiff and Mr C A Vindin appeared for the Defendants. The hearing was able to be completed within one day.

In this case, as will be read, the Plaintiff’s legal representatives, including senior counsel, conducted the Plaintiff’s case on the basis of a contingent costs agreement. I suspect that, unnecessarily, and unintentionally, this may have fuelled the expectations of those involved, on the part of the Plaintiff, thereby causing disappointment, and hardship, to the parties.

On 1 August 2018, this Court granted Probate of the deceased’s last Will, dated 5 March 2010, to both of the Defendants.

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. As the child of the deceased, the Plaintiff is an eligible person within s 57(1)(c) of the Act.

The Plaintiff commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

As the deceased left a Will that dealt with all of his property, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5). “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act. In this case, there is no property that is sought to be designated as notional estate of the deceased.

The Defendants do not seek any commission, or percentage, for their pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

The only eligible persons in respect of the deceased are the Plaintiff and Ms Harris. Ms Harris has made a claim that has been dealt with and now the Plaintiff’s claim for a family provision order is being dealt with.

As will be read, the bulk of the deceased’s estate passes to the Defendants, neither of whom asserts that he, or she, respectively, is an eligible person within the meaning of that term in the Act.

It is next convenient to set out some background facts that are not the subject of any dispute between the parties. To the extent that any are in dispute, what follows should be regarded as the findings of the Court. These facts are necessary for the decision that was reached.

The deceased was born in December 1978.

Ms Harris was born in May 1979 and is currently 40 years of age.

Prior to his death, the deceased served, full time, in the Royal Australian Navy, often on active duty overseas. He was never married. Nor did he have any long-term de facto relationship. He did, however, in 2005, have a relationship with Ms Harris, who, as a result of the relationship, gave birth to the Plaintiff, who will be 14 years old in April 2020.

Ms Harris gave written evidence, in her proceedings, which evidence, with the leave of the Court, was read in these proceedings, that she knew the deceased “as a friend” for 1.5 years and that her de facto relationship with him was for about 8 months. She stated that she would stay with the deceased, at his home, two or three times per week. (There is some dispute about the nature and duration of the relationship, but that dispute does not need to be resolved for the purposes of these proceedings, as even on her case, the relationship between her and the deceased was a brief one. Following its termination, it appears that they had no further face to face contact.)

The deceased terminated the relationship shortly after Ms Harris informed him of her choice to carry her pregnancy to full-term and become a mother.

Following the termination of the relationship, Ms Harris moved out of Sydney and went to live on the far South Coast of New South Wales “to be closer to my mother so that I had support when the child was born”.

Ms Harris, subsequently, informed the deceased about the birth of the Plaintiff. There is evidence that in January 2009 she sent some photographs of the Plaintiff, under cover of an email written to him, and that she and the deceased had a telephone conversation, followed by an email sent by her to him, in November 2009. There was no written evidence of a response from the deceased. However, Ms Harris averred, in her affidavit dated 18 October 2019, at par 25, that, in relation to the January 2009 email:

Initially, the deceased did not voluntarily acknowledge the paternity of the Plaintiff. Apparently, pursuant to an order of the Family Court, in late 2007, parentage testing, being DNA typing, occurred, and, in December 2007, Genetic Technologies Corporation Pty Ltd, in a Parentage Testing Procedure Report, stated that the “Relative Chance of Paternity” (of the child) was 99.999999%.

As she was legally entitled to do, and because she was receiving Centrelink benefits, Ms Harris sought child support. She applied through the Child Support Agency (now jointly administered by the Department of Human Services and the Department of Social Services). As the deceased was required to, he did pay the assessed amount (about $9,955, per year), by way of child support for the Plaintiff. There is no suggestion that he did not comply with his financial obligations, in that regard, during his lifetime.

The deceased, however, never met, or otherwise had anything to do with, the Plaintiff. He maintained his decision to not have a relationship during the almost twelve years after the Plaintiff’s birth.

The Defendants are, of course, the biological grandparents of the Plaintiff. However, like the deceased, they, too, have decided to not meet, or have any relationship with, him. So far as is known, neither of them, currently, has any relationship with the Plaintiff. Ms Harris, through Facebook, attempted to contact, initially, the second Defendant, and, later, both Defendants. (I understand Facebook to be a social networking website and service that provides an electronic medium for the acquisition, and dissemination, of information. It is available to anyone who can access it. Facebook users can access the information on Facebook pages and can then contribute to the page by posting material on it. For someone to post on Facebook, he, she or it, must also have a Facebook account.)

Ms Harris gave evidence that she had been “blocked” by the second Defendant before making contact again through a new Facebook account. The second Defendant gave a different version of events regarding this issue, namely that she and her husband had chosen not to have a relationship with the Plaintiff since the deceased’s death “[i]n response to messages from Ms Harris on Facebook in which she said she wanted nothing whatsoever to do with us”. None of the Facebook entries were the subject of direct evidence.

(Nothing turns on the dispute of fact and no submissions about it were made. The relationship of the Defendants and Ms Harris is not relevant to the determination of the questions posed in the proceedings and do not arise as a result of the proceedings being dismissed.)

The second Defendant accepted, in cross-examination, that she and her husband, in the future, would be unlikely to initiate any relationship with the Plaintiff: Tcpt, 12 December 2019, p 47(39–41).

There is also conflicting evidence concerning the reasons why the deceased chose to not have contact with the Plaintiff. I do not think it is necessary to determine the reasons for him not doing so. It is clear, however, that the Plaintiff, himself, could not have been the cause of the deceased’s decision. As will be read, despite the absence of any actual relationship between them, and the fact that the deceased had never met the Plaintiff, the deceased could not escape his obligation, or responsibility, to make adequate and proper provision for the Plaintiff’s maintenance, education or advancement in life by severing all personal contact with him. Parental obligations and responsibilities are not distinguished according to acknowledgment or legitimacy.

The Plaintiff has lived with Ms Harris since his birth. They lived in Sydney together, but, subsequently, returned to live in Merimbula, on the far South Coast of New South Wales.

In her affidavit sworn on 18 October 2019, Ms Harris stated that she receives assistance from her mother, and from Mr Craig Newman, in caring for the Plaintiff when she has to work at nights. She states that she and Mr Newman “are not in an intimate relationship, just good friends who help each other out”.

No evidence was given by either Ms Harris’ mother or by Mr Newman.

As stated, the deceased left a duly executed Will, made on 5 March 2010. Relevantly, Clause 3 of that Will provided:

(Although there are no express words creating a charge to secure the payment of the annual sum, it seems to have been accepted by the Defendants that it is charged upon the capital of the residuary estate. They also appear to be prepared to set aside a sufficient sum, from the residuary estate, to ensure its payment.)

There is no dispute that the first payment of the “annual sum equivalent to the child support obligation” was made, by the Defendants, in March 2019. I shall return to the other benefits that the Plaintiff has received as a result of the death of the deceased. The matter should be approached upon the footing that the Plaintiff has received, or will receive, these benefits. They are particularly relevant to the determination of the questions before the Court.

It is clear that the deceased, in making his Will, gave some consideration to whether, and how, the Plaintiff should benefit from his estate. He made an absolute gift for the maintenance of the Plaintiff, which had the effect of carrying forward, after his death, an obligation to pay child support, adjusted for inflation, as set out in cl 3(a) of the Will. Whether he was aware of what benefits the Plaintiff would receive, otherwise, as a result of his death, is not established by the evidence.

The deceased left no written statement setting out the reasons why he made the Will in the terms that he did.

On 6 November 2019, the Court directed the parties to provide to the Chambers of the Family Provision List Judge by 4:00 p.m. on Tuesday, 3 December 2019, in hard and soft copy, an agreed schedule that contained:

Whilst a document was provided to the Court on 4 December 2019, it was headed “Defendants’ Proposed Agreed Statement of Assets & Liabilities”. However, at the commencement of the hearing, when the matter was raised with counsel, the Court was informed that the contents of the document had been agreed. Subsequently, the document was marked as Ex JS 1. What follows under this heading is taken, principally, from Ex JS 1.

At the date of death, the deceased’s estate was estimated to have a gross value of $1,455,477. It was said to consist of real estate in Bulimba, Queensland ($450,000) (the Bulimba property), an amount paid to the estate from the Military Superannuation & Benefits Scheme (had the whole of the amount been paid to the estate — $400,000), an amount held by the Mercer Super Trust (had the whole of the amount been paid to the estate — $568,718), monies in bank ($759) and a car ($36,000). (I have omitted and shall continue to omit a reference to cents. This will explain any apparent mathematical miscalculation.)

The only liabilities of the estate were said to be an amount secured, by mortgage registered on the Bulimba property (estimated to be about $420,000) and a credit card debt ($540). It follows, that the net value of the estate, as at the date of death, was estimated to be $1,034,937.

At the date of hearing, the gross amounts that had been received by the estate, totalled $584,591. The amounts received consisted of: the net proceeds of sale of the Bulimba property (after payment of the amount secured on that property — $46,076); part of the proceeds of the Military Super Death Benefits ($192,923); part of the proceeds of the Mercer Super Trust Benefits ($288,802) with the fund trustees determining that the other part should be paid to the Plaintiff (as to which see [65] below); monies in bank ($759); proceeds of sale of the car ($36,000); a refund of an amount paid to Navy Health ($136); and the net rent received from the Bulimba property ($19,893) prior to its sale. Only part of the proceeds of the Military Super Death Benefits was paid into the deceased’s estate, with the fund trustees determining that the other part should be paid to the Plaintiff: see Affidavit, Joan Mary Carter, 29 October 2019 at par 4 (as to which see [71] below).

The amounts paid out of the deceased’s estate, totalled $232,703 and included: interest and costs paid on the mortgage in respect of the Bulimba property ($30,947); legal fees and disbursements incurred on the sale of the Bulimba property ($1,172); commission incurred on the sale of the Bulimba property ($14,822); expenses incurred on the Bulimba property prior to it being sold ($12,403); funeral expenses ($6,700); a credit card debt ($540); an outstanding Telstra account ($25); costs and expenses regarding the deceased’s home ($5,769); legal fees and disbursements in the administration of the estate ($15,143); the amount of the provision made for Ms Harris pursuant to the orders of the Court ($110,000); the Defendants’ costs and disbursements of the proceedings commenced by Ms Harris ($25,863); and the amount paid to Ms Harris, for the Plaintiff, pursuant to the terms of the deceased’s Will ($9,316).

It follows that the value of the distributable estate, excluding the costs of these proceedings, at the date of hearing, was $351,888.

The future annual sums that would have to be paid pursuant to the terms of the deceased’s Will, for the Plaintiff if he continues his schooling until 18 years of age, were estimated to total $46,582, leaving a distributable estate (without deducting the costs of these proceedings), out of which any order for additional provision could be made, of $305,306.

(No reference was made in Ex JS 1 to the amount of approximately $76,000, being part of the Residual Death Benefit (as one part of the Military Superannuation & Benefits Scheme) that was paid to the Defendants on about 20 December 2018 and which was used by them to reduce the mortgage on their home. In the events that have happened, this is not relevant as it appears that it was not deducted from the gross value of the deceased’s estate set out in Ex JS1. Nor was it said to be the subject of designation as notional estate of the deceased.)

It will be necessary to return to the benefits that have been received by the Plaintiff later in these reasons.

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Chapter 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be carefully considered.

In Foley v Ellis [2008] NSWCA 288, Basten JA wrote, at [10]:

Parties, however, should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA, Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18]. I have made this statement, many times, in the context of a claim for a family provision order, particularly in relation to estates with a relatively small value.

Ms C L Thomson, the solicitor with the “care, conduct and control of this matter on behalf of the Plaintiff”, gave evidence that the costs and disbursements, calculated on the ordinary basis, up to, and including, a one day hearing, of the Plaintiff, were estimated to be $74,501.

Ms Thomson disclosed, also, that the “Plaintiff’s Tutor has entered into a contingent cost agreement with her Solicitor”: Affidavit, Carmen Lee Thomson, 18 October 2019 at par 6. The only term of that contingent cost agreement disclosed in her affidavit was “[t]here is no uplift payable”. However, when the Court informed senior counsel for the Plaintiff that the terms of the contingent cost agreement were unclear (s 181 of the Legal Profession Uniform Law (NSW) states that such an agreement may provide that the payment of some, or all, of the legal costs is conditional on the successful outcome of the matter to which those costs relate), he confirmed, after obtaining instructions, that no costs or disbursements (including the fees of senior counsel) were payable to the Plaintiff’s legal representatives in the event that the proceedings were dismissed: Tcpt, 12 December 2019, p 8(29–42).

There is evidence that the Defendants’ costs, calculated on the indemnity basis, of the proceedings commenced by Ms Harris, and the costs of these proceedings are, in total, $41,934. However, it was accepted that, of this estimated amount, $25,863 had been paid out of the estate, leaving an amount of $16,071 to be paid in respect of the present proceedings.

It followed, in the event that the costs of the proceedings were ordered to be paid out of the estate of the deceased, that the net distributable estate, out of which any order for additional provision for the Plaintiff could be made, was $214,734.

At the date of his death, the deceased was a member of Mercer Super Trust (Mercer Super). The second Defendant gave evidence that a benefit for the Plaintiff, to which he is entitled under the Mercer Super Fund, is $288,802. Ms Harris did not deny that the Plaintiff is entitled to this amount, which will be held in trust for him until he attains the age of 18 years. She wrote however, that the Plaintiff has not received this amount because the necessary documents relating to the trust on which that amount is to be held has not been provided.

The precise documents required to enable the amount to be paid are referred to in a letter dated 16 October 2019 from the solicitors for the Plaintiff to Ms Harris. Regrettably, however, a copy of the “correspondence from Mercer Superannuation dated 9 October 2019” is not annexed. There are references to “copies of the Deeds of Trust”, “the Beneficiary Trusts”, “Trustees Form” (none of which are annexed).

Senior counsel for the Plaintiff, in his written submissions, acknowledged that “[t]he benefit from Mercer Super Fund of $288,802, has not been, but will be, received by [Ms Harris] to the benefit of [the Plaintiff]”. He also said, in answer to questions from the Bench, that “… it is just expected that it will be paid to [Ms Harris] to be held on trust. I don’t have any of that material”: Tcpt, 12 December 2019, p 4(25–28).

In addition, the Commonwealth Superannuation Corporation, which administers the benefits payable, pursuant to the Military Superannuation and Benefits Act 1991 (Cth), to members of the Military Superannuation and Benefits Scheme (Military Super), determined that an amount of $115,953 was to be paid, by way of a fortnightly pension, to the Plaintiff.

On 3 January 2019, Ms Harris received a net payment of $5,163, as arrears of the fortnightly pension payments, for the benefit of the Plaintiff. On 17 January 2019, she began to receive $256 per fortnight as the “normal fortnightly amount” for the Plaintiff. From May 2019, following the provision of a tax return number for the Plaintiff, the fortnightly pension increased to $307. It then increased, in July 2019, to $309, which is the current amount, paid fortnightly, into the account jointly held in the names of Ms Harris and the Plaintiff.

The precise terms of the benefit being received, and for how long the payments were to be received, were not disclosed, precisely, in the evidence read on behalf of the Plaintiff. However, in a letter dated 12 December 2018, from the Australian Government, Commonwealth Superannuation Corporation, annexed to Ms Harris’ affidavit, affirmed on 12 April 2019, the following statement appears:

In addition, the Plaintiff has received the Death Benefit, which was payable by Military Super, in the amount of $144,808, which amount was paid into a bank account held in the joint names of the Plaintiff and Ms Harris in December 2018.

From the above, it follows that upon the amount of $288,802 being paid, there will have been received, as a result of the death of the deceased, for the benefit of the Plaintiff, capital amounts totalling $433,610. In addition, he will be entitled to receive an income totalling $17,350 per annum, comprising $8,034 (from the Military Superannuation and Benefits Scheme) and $9,316 (from the deceased’s estate), subject to adjustment for inflation. Of course, there should be some additional interest earned on the capital amounts, if they are properly invested.

(In regard to each of Mercer Super and Military Super, Ms Harris had made an application, on behalf of the Plaintiff, which had resulted in the amounts being paid for his benefit. The balance of the entitlements of the deceased, as a member of each fund was paid to the estate as set out above.)

At the commencement of the hearing, the Court inquired of counsel for the Defendants whether the issue of costs was able to be determined at the conclusion of the hearing. He indicated that it could not be, and that he would want to be heard on the issue should it arise. Senior counsel for the Plaintiff then informed the Court that there was no document on his side that was relevant to the issue of costs: Tcpt, 12 December 2019, p 9(12–36).

Following the Court determining that the Plaintiff’s proceedings were to be dismissed, there was handed up, without objection, a Notice of Offer of Compromise dated 20 June 2019, made on behalf of the Defendants. The offer made in the Offer of Compromise was that:

Because the offer did not include an amount for costs, and was not expressed to be inclusive of costs, the Plaintiff, upon acceptance of the offer, would have been entitled to an order against the Defendants, for his costs in respect of the claim, assessed on the ordinary basis, up to the time when the offer was made: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.13A.

Because the offer was not accepted, or lapsed through effluxion of time, and because the order dismissing the proceedings was less favourable to the Plaintiff than the terms of the offer, pursuant to UCPR r 42.15A, unless the Court ordered otherwise, the Defendants became entitled to an order, against the Plaintiff, for their costs in respect of the claim, assessed on the indemnity basis, and since the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made. They were otherwise entitled to their costs, calculated on the ordinary basis, up to that time: UCPR r 42.1.

I shall return to the submissions made, and the reasons for the costs order that was made.

(In the result, it is unnecessary to consider the reasonableness, or otherwise, of the quantum of the Plaintiff’s costs and the justification, if there was one, for briefing senior counsel, in relation to a gross distributable estate with a value of less than $400,000. Undoubtedly, more on this topic would have been written if the result of the proceedings had been otherwise.)

Senior counsel for the Plaintiff submitted, in writing, that the Plaintiff should receive the whole of the estate of the deceased, although he added, by way of fall-back position, that “[a]t most the parents as beneficiaries should receive a nominal capital sum to reflect the wishes (albeit not properly directed to discharge his principle [sic] obligation) that the parents receive some benefit”.

Senior counsel also submitted that the deceased could not escape his responsibility to make proper provision for the Plaintiff’s maintenance, education and advancement in life, simply by severing all personal contact with him. Although he did not specifically refer to it, the principle in Nicholls v Hall (2007) 2 ASTLR 419 at 427 [45]; [2007] NSWCA 356 at [45] (Mason P, Hodgson and McColl JJA) to which I shall later refer, appears to have been the foundation of that submission.

(Senior counsel also referred to what I had written in Jodell v Woods [2017] NSWSC 143 at [104], but it seems to me that what I wrote in that (and repeated in other cases) applies in relation to a claim for a family provision order made by an adult child, rather than a claim by a minor child of the deceased.)

The thrust of the submissions made by the Defendants was that the relationship of the Plaintiff and the deceased consisted of nothing more than “bare paternity”, that is to say, a biological relationship only. However, counsel for the Defendants, correctly in my view, conceded that such a relationship does not, necessarily, preclude a successful claim, but submitted that the provision made for the Plaintiff in the deceased’s Will, taken with the provision that he otherwise received, or will receive, as a result of the deceased’s death (as set out above), would result in the Court concluding that no additional provision ought to be made for the Plaintiff out of the estate of the deceased. In this way, the Court would consider not merely matters concerning the relationship between the Plaintiff and the deceased, but matters concerning other factors identified in s 60(2) of the Act, including the Plaintiff’s needs, the nature and extent of the deceased’s estate, and other legitimate claims on the deceased’s bounty. In other words, the Court would consider what was “adequate” and what was “proper” having regard to what might be characterised as the claim of the Plaintiff on the estate of the deceased.

By way of a fall-back position, counsel for the Defendants, submitted in writing:

From the above, it can be seen that there was a chasm between the position of each of the parties and their submissions were starkly in contrast. However, ultimately, it seems to me, in this case, that the real question is as to the adequacy and propriety of the provision received by the Plaintiff pursuant to the Will of the deceased, taking into account the other payments received, or to be received, by him, as a result of the death of the deceased.

The Plaintiff lives with Ms Harris in a two-bedroom home in Tura Beach, a suburb of Merimbula, on the South Coast of New South Wales. It is rented accommodation.

As at 21 November 2019, the amount held in the joint account for the benefit of the Plaintiff was $157,258. It is into this account that the pension of $309 per fortnight is deposited. It was also into this account that the arrears of the pension ($5,163) to which the Plaintiff was entitled, were paid, as was the first payment of the annual sum made for the Plaintiff ($9,316) pursuant to the Will of the deceased.

The bank statements, a copy of which were annexed to the affidavit sworn 29 November 2019 by Ms Harris, reveal that at least some of the rent of $740 per fortnight (and a bond payment of $1,480), has been deducted from this account (although there are some deposits of $300 per fortnight, from Ms Harris, into that account).

The Plaintiff attends a local High School. His half-yearly report for semester 1 2019 reveals that he is a competent student with B, C and D grades. He is doing reasonably well according to Ms Harris: Tcpt, 12 December 2019, p 21(01–07).

On 16 October 2019, the Plaintiff’s doctor placed him on a mental health care plan. He was diagnosed with “mild depression, 6 weeks”. There is a reference made to the Plaintiff’s “difficulty social coping”.

In the report annexed to an affidavit from Ms Harris, his mental state examination revealed that the Plaintiff’s “[i]nsight” is “[g]ood and improving”. He has also been seeing a school counsellor who has confirmed that the Plaintiff is “okay” but needs to work on “coping strategies”. Ms Harris recognised that it is unlikely that the Plaintiff will suffer from depression in the long term. She has adopted strategies to help him cope: Tcpt, 12 December 2019, p 23(45) – p 24(33).

Ms Usherwood stated, in an affidavit sworn on 18 October 2019, that the Plaintiff “appears happy and healthy”. In her earlier affidavit of 11 April 2019, she described the Plaintiff as suffering from “pigeon chest” (a malformation of the chest characterized by a protrusion of the sternum and ribs) but that he “is of relative good health”. (There was no medical evidence to support the first assertion.)

Ms Harris stated that the Plaintiff has applied to go on a two-week overseas exchange student program in 2020, which is estimated to cost $6,900. The deposit for the excursion has been paid, presumably out of the fund held for his benefit.

Ms Harris described herself as a “casual disability support worker”. She is currently employed by the Disability Trust. Her fortnightly income varies, but the copy of two different payment advices, annexed to her affidavit sworn 18 October 2019, reveal a fortnightly net income of between about $1,160 and $1,220. However, her net annual income for the year ending 30 June 2019 was about $44,000.

In addition, it appears that Ms Harris receives about $290 per fortnight by way of Centrelink payments: Tcpt, 12 December 2019, p 42(28–39); Ex A. (There is a reference in Ex A to “Number of Children Assessed – 1”.)

Ms Harris stated that “[w]hilst the child support payments received from [the deceased] are important, they are not enough to cover [the Plaintiff’s] weekly expenses …”. This statement does not take into account that both parents have a primary duty to provide for their child and the child support assessment is based upon the income of both parents. In making the statement referred to, Ms Harris also did not refer to the pension payments received from the Military Super, or to the Centrelink benefits to which reference has been made.

Ms Harris set out her “average weekly expenses”, which total $1,340. Of this total amount, the direct expenses for the Plaintiff that were identified total about $126 per week. There are, of course, other expenses in respect of which the Plaintiff receives a benefit. There are also expenses included that relate specifically, and only, to Ms Harris.

There was cross-examination of Ms Harris on some of the expense estimates which did suggest that some of the expenses were temporary. In addition, in relation to the purchase of a saxophone, it had been paid for, but it was shown as an ongoing annual expense, as Ms Harris had divided the purchase price to reach a weekly amount: Tcpt, 12 December 2019, p 31(28–33). In the circumstances, I do not accept all of the expenses as reasonable estimates of the household expenses. However, they provide a guide as to the categories of expenditure being paid.

Ms Harris also acknowledged that she has withdrawn $6,500 for the purchase of a car, from the account held for the Plaintiff: Tcpt, 12 December 2019, p 33(36–40).

Ms Harris has various bank accounts of her own in which there were amounts totalling about $72,000: Tcpt, 12 December 2019, p 38(17–28). The bulk of this amount is probably what is left from the provision made for her out of the estate of the deceased.

Ms Harris gave evidence of suffering from some medical conditions. (Her evidence would have been taken into account in determining the provision that she received out of the estate of the deceased.)

(Without intending this to be a criticism, the parties made no reference to any published research as to the average costs of maintaining, and educating, a child by, for example, the Australian Institute of Family Studies or by the Social Policy Research Centre at the University of New South Wales. Of course, the Court is not concerned with averages, but with the claim by the applicant for a family provision order, and determining what it is adequate and proper in all of the circumstances of the case.)

Each of the Defendants did not, specifically, raise his, or her, financial resources and needs as at the date of the hearing. In an affidavit made on 29 April 2019, filed in opposition to the claim by Ms Harris, which was read, with the leave of the Court and without opposition or objection, in the current proceedings, the second Defendant disclosed that they then owned “a modest villa home … at East Hills, which has a value of $650,000”; an apartment, in Woolloomooloo, in which the deceased had lived ($750,000), which was subject to a mortgage ($240,000), which is tenanted and the rent from which almost covers mortgage repayments and other outgoings; household items and furniture; and a 2004 Holden Commodore. Each receives a pension of $510 per fortnight.

The second Defendant was asked, in cross-examination, some questions about what had previously been disclosed.

I have taken all of the second Defendant’s evidence on these matters into account, albeit that, in part, it refers to the position in April 2019 and not at the date of the hearing. The competing financial claim of the Defendants is of little weight in the circumstances of the case. Even if I ignored the evidence, because in an email dated 10 January 2019, the solicitor for the Defendants stated “there is no competing claim”, it would not have resulted in any other order being made in the proceedings.

I shall next discuss the statutory scheme and what I have described as general principles. I have discussed the general principles in many cases.

The long title to the Act, relevantly, states that it is an Act “… to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person …”.

Section 59(1) of the Act confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly in this case, the Court is satisfied as to matters, namely that:

Only if satisfied of each of those matters, can the Court then make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

An order, unless the Court otherwise orders, takes effect as if the provision was made in a codicil to the will of the deceased person, if the deceased person made a will, or in a will of the deceased person, if the deceased person died intestate: s 72(1) of the Act.

Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education and advancement in life. The question would appear to be answered by a multi-faceted evaluation that takes the Court, to, amongst other things, the provision made for the applicant in the Will of the deceased, and, in this case, other entitlements which the applicant has received, or will receive, as a result of the death of the deceased person, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed, in the Act, as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of the applicant.

The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210–211 (Mason CJ, Deane and McHugh JJ); [1994] HCA 40; White v Barron (1980) 144 CLR 431 at 434–435 (Barwick CJ, albeit in dissent in the result), 443 (Mason J); [1980] HCA 14.

“Provision” is not defined by the Act, but it was noted in Diver v Neal (2009) 2 ASTLR 89 at 97 [34]; [2009] NSWCA 54 at [34] (Basten JA, Allsop P and Ipp JA agreeing), that the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person’s lifetime”.

The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, described by Rosalind Atherton in “The Concept of Moral Duty in the Law of Family Provision — A Gloss or Critical Understanding?” (1999) 5(1) Australian Journal of Legal History 5, 10, as reached upon “a purely economic and objective basis”, whereas “proper” prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127 at 145 [72], 145–146 [77]; [2007] WASCA 235 at [72], [77] (Buss JA, Pullin JA agreeing), which seems to invite more subjective criteria.

In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at 19, pointed out that the words “adequate” and “proper” are always relative and that what the testator regarded as “superior claims or preferable dispositions” is a relevant consideration:

In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing) wrote, at 502:

In Vigolo v Bostin (2005) 221 CLR 191 at 228 [114]; [2005] HCA 11 at [114], Callinan and Heydon JJ wrote:

As Callinan and Heydon JJ also emphasised, at [115], the concept of maintenance, for family provision purposes, may imply continuity of a pre-existing state of affairs. At [122], their Honours added that the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.

White J (as his Honour then was), in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 283–284 [123]; [2013] NSWSC 522, wrote, at [123]:

In Ilott v The Blue Cross [2018] AC 545 at 564–565 [14]–[15]; [2017] UKSC 17, a claim by an estranged adult daughter under the Inheritance (Provision for Family and Dependants) Act 1975 (UK) c 63, Lord Hughes JSC (Lord Neuberger PSC, Baroness Hale DPSC, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption JJSC, agreeing), in defining “maintenance”, wrote, at [14]–[15]:

Whether the disposition of the deceased’s estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant will always, as a practical matter, also involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant’s “needs” that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P, Hope JA agreeing). This statement is not intended to suggest that an applicant’s “needs”, when compared with the provision made for him or her, should be the dominant consideration. The existence, or absence, of “needs” which an applicant cannot meet from his, or her, own resources will always be highly relevant, and quite often decisive, as the statutory formulation, and therefore, the issue in every case, is whether the disposition of the deceased’s estate was not such as to make adequate provision for her or his proper maintenance, education and advancement in life: Singer v Berghouse at 227 (Gaudron J, albeit in dissent in the result); Bkassini v Sarkis [2017] NSWSC 1487 at [296]–[297] (Robb J).

In Devereaux-Warnes v Hall (No 3), at [81]–[84], Buss JA (as his Honour then was) wrote:

However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as will also be read, one of the purposes for which that is done is for determining “the nature of any [family provision] order”: s 60(1)(b) of the Act.

No doubt, this has prompted White J (as his Honour then was) to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473, at [147], that “… the need a claimant must demonstrate is a need for ‘proper’ maintenance, education and advancement in life”, but that does not mean that “… adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others …”. Respectfully, I agree.

Of course, “need” is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from “want” and does not simply mean “demand” or “desire”. The latent difference between the words was stated by Lord Neuberger (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808 at 1825 [54]; [2008] UKHL 52 at [54]:

In Boettcher v Driscoll (2014) 119 SASR 523 at 530 [41]; [2014] SASC 86 at [41], David J added:

Whilst it does not extend to any, or every, thing, that it would be desirable for the applicant to have, no narrow view of what is encompassed by the concept of “need” is should be adopted. In Gorton v Parks (1989) 17 NSWLR 1, Bryson J (as his Honour then was) commented at 8 that “[i]t does not seem possible to give a complete or exhaustive statement of the concept”.

Furthermore, the following observations of Basten JA (Simpson and Payne JJA agreeing) in Chan v Chan (2016) 15 ASTLR 317 at 324 [22]; [2016] NSWCA 222 at [22], should be borne in mind:

If the Court is satisfied, at the time when the Court is considering the application, that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.

Section 60 of the Act provides:

It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656 at 665 [37]; [2012] NSWCA 308 at [37], as a “multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the Court considers relevant”, for the purpose of determining whether the applicant is an “eligible person”, whether a family provision order should be made, and if so, the nature of any such order.

In Chapple v Wilcox (2014) 87 NSWLR 646 at 649 [7]; [2014] NSWCA 392 at [7], Basten JA (Gleeson JA agreeing) wrote:

The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The sub-section makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based.

It can be seen that the sub-sections more readily accommodate objective facts rather than just the facts known to the deceased, and some of the sub-sections also accommodate events occurring after the death of the deceased.

The section does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on what has been described as “the discretionary question”, namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

The Court should, and does, give considerable weight to the deceased’s wishes in recognition of the better position in which he was placed. Of course, “[t]his is subject to the qualification that the Court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will”: Slack v Rogan; Palffy v Rogan at [127] (White J).

Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased’s wishes:

In Stott v Cook (1960) 33 ALJR 447 at 453–454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added:

In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:

In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that:

The Act, however, must be applied according to its terms, and is not confined by notions of reluctance to interfere with freedom of testation. There is no predisposition for, or against, the making of orders for provision for an applicant, and each claim must be dealt with on its merits based on the evidence before the Court.

As was stated by Brereton JA (Simpson AJA agreeing) in Steinmetz v Shannon (2019) 368 ALR 161 at 181 [97]; [2019] NSWCA 114 at [97]:

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.

The Court’s discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).

Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve “an overall fair” division of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.

As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]:

Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) at 30–31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]–[274] (Ward J).

In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson [2017] NSWCA 326 at [67] (White JA, McColl and Payne JJA agreeing).

The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased’s Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190 at 202–203 [41]; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96 at 110 [67]; [2013] VSC 35 at [67] (Hargrave J).

The role of the Court is not “to address wounded feelings or to salve the pain of disappointed expectations” that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).

In Foley v Ellis, at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse:

In Bosch v Perpetual Trustee Co Ltd [1938] AC 463, Lord Romer (delivering the advice of the Privy Council) observed, at 483, that the exercise of the discretionary power given to the court “must always be one of great difficulty and delicacy” and “must always be one largely of guess-work, especially in a case … which is concerned with children of tender age of whose needs in the future nothing can be predicted with any certainty”.

In Nicholls v Hall, the Court of Appeal of New South Wales dealt with a case involving bare paternity. At [43]–[48], the Court wrote:

More recently, Robb J in Lado Causillas v NSW Trustee and Guardian [2015] NSWSC 1204 at [337], wrote that “[t]he parent’s responsibility for bringing the child into the world leads to the assumption of a duty to be concerned for the child’s welfare that may entitle the child to the making of a family provision order, even in an extreme case where the parent did not become aware of the birth of the child”.

His Honour added:

Yet, just because a child has been neglected during the joint lives of the parent and the child, the Court should not, necessarily, right the wrong thereby done, by granting an order for provision out of the parent’s estate without reference to the requirements of the Act. Provision should not be made merely for the purpose of holding a deceased person to account for what might be regarded as unacceptable behaviour during his, or her, lifetime (although, of course, a deceased person’s conduct may be considered in determining whether to make a family provision order and the nature of any such order). The focus of the Act is not to somehow punish the deceased, or to provide for reparations in order to right past wrongs, or to compensate the Plaintiff for the deceased's limitations as a parent.

As I wrote in Savic v Kim [2010] NSWSC 1401 at [82]:

This does not mean that the deceased’s conduct will be irrelevant to his, or her, duty to make provision for an applicant. Where that conduct has the effect of depriving an applicant for provision of opportunities in life, or otherwise, and there is some causal connection between it and the applicant’s need for provision, the court may take that into account in determining whether proper provision has been made: Litchfield v Smith [2010] VSC 466 at [57] (Hargrave J).

As long ago as 1980, in White v Barron, at 440, Stephen J wrote:

As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [117]) I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.

It is necessary for the Court, in each case, after having had regard to the matters that the Act permits it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Cases must be resolved on a “case by case basis” as each involves different classes of applicant, different factual circumstances and different competing claims by others upon the estate of the deceased. Every case is different and must be decided on its own facts.

The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]–[20], and by Barrett JA, at [66]–[67]; in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329 [84]–[85]; [2015] NSWCA 195 at [84]–[85] (Ward JA, Meagher and Emmett JJA agreeing); in Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and recently, by White JA, in Steinmetz v Shannon, at [37]. They must be remembered.

What is written below should be read as a continuation of what has been written above. I have dealt with the matters in s 60(2) that are relevant and to which I have had regard.

This is a case that does not readily fit the paradigm of an estranged relationship between child and parent. There was never an opportunity for the Plaintiff to engage socially, or otherwise, with the deceased, an opportunity which, for reasons good or bad, the deceased did not permit.

I am satisfied that the deceased did have an obligation, or responsibility, to make provision for the Plaintiff, who was his only child. Whilst the deceased did abandon him emotionally and physically (for which the Plaintiff bears no responsibility), he did comply with his legal obligation to make a contribution to the Plaintiff’s maintenance. By the terms of his Will, he provided for the continuation of that contribution, on certain terms, until the Plaintiff attained the age of 18 years. In so doing, the deceased, himself, recognised an obligation to the Plaintiff.

However, even if the deceased did repudiate his obligation to the Plaintiff during their joint lifetimes, and as the Court has found, was subject to an obligation to provide for the Plaintiff on his death, I am satisfied that he did meet that obligation in the events that have occurred.

This is not a case where the Plaintiff has not received any provision, or provision only by way of financial support necessary for the maintenance of the Plaintiff. What the Plaintiff has received, as a result of the death of the deceased, even though not pursuant to the Will of the deceased, or out of his estate, is a matter, at the time the application is being considered, that the Court considers very relevant.

Had the Plaintiff received no provision by way of lump sum provision, I would have concluded that the deceased, at no stage, had given the Plaintiff any assistance (financial or otherwise) towards making his own way in life, having made only the compulsory child support payments, and also that the totality of the circumstances would compel a finding that the jurisdictional question should be answered in the Plaintiff’s favour. In such circumstances, consideration would have had to be given by the following views expressed by Lindsay J in Estate Hemmes; Cameron v Mead [2018] NSWSC 85 at [56]:

That conclusion would have required additional provision, by way of a capital sum, to be made for the Plaintiff’s education and advancement in life.

However, that hypothetical situation does not arise in this case. Here, the Plaintiff has received, or will receive, as a result of the death of the deceased and of him being a member of two different superannuation funds prior to his death, amounts of capital in excess of $430,000. Those amounts together, are more than the value of the gross distributable estate out of which an order for additional provision could have been made.

Whether the Plaintiff, in that hypothetical situation, would have received any additional income by way of maintenance, is less clear, as it cannot be forgotten, as previously written, that, generally speaking, it is both parents who have the primary duty or responsibility to maintain their child or children and on the present evidence, the Plaintiff is receiving, and will continue to receive, a reasonable amount of income by way of financial support.

The Plaintiff has a current entitlement to an income of about $667 per fortnight until he attains the age of 18 years, and in relation to part of the income (about $309 per fortnight), it continues to the age of 25 years provided he engages in full-time education: Tcpt, 12 December 2019, p 67(01–27). Furthermore, properly invested, for example by way of term deposit, there would also be some income received on, at least part of, the lump sums that have been received for the Plaintiff’s benefit.

It cannot also be forgotten that under s 43(1) of the Trustee Act 1925 (NSW), where any property is held in trust for a person who is for the time being an infant for any interest whatsoever, whether vested or contingent, and whether absolute or liable to be divested, the trustee may, at the trustee's sole discretion, pay to the parent or guardian, if any, of the infant, or to the person with whom the infant is for the time being residing, or otherwise apply to the whole or any part of the income of the property, for or towards the maintenance, education or benefit of the infant.

Under s 44 of the Trustee Act, unless there is a contrary intention expressed in the trust instrument, the trustee has power to apply capital, up to one half of the beneficiary's share of the estate, for the advancement or benefit of such person or, where that person is an infant, for their maintenance, education, advancement or benefit: s 44(1). However, the power to apply capital for the maintenance or education of an infant shall not be exercised where the property, or the infant’s share thereof, exceeds $4,000: s 44(1A).

There is a substantial financial foundation established, as a result of the death of the deceased, for the Plaintiff, during the approximately 4 years remaining of childhood, and also thereafter. No specific “needs” were identified that could not be met from the funds that are, or will be, available, and I am unable, on the evidence, to find any such needs.

Although the deceased’s best opportunity to support the Plaintiff had passed by the end of the deceased’s life, I was not satisfied that adequate and proper provision for the Plaintiff’s maintenance, education and advancement in life had not been made by the deceased. It followed that the Plaintiff had not satisfied the Court of this necessary element with the result that his proceedings should be dismissed.

What has been described as the “jurisdictional question” was not answered in favour of the Plaintiff. It followed that it was unnecessary for the Court to decide what provision ought to be made out of the deceased’s estate for the Plaintiff.

I tested the conclusion reached by asking the hypothetical question whether, had all of the capital amounts that have been paid to the Plaintiff been paid to the estate, would the Plaintiff have received a family provision order out of the deceased’s estate that is greater than what he has actually received, and will receive, as a result of the death of the deceased? I concluded that the answer would be in the negative.

For all of these reasons, I ordered that the Plaintiff’s Summons should be dismissed.

Counsel for the Defendants handed up the Offer of Compromise (to which I have referred). I then, immediately, heard submissions on costs, following which the Plaintiff was ordered to pay the Defendants’ costs, up to 19 June 2019, calculated on the ordinary basis, and to pay the Defendants’ costs, calculated on the indemnity basis, of the proceedings, from 20 June 2019. In fact, ordinary costs should be paid up to 20 June 2019 (not 19 June 2019) and indemnity costs should be paid from 21 June 2019 (not 20 June 2019). That error will be rectified under the slip rule: UCPR, r 36.17.

I turn now to the reasons for the decision made on the costs of the proceedings.

UCPR r 20.26 refers to offers of compromise. There was no dispute that the Offer of Compromise served by the Defendants’ solicitors complied with UCPR r 20.26. There was also no dispute that the offer of compromise that had been made contained a genuine compromise at the time at which the offer was made. Nor did senior counsel for the Plaintiff dispute that the Offer of Compromise specified the period of time within which the offer was open for acceptance: UCPR, r 20.26(2)(f). Finally, it is clear that this offer, if accepted, upon the making of an order in accordance with it, was capable of bringing the proceedings to an end.

UCPR r 42.20(1) provides that if the Court makes an order for the dismissal of proceedings, then unless the Court otherwise orders, the Plaintiff must pay the Defendant’s costs of the proceedings to the extent to which the proceedings have been dismissed.

Part 42, Division 3 of the UCPR, relates to “proceedings in respect of which an offer of compromise (the offer) is made under rule 20.26 with respect to a plaintiff's claim (the claim)”: UCPR, r 42.13.

UCPR rule 42.15A relevantly provides:

The effect of these rules, in this case, was that the Plaintiff must bear the Defendants’ costs of the proceedings for the family provision order, unless the Court otherwise orders. The Court can only order otherwise if there is a discretionary decision to depart from what the UCPR provide.

In circumstances where an offer of compromise has been made, but not accepted, and that party has obtained a judgment no less favourable than the terms of the offer, there is a clear onus on the recipient of the offer to persuade the Court that indemnity costs should not be ordered. Here, the Plaintiff was required to demonstrate the basis on which an order should be made denying the Defendants’ entitlement to indemnity costs.

In Chapple v Wilcox, at [27], Basten JA wrote:

Kunc J in Bates v Cooke (No 2) [2014] NSWSC 1322 wrote, at [33]:

(An appeal from the substantive judgment of Kunc J was dismissed in Bates v Cooke (2015) 14 ASTLR 221; [2015] NSWCA 278. Other than one mention of the costs judgment in Sackville AJA’s judgment on appeal at [16], nothing was written by the Court of Appeal about the costs judgment.)

In Meres v Meres (No 2) [2017] NSWSC 523 at [43]–[44], I wrote:

Senior counsel for the Plaintiff was unable to identify any feature, or features, which provide a rational basis for the Court to displace what the rule specifies is the costs order to which the Defendants are entitled. Indeed, he simply put that the tutor, “under advice, thought that it was not appropriate to accept [the offer] … She made a bad call …”: Tcpt, 12 December 2019, p 73(16–24).

There was no evidence given about the nature of the advice given to the tutor of the Plaintiff regarding the prospects of success of the proceedings. She had retained experienced legal practitioners, indeed, senior counsel, to act for her throughout the proceedings. Her legal representatives would have been unlikely to have advised her that there was little risk, and probably much to be gained, in making the claim because even if the claim failed, the Plaintiff would be very likely to get his costs out of the estate, or that the tutor would not be significantly out of pocket if a costs order was made if the Plaintiff was unsuccessful in obtaining an order for provision. Undoubtedly, they would also have advised the tutor of the possible consequences of refusing the Offer of Compromise.

In Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391, McColl JA (Gleeson JA and Sackville AJA agreeing) repeated an observation of Gleeson CJ (as his Honour then was) in New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100 at 102, in relation to an earlier version of UCPR r 42.14, that it is impossible exhaustively to state the circumstances in which the discretion to depart from the prima facie rule might be exercised, and then wrote, at [48]:

Naturally, as stated earlier, I have considered that there were no significant competing financial claims by either of the Defendants. However, that is only one of the matters the Court would have had to consider in relation to the Plaintiff’s claim for a family provision order. At a hearing, the Court would not disregard the interests of each, as a beneficiary and a chosen object of testamentary bounty. I have remembered s 61 of the Act.

Having considered what the tutor of the Plaintiff knew, or ought to have known, about the amounts received, or to be received, and the income to which the Plaintiff was entitled, at the time the Offer of Compromise was served, I am not satisfied that it was reasonable for the tutor to have rejected the offer made in the Offer of Compromise, or have allowed it to lapse through effluxion of time. An additional lump sum of $30,000, when added to the capital sums which the Plaintiff had received, or would receive, would have increased the capital amount available for his maintenance, education, or advancement in life, to over $460,000. That he was, at the date of the likely hearing, not yet 14 years old, is a relevant consideration.

In addition, had the offer been accepted, he would have been entitled to costs, calculated on the ordinary basis, of the proceedings.

Furthermore, it is to be noted that there was no evidence of the tutor’s response to the offer, and, on the evidence before the Court, it would seem that she did not make any real attempt to compromise by making a written offer in an amount that could be considered to constitute a genuine attempt to resolve the proceedings. (The nature of any other negotiations, naturally, was not disclosed, even though the Court was informed that there had been some. It is likely that the Court is not privy to all that has gone on behind the scenes.)

As Kunc J wrote in Rogic v Samaan (No 2) [2018] NSWSC 1573 at [36]:

The offer contained in the Offer of Compromise, in this case, was clearly intended to avoid the continuation of the litigation. Whilst the amount of the offer was not substantial, it was not a walk-away offer, that is one “where the offeror expresses its willingness to settle on the ground that each party bears its own costs”: Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) at [50] (McColl JA), quoting G E Dal Pont, Law of Costs (3rd ed, 2013, LexisNexis) at [13.9]. The offer made did not call for the Plaintiff to capitulate. He would have received additional provision out of the estate of the deceased and his costs, calculated on the ordinary basis. The offer, albeit of a relatively modest lump sum in satisfaction of his claim, demonstrated a sufficient element of compromise.

I have also remembered what Gray J (Carr and Goldberg JJ agreeing) wrote in Hamod v State of New South Wales (2002) 188 ALR 659 at 665 [20]; [2002] FCAFC 97; [2002] FCA 424 at [20]:

As has been written many times, offers made to settle proceedings, particularly in family provision matters, are designed to encourage parties to compromise their claims and reduce the impact of legal costs on the value of the estate particularly in claims where the estate is quite small and could be significantly reduced by legal costs. In addition, the power of the Court to make orders for costs is designed to compensate a successful party for the expense in resisting (or bringing) a claim, but it also has an effect of deterring a party from resisting (or bringing) a claim unsuccessfully. It is an incentive to resolve disputes and serves a public, as well as a private, interest.

Naturally, I also considered that the Plaintiff’s claim was one for a family provision order and what had been written by Gaudron J in Singer v Berghouse (1993) 67 ALJR 708 at 709; [1993] HCA 35 at [6] (albeit in the context of a security for costs application). I also remembered that proceedings for a family provision order involve elements of judgment and discretion beyond those at work in most inter partes litigation: Re Sherborne Estate; Vanvalen v Neaves; Gilroy v Neaves (No 2) (2005) 65 NSWLR 268 at 278–279 [56]–[58], 279 [62]–[64]; [2005] NSWSC 1003 at [56]–[58], [62]–[64] (Palmer J). This leads to claims for a family provision order, in some ways, raising issues with respect to costs that differ from those in other litigation and there being more flexibility where there has been an unsuccessful claim.

My overall impression of the evidence, and also the terms of the Defendants’ Offer of Compromise, led me to the view that there was not enough to displace the rule relating to costs. Ensuring that justice was done in the proceedings, required that the costs consequences of the action brought on behalf of the Plaintiff should not be visited upon the Defendants by reduction in the quantum of the estate to which they are entitled.

Ms Usherwood, even though strictly, not a “party”, as the Plaintiff’s tutor, is, nonetheless, to be regarded as a party for the purpose of making costs orders: Stokes v McCourt (Costs) [2014] NSWSC 63 at [7] (McDougall J); Yakmor v Hamdoush (No 2) (2009) 76 NSWLR 148 at 156–157 [44]–[45]; [2009] NSWCA 284 at [44]–[45] (Giles JA, Ipp and Tobias JJA agreeing). At [23], Giles JA referred, with approval, to a statement made by Buss JA in Farrell v Royal Kings Park Tennis Club (Inc) [2007] WASCA 173 at [17], that:

Thus, Ms Usherwood will be personally liable to pay the costs. The Defendants, if they desire to do so, may enforce the costs order directly against her since the Plaintiff is a person under a legal incapacity: Yakmor v Hamdoush (No 2) at [24]–[25], [44]–[45].

Naturally, I considered that it might be thought to be unfair for Ms Usherwood to be liable for costs as she did not stand to personally benefit from the proceedings and only consented to act as tutor because the Plaintiff was under a legal incapacity. But that could be said for nearly every tutor. As was pointed out by Bathurst CJ (McColl and Meagher JJA agreeing) in Ashton v Pratt (No 2) [2015] NSWCA 134 at [18]:

When the potential costs implications if the Plaintiff were unsuccessful was raised at the beginning of the hearing, senior counsel for the Plaintiff informed the Court that Ms Usherwood was aware that “she will be personally liable for any order for costs that is made against the plaintiff in bringing these proceedings”: Tcpt, 12 December 2019, p 8(38–42).

In the circumstances, the Court ordered: