Cooper v Atkin

1. [1]

   THE COURT: Ms Kristi Cooper, the applicant, seeks leave to appeal from orders made by Hallen J dismissing a summons seeking a family provision order under Ch 3 of the Succession Act 2006 (NSW): [2020] NSWSC 828. His Honour described the case as “ruinous, and recriminatory, proceedings”.

2. [2]

   The applicant is an adult step-child of Terence Helgesen, the deceased, who died on 18 November 2017. Lynda Atkin, the respondent, is the deceased’s sister. Without intending any disrespect, we will refer to the principal actors relevant to determining this case by their first names.

The primary judgment

1. [3]

   The deceased was born in July 1938, in the United Kingdom, and he died in November 2017, in Port Macquarie, New South Wales, aged 79 years. Lynda was born in September 1948.

2. [4]

   The deceased married Shirley Plater in 1960 and there were two children of their marriage, being Andrew, who was born in May 1966, and Vanessa, who was born in December 1972. The marriage of the deceased and Shirley ended in 1985.

3. [5]

   The deceased lived in the United Kingdom but in 1984 visited Australia where he met the applicant’s mother, Diane Holmes. Diane had been married to Victor Cooper, and the applicant is the only child of their marriage. The applicant was born in March 1963. The deceased and Diane married in February 1986 and remained married until Diane’s death in August 2015, almost 30 years later. There were no children of their marriage.

4. [6]

   The applicant lived with Diane and the deceased “in the 1980’s before [she] went overseas”. The applicant left to go overseas in about 1986.

5. [7]

   Diane made a Will dated 6 July 2012 in which she left the whole of her estate to the deceased, save for a “silver belt” left to the applicant. While there was evidence at first instance that the applicant intended to make a claim for a family provision order against Diane’s estate, she did not ultimately commence any proceedings.

6. [8]

   The deceased left a Will dated 29 January 2016. In that Will, so far as is relevant, he revoked all former Wills and testamentary dispositions, appointed Lynda as the sole executrix and trustee of the Will, and gave the whole of his Estate, after payment of debts, funeral and testamentary expenses, as to 40 per cent, to each of Andrew and Vanessa, and as to 10 per cent to his granddaughter, and 10 per cent “to be divided between such of my grandsons as are living at the date of my death and [who] attain the age of 18 years and if more than one as tenants in common in equal shares”.

7. [9]

   The primary judge found that the net value of the Estate at the date of the hearing was $92,042. Including amounts that had already been distributed or paid, the value of the Estate would have been $189,343. The primary judge found that over $109,000 in estimated legal costs had been incurred by the parties in the first instance proceedings.

8. [10]

   The applicant was an “eligible person” to apply to the Court for a family provision order under s 57(1)(e) of the Succession Act as she was a partly dependent member of the household of which the deceased person was a member (albeit for a short period of time).

9. [11]

   The primary judge characterised the overall relationship between the applicant and the deceased thus:

10. [12]

    The primary judge made further specific findings about the relationship between the applicant and the deceased:

11. [13]

    The primary judge also had regard to the conduct of the applicant after the death of the deceased. The primary judge found that a series of emails sent by the applicant to Lynda revealed the applicant’s true feelings about the deceased. His Honour said:

12. [14]

    The primary judge made the following findings relevant to whether the applicant’s application for a family provision order was warranted:

13. [15]

    In deciding whether an order for provision out of the deceased’s Estate should be made, the primary judge concluded that:

Application for leave to appeal

1. [16]

   The applicant accepted that a grant of leave to appeal was necessary for her case to proceed in this Court. The draft notice of appeal contained 18 grounds:

2. [17]

   On 3 May 2021, the applicant filed a notice of motion dated 29 April 2021 seeking the following additional orders in relation to Andrew and Vanessa, the children of the deceased from his marriage to Shirley Plater who live in the United Kingdom:

3. [18]

   The respondents did not appear on the application for leave to appeal. Lynda, however, filed a document which stated that the Estate had been fully distributed prior to her being served with the application for leave to appeal.

Applicant’s submissions

1. [19]

   The applicant submitted that there was no disentitling conduct or fault on her part in this case. It was submitted that the applicant had not exhibited any “hostility” to the deceased but that the behaviour of the deceased had caused the applicant fear, distress and regret. There was no “estrangement”.

2. [20]

   The applicant submitted that, in any case, estrangement is not itself a sufficient reason to refuse an application in family provision, nor is it grounds for a finding of disentitling conduct, particularly where there is need. It was submitted that the applicant’s conduct could not be characterised as disentitling conduct under the Succession Act because it was at no time egregious, nor did it affect the deceased. The applicant submitted that the primary judge disregarded her attempted reconciliations with the deceased, including in 2011 and 2015, that “ended in further threats and abuse”. On this topic, the applicant submitted that the primary judge should have taken into account “more factually and substantially compatible (sic) [comparable] cases” to which his Honour could have turned his attention including Hartnett and Hartnett v Taylor [2014] VSC 427 and Lathwell v Lathwell [2007] WASC 83.

3. [21]

   The applicant further submitted that the primary judge erred in fact as to who was present in Australia for the applicant’s mother’s funeral and submitted that she was the only child of the Australian marriage who returned to Australia to comfort the deceased. The applicant submitted that she was the only “full-time member” of the Australian marriage and was present during at least 21.6 years of that marriage. It was submitted that the applicant experienced the effects, both positive and negative, of the second marriage and there was a level of emotional dependency.

4. [22]

   The applicant submitted that her non-financial contributions to the deceased’s welfare were not inconsiderable and included obtaining medical assistance, not reporting assaults prior to 1999, not expressing fear because it would have had consequences for the deceased, such as arrest, and not suing on her mother’s estate because she felt pity for the deceased.

5. [23]

   The applicant submitted that she met the jurisdictional threshold at s 59 of the Succession Act. Her ultimate submission was that:

6. [24]

   As to whether the application raised any issue of public importance, the applicant submitted that the primary judgment is not consonant with contemporary community expectations and standards with regard to the stated public policy that domestic violence or family abuse is an anathema detrimental to community interests and society.

7. [25]

   It was submitted that the primary judge failed to consider that the assault upon the applicant on 14 January 2000 was serious and alarming to her. The applicant submitted that a person who is violent towards a testator cannot expect to be provided for in a will or if not provided for to come before the court and receive a proportion of the estate (citing Christie v Christie [2016] WASC 45 at [37]-[38]) and that the converse is true for testator offenders in New South Wales. The applicant submitted that she was at no time “violent” towards the testator; the primary judge erred in misdirecting himself on self-defence; and the primary judge’s assessment of risk and women’s safety at [229] was poor.

8. [26]

   The applicant submitted that the primary judge’s assessment of her position was “one which was so out of kilter with community values and expectations as discerned in the cases … as to bespeak error in this regard”: Burke v Burke [2015] NSWCA 195 at [105] (per Ward JA with whom Meagher JA and Emmett JA agreed).

Consideration

1. [27]

   The applicant requires leave to appeal because of the small amount potentially involved in any appeal: Supreme Court Act 1970 (NSW), s 101(2)(r)(i). There is no realistic prospect that even if the applicant were completely successful in an appeal that she could achieve a change in her financial position of over $100,000.

2. [28]

   The principles about whether leave should be granted are well settled. As has regularly been pointed out in decisions of this Court, a grant of leave to appeal generally requires there to be identified an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable: see, for example, Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; and Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

3. [29]

   The starting point in considering the application for leave to appeal is that the applicant accepts that the primary judge stated the principles to be applied correctly:

4. [30]

   The absence of any contest about the relevant principles to be applied is a factor tending against the grant of leave.

5. [31]

   In addition, s 60 of the Civil Procedure Act 2005 (NSW) provides:

6. [32]

   As Basten JA pointed out in Be Financial at [39]:

7. [33]

   Even on the most favourable assumption to the applicant, that an Estate of $189,343 is available as the subject matter of the proposed appeal, at the time of Hallen J’s judgment over $109,000 in estimated costs had been incurred by the parties. If leave were granted and the applicant proceeded against Lynda, Andrew and Vanessa as she seeks to do in her notice of motion filed 3 May 2021, the overwhelming likelihood is that the respondents would retain legal advisors and contest the applicant’s claim, as they did before the primary judge. The likely costs of the appeal, together with what has already been spent, would likely exceed the value of the Estate. This conclusion leaves entirely to one side the fact that Lynda has advised the Court that the entire Estate was distributed before she was served with the application for leave to appeal. Whatever the admissibility or correctness of that statement and whatever the potential consequences for Lynda, Andrew and Vanessa, if any, of that state of affairs, it may safely be concluded that resolution of competing claims about the manner in which the Estate was distributed are likely also to involve significant legal costs.

8. [34]

   It hardly needs stating that the costs of these proceedings to date and in prospect are completely disproportionate to the value of the Estate. They are even more disproportionate to the value of any order that could realistically ever have been made in favour of the applicant. The costs already expended and in prospect are grossly disproportionate to any prospective order made following a grant of leave in this case. The incurring of additional costs, for a potentially uncertain return, is a factor weighing heavily against a grant of leave here.

9. [35]

   As to the merits of the applicant’s claim, at its heart is an assertion that the primary judge did not made an order for provision in her favour by reason of disentitling conduct. This assertion is not correct.

10. [36]

    The primary judge made, at some length, an assessment of the applicant’s financial position, the size and nature of the deceased’s Estate, the relationship between the applicant and the deceased, and the competing claim of the beneficiaries, two of whom are the deceased’s children, and the others who are grandchildren, who are the chosen objects of his bounty, and the circumstances and needs of both the applicant and each of the beneficiaries so far as they are known.

11. [37]

    The key findings of the primary judge were that this is not a case where there was a close relationship between the applicant and the deceased that “might be properly described as parent and child”. The primary judge found, correctly, that the applicant was not brought up as a permanent member of the deceased’s family. The applicant was never a full-time member as a child of the deceased’s family. The primary judge found that the evidence does not suggest that the applicant was supported by the deceased, to any significant extent, educationally, or emotionally. The primary judge found that the deceased simply acquiesced to the applicant’s presence in the matrimonial home, for a few relatively brief periods.

12. [38]

    This dispositive reasoning forming the basis of the primary judge’s conclusion about whether adequate provision for the applicant’s proper maintenance or advancement in life has not been made by the deceased’s Will did not find or take into consideration any allegedly disentitling conduct. Accordingly, the applicant’s principal submissions about the proper role of findings about domestic violence or family abuse in making an assessment of allegedly disentitling conduct does not arise in this case.

13. [39]

    The applicant’s remaining complaints raise no issue of principle, question of general public importance or an injustice which is reasonably clear, warranting a grant of leave to appeal in this case.

Conclusion and orders

1. [40]

   For the forgoing reasons, leave to appeal is refused with costs. The applicant also relied upon a notice of motion concerning procedural aspects of her proposed appeal relating to the joinder of Andrew and Vanessa who reside overseas. As leave to appeal is refused, that motion too should be dismissed. The orders of the Court are:

   1. (1)

      Leave to appeal refused;

   2. (2)

      Applicant’s notice of motion filed 3 May 2021 dismissed;

   3. (3)

      Applicant to pay the respondents’ costs.