Harris v Harris

1. [1]

   HER HONOUR: This is an application pursuant to s 59 of the Succession Act 2006 (NSW) (the Act) by the plaintiff (Andrew Harris) for provision out of the estate or notional estate of his late father (Hubert Estes Harris), who died on 15 October 2015. The first defendant (Jennifer Kay Harris) is the deceased’s widow and Andrew’s stepmother. She is aged 72 and was married to the deceased for nearly 35 years. Without intending any disrespect I will refer to the plaintiff, first defendant, and other family members by their first names. Jennifer is appointed as the sole executrix in the deceased’s last will dated 20 December 2013. Given the limited assets in the estate, Jennifer does not propose to apply for a grant of probate (see Jennifer’s 16-paragraph affidavit sworn 9 December 2016 at [2]-[3]).

2. [2]

   The second defendant, Halliday Shores Retirement Living Pty Ltd, owns and operates the retirement village where Jennifer and the deceased lived prior to the deceased’s death and where Jennifer remains living. Jennifer has the benefit, as lessee, of the balance of a 99-year lease, the deceased’s interest as joint tenant in the leasehold having passed on his death to Jennifer by survivorship. The second defendant filed a submitting appearance, save as to costs, on 31 January 2017 and has taken no active part in these proceedings.

3. [3]

   The third and fourth defendants are, respectively, the trustee and fund manager of the superannuation fund of which the deceased was a member. The superannuation benefits payable to the deceased’s estate on his death have now been transferred to Jennifer in her capacity as the reversionary superannuation beneficiary (in accordance with a nomination made by the deceased prior to his death) and hence do not form part of the deceased’s estate as such. The third and fourth defendants have filed a joint submitting appearance, save as to costs, on 16 November 2016. They too have taken no active part in these proceedings.

Procedural orders sought

1. [4]

   At the outset, I note that Andrew seeks the following procedural orders:

2. [5]

   Those orders were not opposed by Jennifer and will be made to permit the present proceedings to be properly constituted.

Background

1. [6]

   The relevant chronology of events can be briefly stated.

2. [7]

   Andrew is the adult son of the deceased and the deceased’s first wife, Janet Elizabeth Green. He is 42 years old. His mother is still living. The deceased and his first wife had three children together: Cassandra, who they adopted in 1972; Kathlyn (now deceased), who was born in 1973; and Andrew, who was born in 1975.

3. [8]

   The deceased and his first wife separated in 1978. Andrew was then about 3 years old. The deceased married his second wife, Jennifer, on 13 December 1980.

4. [9]

   After his parents’ separation, Andrew and his sisters lived first with their mother in Maryborough and then Melbourne (see Andrew’s affidavit sworn 25 October 2016 at [14] – to which I will refer as his first affidavit) until 1980 and then, after his mother became very ill, they moved to live with their father and Jennifer in Sydney (see Andrew’s first affidavit at [19]).

5. [10]

   In about 1989, when Andrew was about 14 years old, he moved back to live with his mother in Melbourne (see his first affidavit at [20], [30]). Andrew has deposed that he decided to move back to Melbourne to live with his mother because he was being subjected to sexual abuse by a close family member in his father’s home (see his first affidavit at [31]). (He has since identified this person as a male relative of Jennifer, who he says was about two years older than him at the time.)

6. [11]

   I interpose here to note that s 578A(2) of the Crimes Act 1900 (NSW) prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. However, there do not appear to have been any proceedings brought in relation to Andrew’s complaint and therefore this provision would not apply in the present case. Nevertheless, given that during the course of the hearing of these proceedings Andrew identified the (then) child who allegedly abused him, and these are unsubstantiated allegations, I consider that it is in the interests of justice to make orders pursuant to ss 7 and 8(1)(a)-(d) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the publication in Australia of that child’s name, or other material that would be likely to identify that person, and will direct that the transcript be redacted accordingly.

7. [12]

   Andrew has deposed that he kept in regular contact with his father from 1989 (when he moved back to Melbourne) to 1993 (when he was aged 18) (see his first affidavit at [35]-[42]). In cross-examination, Andrew said that he started taking marijuana around the age of 15 (by which time he was living in Melbourne); that this was when he was beaten up by 30 young men; and he agreed that he has taken marijuana extensively over the years since then (T 29.31-44). He also gave evidence (at T 36.29-30) that:

8. [13]

   Jennifer’s evidence was that the deceased had said to her on three or four occasions in the early 1990s, when they became aware that Andrew was taking drugs, words to the following effect:

9. [14]

   Andrew returned to live with his father and Jennifer at the end of year 12, having left school in Melbourne halfway through that year (see his first affidavit at [42]-[43]). Andrew has deposed that he stayed at his father’s place for about a year, during which time he was working in a yachting store and completing a TAFE course at Ultimo (see his affidavit at [44]).

10. [15]

    Andrew has deposed that when he was 18 he told his father that he had been sexually abused when he was young, but that he did not tell his father who had abused him. He places that conversation as occurring one evening when he, his father and Jennifer were discussing why he had left Sydney (see his first affidavit at [45]). He describes his father as being distraught by the news. Jennifer did not recall being told by her husband about a year prior to Andrew’s 19th birthday that Andrew was being abused by someone and said that she thought that if she had been told she would have made a point of finding out who Andrew was talking about (T 61.40). However, at some point she learnt from the deceased about the alleged abuse (T 62.15).

11. [16]

    Andrew has deposed that (after he had been living at his father’s house for about a year) his father asked him to leave his house and helped him to move into a property in Gladesville which he shared with a sailing friend; and that he was upset about this but remained in contact with his father (see his first affidavit at [47]-[48]).

12. [17]

    Andrew has deposed that in about 1994 he was at his father’s place and he told his father that it was a close family member who had abused him and that this person was related to Jennifer (see his first affidavit at [53]). In his first affidavit he placed this conversation as occurring the day before his father had suffered from a heart attack (which he said caused his father to suffer “a minor brain damage due to blood loss” and after which he said his father’s character had changed – see his first affidavit at [54]-[56]). Pausing here, Jennifer disputes that the deceased suffered a heart attack and brain damage at all. Her evidence is that the deceased suffered an aortic aneurysm; that it was in 1997; that she did not see any personality changes in her husband after that; and that her husband had had some short-term memory loss and concentration loss but had recovered totally and had run a business after the operation (see her 32-paragraph affidavit sworn 10 March 2017 at [16]; T 61.20-29; T 71.22-25).

13. [18]

    I regard Jennifer’s evidence where it conflicts with Andrew’s evidence as by far the more credible. Andrew conceded that his memory was “foggy” at times (T 28.14), and he was agitated and anxious in the witness box. Jennifer, on the other hand, presented as an honest and reliable witness. She conceded matters put to her in cross-examination (such as matters relating to her finance) and her wry acknowledgment as to the uncertainty and stress of her current position struck me as genuine (see the following exchange at T 56.21-37):

14. [19]

    Andrew’s evidence was that, following his father’s “heart attack” to the date of his death (in October 2015), they did not share the close relationship they once had but did remain in contact. He has deposed that they spoke to each other every few months, via telephone and emails (see his first affidavit at [60]).

15. [20]

    In the period from mid-1997, Andrew says that he was feeling depressed (see his first affidavit at [61]ff). He has deposed to having been taken by the deceased to Royal North Shore Hospital on one occasion but says that he did not agree to being admitted to the hospital that day and hence was not admitted on that occasion (see his first affidavit at [65]); and to his subsequent voluntary admission to the psychiatric unit at that hospital about three weeks later (see [67]), after which he says he moved into the deceased’s place for about three weeks (at a time that the deceased was overseas). He says that he and Jennifer “got into a massive fight because we were not getting along” and that when his father returned to Sydney he asked Andrew to leave (see his first affidavit at [71]). Jennifer denies that there was a massive fight while the deceased was away, but does agree that there were several disagreements with Andrew over that period. Jennifer deposes that Cassandra and Andrew’s two cousins were also living in the house at that time (see Jennifer’s 32-paragraph affidavit sworn 10 March 2017 at [25]).

16. [21]

    From about 1998 to 2002, Andrew lived in Melbourne (see his first affidavit at [77]). In April 2002, Kathlyn committed suicide (see Andrew’s first affidavit at [78]).

17. [22]

    Andrew has deposed that after his sister’s funeral (in 2002) the next time he saw the deceased was in 2011 but that in the meantime he and the deceased spoke regularly over the phone – at least every couple of months (see his first affidavit at [81]-[83]). Andrew refers to a dinner they had together in 2011 during an interstate visit by his father (see [83]-[85]) and says that, after that, they kept in contact by phone every few months until his father’s death (see [86]-[92]).

18. [23]

    In the period from at least 2007, Andrew was admitted from time to time to psychiatric or mental health units (as to which I give more detail later in these reasons, from [57]).

19. [24]

    In 2013, Andrew moved to Adaminaby, and then to Cooma a year later (see his first affidavit at [88]). He currently resides in rented accommodation in Berridale (which he described in the witness box as a bit of a “rat’s nest” – see T 26.17).

20. [25]

    Andrew did not attend the deceased’s funeral. He has deposed that his father rang to speak to him before his death and that his father told him that if anything was ever going to happen to him (i.e., to the deceased) all family was going to be invited to his funeral (including the family member who Andrew says had abused him); that his father told him not to attend if he was going to make a scene; and that he (Andrew) became distressed, they had an argument, and Andrew “hung up on him”, but then called his father later in the day and said he would like to attend the funeral (see Andrew’s first affidavit at [93]-[94]). Andrew says that when his father died he could not bring himself to attend the funeral; and that he spoke with Jennifer about a week later and told her he did not think he could have attended without “losing my cool and having a breakdown”. Andrew says that Jennifer said she understood and thanked him for not coming (see Andrew’s first affidavit at [95]).

21. [26]

    Jennifer confirmed that she had heard the deceased say to Andrew on the telephone a couple of weeks before his death that “I want you to come to the funeral. I don’t want trouble but the whole family is there” or “is going to be there” (T 69.22; T 70.6) and that the deceased told her that Andrew had said “How dare you invite [the alleged abuser]” (T 69.24, 69.28). Jennifer denies that the conversation which Andrew says occurred about a week after the funeral, ever took place and says that she did not hear from Andrew until about March or April the following year (T 70.40-71.2).

The deceased’s will

1. [27]

   Under the deceased’s will dated 20 December 2013, Jennifer is appointed as the deceased’s sole executrix and the deceased gives all of his estate to her (cl 3). There is provision, if Jennifer were not to survive the deceased for 30 days, for the appointment of Cassandra (or, failing that, another person) as the deceased’s executor and trustee; and in that event the deceased bequeaths to Cassandra any home the deceased owns at the date of his death together with all contents therein or the proceeds of sale from such home or long-term lease of property at Halliday Shores (cl 4). The residue of the deceased’s estate in that event is divided under the will as to 75% to Cassandra and 25% to another named residuary beneficiary. No provision is made for Andrew, nor is there any reference to Andrew, in the deceased’s will.

Application for provision

1. [28]

   Andrew’s application for provision is brought pursuant to s 59 of the Act, which provides, relevantly, that the Court may 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 an eligible person, having regard to the facts known to the Court at the time that the order is made, if the Court is satisfied that:

2. [29]

   Section 60(1)(b) of the Act provides that the Court may have regard to the matters set out in sub-s (2) for the purpose of determining whether to make a family provision order and the nature of any such order. Relevantly, those matters include:

3. [30]

   It has been made clear in many cases, including recently in the Court of Appeal in Sgro v Thompson [2017] NSWCA 326, that what is required is a multi-faceted evaluative approach to the question posed by s 59 of the Act as to whether adequate provision was made for the proper maintenance, education or advancement in life of an applicant. In Sgro, Payne JA (agreeing with White JA) said at [6]:

4. [31]

   It is also well recognised that the evaluative judgment made under s 59(2) is fact specific (see Sgro at [67] per White JA, with whom McColl JA agreed).

5. [32]

   There has been debate as to whether the two-stage analysis held to have been applicable to claims for family provision under the predecessor legislation (as articulated in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 210-211) is applicable to claims made under the corresponding provisions of the Act (see Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308; v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113; Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641; Burke v Burke [2015] NSWCA 195; (2015) 13 ASTLR 313). That debate was referred to by White JA in Sgro at [68], his Honour going on to observe (at [69]) that the question should be of no real significance, provided that the nature of the first stage of the inquiry is not misunderstood; and that (if the two-stage approach is still to be adopted) the same considerations apply at both stages of the inquiry (see [70]).

6. [33]

   White JA identified the risk of error, if a two-stage approach is adopted, as being that the first stage of the inquiry may be seen to be confined to an assessment of the adequacy of the provision made for the applicant to satisfy his or her financial needs (at [73]), emphasising that the question is as to the adequacy in all the circumstances of the provision made for the “proper” maintenance, education or advancement in life of an applicant (see [72]-[74]). His Honour (at [72]) expressed his agreement with the reasoning of Basten JA in Andrew v Andrew that the structural changes between the Family Provision Act 1982 (NSW) and Ch 3 of the Act mean that a two-stage approach is generally no longer appropriate.

7. [34]

   Having regard to the reasons in Sgro, I approach the task in the present case as one requiring a multi-faceted evaluative approach, noting the distinction emphasised by Basten JA in Chan v Chan [2016] NSWCA 222 at [22] between an applicant’s needs and the adequacy of provision.

8. [35]

   Before turning to consider the relevant matters in the present case, it is also necessary to note that Part 3.3 of the Act contains provisions relating to the making of notional estate orders for the purpose of making a family provision order or for the purpose of ordering that costs in the proceedings be paid from the notional estate. This is relevant here, given that the deceased’s interest as joint tenant in the lease of the retirement villa, which passed to Jennifer by way of survivorship, as well as his half interest in their joint bank account and his superannuation benefits that passed to Jennifer by reason of the nomination made by him as beneficiary (and thus did not form part of his actual estate), all constitute property that could be designated notional estate (see ss 75 and 76). Section 78 provides:

9. [36]

   The Court must not make a notional estate order unless it has considered the matters set out in s 87 of the Act (including the importance of not interfering with reasonable expectations in relation to property and the substantial justice and merits involved in making or refusing to make the order) and must not do so unless satisfied of one of the matters in s 88 of the Act (including that the deceased person’s estate is insufficient for the making of the family provision order or any order as to costs that the Court is of the opinion should be made).

10. [37]

    I turn then to the matters relevant to the determination to be made in the present case.

11. [38]

    While the family relationship between the deceased and Andrew is not in dispute (and nor is its duration), the closeness of that relationship over the period of Andrew’s life is in dispute.

12. [39]

    Andrew maintains that his relationship with the deceased was a close one (as described in his first affidavit from [11]-[95]) and submits that he is a person who has a strong claim to the testamentary bounty of his late father’s estate and notional estate. His first affidavit recounts incidents from his childhood years – birthday presents and the like. Of more relevance, in my opinion, is the nature of the relationship in his adult years and particularly in the decade or so before his father’s death.

13. [40]

    From the chronology set out earlier (see from [6]), it can be seen that the contact between Andrew and the deceased in the years prior to the deceased’s death was sporadic and limited mainly to telephone and email exchanges (the frequency of which was disputed). On Andrew’s own evidence he saw his father only once after the funeral of his sister in April 2002 (that being in 2011) and not at all after 2011.

14. [41]

    Jennifer accepted in cross-examination that Andrew had maintained contact with his father over the years but described it as “occasional”; accepting that there were telephone calls between the two but saying that they were occasional and that there were emails but not a lot (see T 65-66). Jennifer said that she had read the emails (as I understand it, this was after the deceased’s death) and that they were mainly about fishing and yabby traps (a passion of Andrew’s, to which I will come in due course – see at [73]) (see T 66.31). In cross-examination there was the following exchange about the emails and telephone calls (at T 67.3-27):

15. [42]

    The email communications were not in evidence but there is no reason not to accept that there was email and telephone contact from time to time between Andrew and his father (the frequency of which seems likely to have been exaggerated by Andrew, whose evidence I did not regard as particularly reliable, as noted earlier at [18]).

16. [43]

    Jennifer’s evidence as to upsetting emails having been sent to the deceased is consistent with the evidence of disputes with Andrew within the family over the years (not only as to Andrew’s drug use but also as to the allegations he made against Jennifer – to which I refer from [84]); as well as with Andrew’s own evidence as to the last telephone conversation he had with his father (when he says he hung up on his father, though later calling him back). I consider that Jennifer’s evidence as to the degree of contact between Andrew and the deceased over the last dozen or so years of the deceased’s life is more likely to be accurate than that of Andrew (who himself conceded that his memory of events was “foggy” – at T 28.14). In that regard, though Andrew gives an explanation for this and though I do not suggest that this is in any way determinative, it is relevant to note that Andrew did not honour his father’s request that he attend his funeral.

17. [44]

    The conclusion I draw from the evidence is that at least from 2002 to the time of the deceased’s death, although there was contact between the deceased and Andrew from time to time there was not a particularly close father/son relationship. I accept Jennifer’s evidence that it was a strained relationship. Indeed, Andrew himself accepted that his father had been unhappy at his use of drugs (corroborating Jennifer’s evidence that the deceased had expressed his disappointment at this) and that the relationship with his father was not as close after his father’s operation (which Jennifer placed as being in 1997).

18. [45]

    It was not disputed that both the deceased’s widow and his son were natural objects of the deceased’s testamentary bounty. In the case of Jennifer, she had been his wife for almost 35 years and there is no suggestion that this was other than a happy marriage over the years. Jennifer’s comment in the witness box that there was not a lot they had kept back from each other over the years rang true. Also, it is apparent that Jennifer had welcomed the deceased’s children from his first marriage into their home and had cared for them over the years. Relevantly, he now accepts that his father would have wanted Jennifer to be secure in her old age. In his affidavit sworn 2 November 2017 (to which I will refer as his third affidavit), Andrew deposes “that it would have been my father’s wish for Jennifer to be secure during her life” (at [15]).

19. [46]

    In the case of Andrew, again he is a natural object of his father’s bounty and it is apparent that over the years the deceased provided support and encouragement to him. I consider later (from [108]) the observations made in the authorities as to the position of adult children in family provision applications of this kind, particularly where the child in question has fallen on hard times or is suffering from a particular disability. Suffice it here to note that Jennifer accepts that Andrew has a competing moral claim which must be considered in this context.

20. [47]

    The deceased’s actual estate at his date of death was small – comprising $7,943.00 after payment of liabilities (those being credit card debt and funeral expenses) (see Jennifer’s 16-paragraph affidavit sworn 9 December 2016 at [4(a)], [5]-[7], [13]).

21. [48]

    The deceased’s potential gross notional estate (leaving aside the costs of the current proceedings) was calculated by Andrew (in his amended submissions filed 13 December 2017) at $627,307.65 (projected up to the date of the final hearing), comprised of:

22. [49]

    On the calculations handed up by Counsel for Jennifer at the hearing, the potential notional estate was slightly less – being $599,111.31, comprised of the half leasehold interest ($230,000) and the deceased’s superannuation entitlements (as at 29 November 2017 being $369,111.31). The deceased’s superannuation entitlements were transferred to Jennifer as a reversionary beneficiary and are paid as an allocated pension. These calculations do not appear to take into account the half share of the joint bank account moneys (item (a) above). Nor do they take into account the reversionary superannuation pension stream (item (d) above) – that being because it is argued for Jennifer that to include this amount would, to a large extent, amount to double-counting.

23. [50]

    Suffice it to note that although the potential notional estate is in the order of $600,000 (and will vary up and down with the performance of the superannuation fund in which much of the cash component is invested), a significant portion of this is the deceased’s half interest in the lease of their retirement villa, which passed to Jennifer by survivorship and which could only be realised if there were to be a sale of the lease.

24. [51]

    As noted earlier, Andrew is now 42. He is single and has no dependants (see his first affidavit at [98]-[99]). He rents a two bedroom cottage in Berridale for $120 per week (see Andrew’s third affidavit at [6]).

25. [52]

    Andrew is currently unemployed – and has not been employed since 2000 when he worked as a motorbike courier (see his first affidavit at [103]). He is in receipt of a disability support pension of about $1,004 per fortnight (see his first affidavit at [102]). He effectively has little in the way of assets (his main asset seems to be his car, which is the subject of finance from Westpac). He has deposed that he has debts of about $12,000 (see his third affidavit at [12]), relating to a Westpac loan of around $8,876 in relation to his car (which he refinanced not so long ago), his repayments for this loan being $323.15 per month; and a loan from his mother (of which $3,300 is outstanding) to pay for compulsory third party insurance for his car and to assist Andrew to recover the car after it was repossessed during a period in which he was in hospital. He has an arrangement with his mother to repay her $200 per month till his debt to her is repaid. His repayments on those two loans therefore come to around $523.15 per month.

26. [53]

    Andrew has deposed that he finds it hard to live on the disability support benefits; often misses meals; eats cheaply and has no funds for recreation (see his third affidavit at [12]).

27. [54]

    In his affidavit sworn 15 March 2017 at [12] (to which I will refer as Andrew’s second affidavit), Andrew deposed to the receipt of payment of a sum of $54,599.07 in February 2013 for a total and permanent disablement claim (on the basis of “psychosis”). He has deposed that he spent this amount in the following way: $12,000 towards the purchase of his current vehicle; approximately $5,000 towards relocation costs when he moved to Adaminaby in 2013; approximately $5,000-$10,000 in trying (unsuccessfully) to establish a yabby farming business when he moved to Adaminaby; and, over the next three years or so, to meet the shortfall in his expenses compared to his income (see at [13]).

28. [55]

    Andrew has deposed that he has no “physical health condition” but says that he has been diagnosed with “Cyclothymic Bipolar Disorder” for which, as at October 2016 he was not taking any medication (see his first affidavit at [104]).

29. [56]

    In Andrew’s second affidavit (at [4]-[5]), he has deposed that he suffers from bipolar disorder and anxiety; that he has recently been referred to a psychiatrist (Dr Butterfeld) with whom he “discussed the possibility that [he] also suffer[s] from post-traumatic stress disorder (PTSD)”. Pausing here, though there is reference to the possibility of such a disorder it is not clear that there has been a formal diagnosis as such; nor is it clear to what the potential PTSD relates (the alleged sexual abuse when he was a minor or the alleged assault by a large group of men when he was a teenager) – nothing, however, turns on this. Andrew describes in that affidavit (at [8]ff) his stress and anxiety during the course of the proceedings and when he was notified that he would need to attend a judicial settlement conference in these proceedings on 2 February 2017 (which he did not attend). (In the witness box during the hearing, Andrew also referred to his anxiety, telling me that he had taken Valium during the hearing – see at T 37.20.)

30. [57]

    There was no evidence from a medical expert as to Andrew’s psychiatric condition but there are a number of documents in evidence which point to him suffering from psychiatric illnesses or conditions of various kinds. Bearing in mind that some of the content of those documents appear to depend on the accuracy of the history given to the relevant health professionals, they nevertheless paint a picture of ongoing mental health problems. That material includes the following.

31. [58]

    Annexed to Andrew’s second affidavit are various mental health discharge/separation summary reports: these refer to an involuntary admission, by police and CATT, on 24 April 2007 (noting Andrew’s previous psychiatric history as including his “first involvement with mental health” at 21 years old; a diagnosis with Bipolar Affective Disorder at 22 years old) “because of relapse of mania and bizarre behaviour” (noting that on admission Andrew had delusional ideas about being robbed and treated badly by police); and an admission on 18 May 2007 (after case management following a discharge on 10 May 2007 from an inpatient unit on a community treatment order). (There was no evidence to assist in the interpretation of these admission/discharge reports.)

32. [59]

    A letter headed “To whom it may concern” and dated 30 March 2012 on NorthWestern Mental Health letterhead refers to admissions to the psychiatric impatient unit from 20 April 2007 to 10 May 2007 and from 16 May 2007 to 25 May 2007, noting that Andrew was also a “client” of their service between 1 April 2004 and 23 June 2004; and that he was treated under a Community Treatment Order from 11 September 2003 until 5 November 2003 and from 10 May 2007 until 13 November 2007.

33. [60]

    A discharge referral report dated 6 March 2015 refers to a “long history of Bipolar Affective Disorder, complicated in the past by substance abuse” and recording delusional statements by Andrew on his admission to Cooma Emergency Department on 14 January 2015.

34. [61]

    By letter dated 31 March 2015, Dr Teresa Foce, a psychiatrist and psychotherapist, reports that she had reviewed Andrew that day; that he was recently admitted to the Chisholm Ross Centre (in Goulburn) “with a manic episode with a long history of Bipolar 1 Disorder and Cannabis use disorder” and that he was discharged on 5 March 2015 on a number of medications. Dr Foce noted that he presented as “over-medicated” and that he presented “very late for his appointment today leaving inadequate time to obtain his background history”. Dr Foce stated that there was no evidence of a formal thought disorder; no suicidal ideation; and that Andrew displayed a “reasonable range of affect”.

35. [62]

    A facsimile transmission dated 14 May 2015 from Professor Cathy Owen in the Queanbeyan Community Mental Health Service states that she reviewed Andrew via video conference as locum for Dr Foce. In that report she notes that Andrew had coped with a stressful experience of his mother taking an overdose “remarkably well” without any relapse of symptoms and had remained well since stopping some medication.

36. [63]

    A letter dated 21 October 2016 from a Sexual Assault Worker, Cooma Community Health, headed “To Whom it May Concern”, provided at Andrew’s request “in support of a current court matter regarding his father’s deceased estate and his diagnosis of C-PTSD [Complex PTSD] and Bipolar Affective Disorder”, states that Andrew has been a client of the service since 12 May 2015, having been referred by a case worker at Mission Australia after disclosing to her that he was sexually abused as a child or young person.

37. [64]

    That letter notes Andrew’s statements that he had reported the sexual assaults to Chatswood Police Station in 1998 and Queanbeyan Police in early 2015; that when he rang the former to find out what happened to his report “he was told that the case was closed as his step-mother had been contacted and told the police that Andrew was on drugs and couldn’t be trusted to tell the truth” (Jennifer denied on oath in the witness box that she had ever been contacted by Chatswood police – see T 63.19, 63.30-37, 64.1-19). The letter (obviously based on the history given to her by Andrew) goes on to state:

38. [65]

    The letter states that during clinical counselling sessions over the last 16 months Andrew has been observed to display “symptoms consistent with a diagnosis of Complex PTSD, the impact of the trauma has significantly impacted upon Andrews [sic] quality of life and functioning”. The letter states that notes reviewed in his mental health file note that he has been diagnosed with Bipolar Affective Disorder. (This letter does not amount to a formal diagnosis of PTSD as such.)

39. [66]

    A letter dated 2 February 2017 from a Cooma doctors’ surgery refers to Andrew’s last admission to the mental health service being in March 2015 to the Chisholm Ross Centre in Goulburn and to his diagnosis as Bipolar Affective Disorder but states that he was currently stable.

40. [67]

    In Andrew’s third affidavit, he deposes to his compulsory treatment in the mental health unit at Bega from 21 July 2017 to 30 August 2017, after a “relapse” of his schizophrenia. Following his discharge, he says he moved back to Cooma and then relocated to Berridale (see [5]-[6]). He deposes (at [7]) that he remains under a six month community treatment order whereby he attends the outpatient clinic at Cooma Community Mental Health where he has fortnightly sessions and monthly injections of Paliperidone (a drug that he says has less side effects and seems hopeful that it will lead to a more positive long term outcome than earlier medication – see below).

41. [68]

    A short report prepared by Dr Brendan Smith, VMO psychiatrist, dated 6 September 2017, is annexed to the affidavit of Richele Nelsen sworn 7 September 2017. In that report, Dr Smith confirms Andrew’s admission to the South East Regional Hospital’s Mental Health Inpatient Unit on 21 July 2017 and says that Andrew was diagnosed with a psychotic relapse of his schizophrenia. (That report was relied upon for the vacation of the September hearing dates in this matter.)

42. [69]

    Andrew submits that his medical records indicate that relapses have occurred when he has ceased taking psychiatric medication, but notes that there have been periods when his treating psychiatrists have decided not to prescribe medication. He says he is now taking medication again, and the current medication (Paliperidone) has less side effects than any previous medication and is assisting him in managing his mental health and controlling his life (see third affidavit at [11]).

43. [70]

    Annexed to his solicitor’s affidavit sworn 4 September 2017 is a copy of determination by the Mental Health Review Tribunal on 9 August 2017 that Andrew is a mentally ill person and must be detained in or admitted and detained in the Bega hospital for further observation or treatment, or both, as an involuntary patient unless discharged, until a date no later than 4 October 2017. The stated reasons of the members were that: Andrew had symptoms of mental illness, delusions and grandiose ideas such as defying gravity; that he needs care and treatment for protection of others and also of his own reputation and aggressive behaviour with others; and that he does not think he needs treatment so an order is necessary. The Tribunal decided to make no order for management of Andrew’s estate under the NSW Trustee and Guardian Act 2009 (NSW). There is nothing to indicate the basis on which it was decided to make no order for management. It can only be assumed that the Tribunal considered that Andrew was competent to manage his estate notwithstanding the mental issues that lead to his detention in or admission to Bega hospital at that time.

44. [71]

    As noted earlier, Andrew left school halfway through year 12. He subsequently studied at TAFE when first living with the deceased and Jennifer. He completed year 12 and obtained a TAFE Certificate in 1994 in retail operations (see his first affidavit at [100]-[101]) and then had a succession of jobs. He has not worked since 2000.

45. [72]

    Andrew enrolled in a 12 month TAFE course in a certificate in animal science in 2017. In his second affidavit he deposed (at [16]) that, following this, if he completes a further diploma of animal science he would be qualified to be a veterinarian assistant. He there deposed (at [17]) that his aim was to become a fully qualified veterinarian (referring to a six year dual degree course in veterinary science and animal science at Charles Sturt University). In his third affidavit he deposes (at [14]) that he missed too much time from the course to resume his TAFE studies for the remainder of 2017 and that, while he would love to be a vet, he accepts that “it is more realistic and suitable” for him to work in other animal related areas once he has his certificate (such as working as an animal assistant in a vet hospital or helping to look after pets in a pet store).

46. [73]

    Andrew does not believe he could work full time again (see his first affidavit at [120]). However, as noted above, he says that he would like to work with animal care in a veterinary hospital or a pet shop. Andrew’s evidence was that he intended to resume his TAFE certificate III studies this year (i.e., in 2018) (see his third affidavit [13]-[14]). There was evidence from Andrew as to his development of a new form of yabby trap that he wishes to patent and then market. (There was also evidence as to his failed attempt to establish a yabby business when he first moved to Adaminaby.) Andrew was not prepared to divulge information as to the proposed patent application for fear of losing confidentiality in the subject of the application. It seems that this proposed venture is at least part of the basis on which it is submitted for Jennifer that there is a basis to suspect that any provision for Andrew is likely to be wasted at the expense of her well-being (see below). For Andrew it was submitted that the prospect that he might profit from such a venture should not operate to reduce any provision to be made for him. In my opinion, apart from explaining how Andrew spends his time and his future interests, I take nothing from the fact that he has in mind such a venture if provision were now to be made for him.

47. [74]

    In summary, as to his needs, Andrew seeks provision to improve his quality of life; give him stable accommodation; access private psychiatric care; and to facilitate his animal care studies.

48. [75]

    As noted earlier, Jennifer is 72 years old. She has suffered in the past from both breast cancer and lung cancer. She has high cholesterol and has been diagnosed with osteoporosis as well as anxiety and depression. She continues to receive treatment such as mammogram and ultrasound, CT scan of lungs and blood tests. Her evidence is that she has been told by her doctor that there is a 70% risk of recurrence of breast cancer and a reduced life expectancy (see Jennifer’s affidavit sworn 7 August 2017 at [24]). Her medical needs and pharmacy requirements total about $200 per month (at [9]). Jennifer has given evidence that she requires dental work; that she can expect to require hearing aids; and that she will require a reduction of the left breast (the estimated cost of those treatments totalling around $20,000 as per [25]-[27] of her affidavit sworn 7 August 2017).

49. [76]

    Jennifer is anxious not to leave the retirement village and she would like funds to provide for contingencies including worsening health. Her general practitioner’s report as at 5 May 2017 included the statement that “the greatest threat to her wellbeing at the moment and a cause of great suffering and stress related health issues is the prolonged legal matters which she is enduring” (Annexure P to Jennifer’s affidavit sworn 7 August 2017).

50. [77]

    Cross-examined as to the state of her physical health, there was the following exchange (at T 56.39-46):

51. [78]

    Jennifer’s assets (other than those which might be designated as notional estate) at the time of the hearing comprised the following:

52. [79]

    On Andrew’s calculations, Jennifer’s net assets (excluding potential notional estate) amount to $324,329 (comprising $230,000 as the present exit value of the retirement village lease and $94,329 in cash); on Jennifer’s updated figures they amount to $313,566.80 (comprising $230,000 plus $83,566.80).

53. [80]

    By way of clarification, I note that Jennifer has four sources of monthly income, totalling about $3,886.99 per month ($46,644 per annum) and essential expenditure of $3,512.37 per month ($42,148 per annum) – see Jennifer’s affidavit sworn 7 August 2017 (at [7]-[8]). Those four sources of income are: the reversionary allocated pension of $1,456.67 (which was previously the deceased’s); her own allocated pension of $321.67; a United States Defence pension of approximately $1,689.55 dependent on exchange rates; and a part Aged pension of $419.10. The $353,794.59 representing the deceased’s superannuation fund (which reverted to Jennifer on his death) is held and managed by the superannuation fund managers (though able to be drawn down by Jennifer) (see cross-examination at T 43-45).

54. [81]

    Pressed on her financial position in cross-examination, there were the following exchanges (at T 58.34ff):

55. [82]

    In re-examination, there was the following exchange (at T 72.31ff):

56. [83]

    It would seem that over his life Andrew has caused the deceased not insignificant disappointment and upset, both in terms of his drug use and in relation to his conduct towards Jennifer.

57. [84]

    In this regard, it is relevant to note the allegations made by Andrew in the witness box against Jennifer. These relate to the time just after he was discharged from the psychiatric unit at Royal North Shore Hospital and he went to stay at the deceased’s house for a few weeks. The deceased was overseas at the time. In his first affidavit, as earlier noted, Andrew deposed that “Jennifer and I got into a massive fight because we were not getting along” (at [71]). Questioned about this in cross-examination, Andrew said (at T 29.16-18):

58. [85]

    Jennifer was not questioned directly about this and there is nothing to substantiate this allegation. (Having regard to other evidence of delusional ideas from time to time – defying gravity, or that his great-grandfather was a king – this seems likely to be no more than another wild allegation on Andrew’s part.) When it was put to Jennifer that her attitude towards Andrew had changed when she became aware of the allegation that a relative of hers had abused him, there was the following exchange (at T 65.10-19):

59. [86]

    The reference to being accused of dreadful things may well relate to allegations of the kind referred to above, but this was not explored further.

60. [87]

    Andrew’s evidence was that when his father returned from the overseas trip his father had asked him to leave the home to avoid further conflict. Whether or not this had to do with conflict over accusations of “dreadful things” made by Andrew against his stepmother, Andrew’s own evidence paints a picture of a troubled relationship between Andrew and his father and stepmother at various points in their relationship. It is not surprising that Jennifer would have been upset at allegations of this kind if any were in fact made by Andrew in relation to her at the time and no doubt the making of them would also have been upsetting to the deceased. I am not in a position to make any finding about this but simply note Andrew’s evidence in the witness box as pointing to a likely history of upsetting conduct between him and the family

61. [88]

    As already noted, Jennifer’s observation was that the relationship between the deceased and Andrew was strained and that they talked on the phone infrequently.

62. [89]

    Although Andrew in the witness box described his father’s support or contribution to his welfare over the years as minimal, the evidence at least establishes that the deceased paid school fees and housed Andrew from 1980 until he was 14 years old; supported him from time to time when Andrew returned to Sydney to stay with the deceased and Jennifer; and provided emotional and practical support when Andrew was taken to Royal North Shore Hospital and, on at least one occasion, responded to a plea from Andrew’s mother for help locating Andrew. There is no evidence to support the accusation recorded in one of the medical notes that the deceased treated Andrew badly or was responsible in any way for the alleged sexual abuse.

63. [90]

    The evidence of testamentary intention is limited to that which is to be found in the will itself.

64. [91]

    Andrew’s mother is still alive. There are references in various of the medical reports to suggest that she suffers from some difficulties of her own but that she has nevertheless been supportive to Andrew in the past, both financially (with the loan in relation to his car) and emotionally (see the notes of his last admission to the psychiatric unit).

65. [92]

    I have already referred to the length of the marriage between the deceased and Jennifer. There is nothing to suggest that she was other than a support to him throughout their marriage.

66. [93]

    Jennifer’s solicitor/client costs up until the end of the final hearing were estimated to be $63,000 (see affidavit of John Katen sworn 4 August 2017 at [3]). Given that the estimate was for a two day hearing and the matter was concluded in one day, one would expect there to be some reduction in that amount. Andrew’s party/party costs on the ordinary basis up until the end of the final hearing were estimated at a much greater amount in relative terms (namely, $91,600 inclusive of GST) (see affidavit of Richele Nelsen filed 3 November 2017 at [7]; and see also her affidavit sworn 8 December 2017, which included an increased estimate of $109,000 inclusive of GST – at [5]). Counsel for Andrew confirmed that this amount should reduce to around $80,000 by reference to the shortened hearing time (see T 80.16-19). I was informed from the bar table that the reason for the higher costs in the preparation and conduct of Andrew’s case was in part referable to the difficulties his solicitors had experienced in making contact with and obtaining instructions from him (including the need to hire private investigators to locate him at one stage) (see T 81.2-10).

67. [94]

    If some $154,600 in costs were to be ordered out of assets designated as notional estate for that purpose, on my calculations this would leave somewhere in the order of $472,707.65 (using Andrew’s figures, though in his written submissions he reached a figure of $480,730.65 – see at [10]) or $444,511.31 (on Jennifer’s calculations) as the deceased’s potential net distributable notional estate. In oral submissions at the hearing, Counsel appearing for Andrew submitted that the relevant figure should be $507,000, referable to an extra $15,000 due to an increase in the superannuation reversionary fund under management at that time (see T 80.25ff; Exhibit A.1), though accepting that insofar as the funds encompass shares the value of the fund will vary up and down from time to time.

Submissions

1. [95]

   Andrew points to statements in the authorities to the effect that the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims (see Bladwell v Davis [2004] NSWCA 170 per Bryson JA at [18]; Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201 at [98]; see also the principles set out by Hallen J in relation to the determination of claims by adult children in Gray v Mather [2016] NSWSC 699 at [90]-[91] and Epov v Epov [2014] NSWSC 1086 at [153]-[156]). In particular, reliance is placed by Andrew on the statement by Hallen J in Epov, at [153(f)], that:

2. [96]

   As to the discretion to designate notional estate pursuant to ss 87-89 of the Act, reference is made to Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4.

3. [97]

   Andrew acknowledges (somewhat belatedly perhaps) that his father would have wanted Jennifer to be secure during her life, but claims that he should also have been the object of his late father’s bounty. Andrew submits that it should be found that the provision made by his father’s will was inadequate, and that provision should be made in his favour, out of his father’s notional estate, in two tranches as follows:

4. [98]

   It is submitted that the “up-front” cash component of $100,000 would still leave Jennifer with other cash reserves of $245,059.65.

5. [99]

   What that fails to take into account is the impact of any reduction in capital on Jennifer’s income. Jennifer’s affidavit sworn 7 August 2017 set out her then current position in relation to her income and expenditure and assets. In Jennifer’s updating affidavit sworn 22 November 2017 she discloses that her essential monthly expenditure is now increasing. The charges at the retirement village were to increase by $64 a month from 1 January 2018 (at [5]). In practical terms there is only a small buffer after essential monthly expenditure and provision needs to be made for future expenses related to her breast cancer and for dental work.

6. [100]

   It is submitted for Jennifer that, regardless of the result of Andrew’s claim, in reality she will have to pay her own legal costs (in the absence of recovery from him) and that this will depreciate the capital she has and the income she will receive from the capital.

7. [101]

   It is submitted for Jennifer that the evidence discloses that she was a devoted wife and that she and her husband had a happy marriage of many years before his death. She is not in a position to work and, in all the circumstances, while the provision made for her from her own and her husband’s superannuation provides her with a sustainable living, she does not have significant assets. In those circumstances the matters raised by Powell J in Luciana v Rosenblum (1985) 2 NSWLR 65 and the Court of Appeal in Golsky v Golsky [1993] NSWCA 111 are said to be applicable, and the needs of Jennifer are said to be of significant importance.

8. [102]

   It is further submitted for Jennifer that Andrew still has his life ahead of him; that it is up to him as to what he does with his life; and that there does not appear to be “any solid basis” to believe that any money will actually improve his long-term life (noting that Andrew has apparently had a long history of bipolar disorder and cannabis use disorder, and a history of taking medication and then stopping taking it). It is noted that Andrew is currently able to operate on his Centrelink payments and has reasonably inexpensive rent; that he has worked as a courier and has a TAFE trade certificate; and that there is little evidence, if any, of his attempt to work or find work in recent years. There is a suspicion that any money he would receive to the detriment of Jennifer’s well-being would be wasted.

9. [103]

   Reference is made to the recognition by the Court in numerous cases that it has never been intended by the legislature that freedom of testamentary disposition should be so encroached upon that a testator’s decision expressed in his will have only prima facie effect, the real dispositive power being vested in the Court. In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19; [1962] HCA 19 Dixon CJ said:

10. [104]

    Reference is also made to what was said by Young J (as his Honour then was) in Bondy v Vavros (Supreme Court (NSW), Young J, 29 August 1988, unrep) that “when one is considering what a wise and just testator would have done, if one can see that the plaintiff is a spendthrift and the testator has arranged his will in such a way as to limit the funds flowing to the plaintiff, then one may very well come to the conclusion that the plaintiff has failed to establish that there has been any breach of moral duty” and to what Campbell JA said in Hampson v Hampson [2010] NSWCA 359; (2010) 5 ASTLR 116 at [101]:

11. [105]

    It is submitted that in all the circumstances there is not enough in the estate or notional estate to provide for what Andrew is seeking unless Jennifer (the widow of a long-standing marriage) is to be severely affected in her old age.

Determination

1. [106]

   In Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127], White JA said:

2. [107]

   In Sgro, White JA (with whom each of McColl JA and Payne JA agreed) said (at [86]):

3. [108]

   I accept the statement of general principle in Taylor v Farrugia [2009] NSWSC 801 at [58] that:

4. [109]

   However, in the present case, taking into account all the circumstances referred to above, I am not persuaded that the deceased, in not making any provision for Andrew in his will, failed to make “proper” provision for his maintenance, education and advancement.

5. [110]

   When considering the exercise of his testamentary bounty, the deceased was faced with the undoubted moral obligation he owed to his long-standing wife to ensure she was secure in her retirement accommodation and protected against the vicissitudes and contingencies that might affect her in old age; to be balanced, of course, against the needs of his adult children – relevantly, here, those of Andrew. I accept that Andrew has needs arising from his long-term psychotic condition that must be taken into account. However, he is currently on medication that is having a positive effect; he has rental accommodation (though modest) in an area he finds peaceful and with ready access to the venue from which he engages in his passion for yabby trapping. He is undertaking a TAFE certificate course that gives him the prospect of working with animals and he is not, in any event, looking for full-time work lest it impact on his disability support pension. He is currently able to manage, albeit in a modest fashion on a disability support pension with at least some expectation of support from his mother.

6. [111]

   No doubt Andrew may face financial and/or health challenges as he himself grows older but it is likely that he will fall back on the disability support systems available to someone in his position, as he has to date. It cannot in my opinion seriously be suggested that community expectation would be that the deceased should put his long-standing wife in a position where she is required to vacate her villa in the retirement village (in which she feels secure and which is her home); nor does Andrew now seek this. However, to impose a charge on her leasehold interest (as is sought by way of deferred provision) would place Jennifer at risk of being unable to afford nursing home accommodation should that become necessary in due course. Moreover, any reduction in her capital (comprised of the combination of her and the deceased’s superannuation funds) will necessarily reduce her monthly income, which only just covers her essential expenditure at the present time.

7. [112]

   The example given in submissions for Jennifer is instructive. If her current assets were to be reduced by, say $100,000 (taking into account her own costs of the litigation and awarding Andrew a legacy of, say, $15,000 together with costs capped at $15,000), Jennifer’s expected monthly income would be reduced by some $340.84. Coupled with the 2018 increase in the retirement village levy of $64 a month on that calculation Jennifer would be worse off by at least $404 a month. It is submitted, and I accept, that this would have a quite significant effect on her financial circumstances.

8. [113]

   The stress placed on Jennifer by the current litigation is understandable (see her doctor’s report). She has in effect had to put “on hold” dental and other treatment as a result of the need to place her legal representatives in funds to defend this litigation. The reality is that Jennifer will have to bear her own costs of defending the proceedings. That will have an impact on her by reducing the capital otherwise available to meet her ongoing needs.

9. [114]

   Had I been persuaded that inadequate provision had been made by the deceased for the proper maintenance, education and advancement in life of Andrew, I would have ordered only the provision of a very small legacy in Andrew’s favour (in an amount of, say, $15,000 to enable him to discharge his current loans) and would have capped the costs recoverable by him in a like amount. As it is, I am not satisfied on the threshold question that must be established in order for provision to be made under s 59, so this question does not arise.

10. [115]

    Further, as I am not satisfied on the threshold question and thus will not make a family provision order, the requirements (in s 78(2)) for the making of a notional estate order as to costs, pursuant to s 78(1)(b) of the Act, are not met. In those circumstances, each party should bear his, her or its own costs of the proceedings.

Orders

1. [116]

   For the above reasons, I make the following orders:

   1. (1)

      Pursuant to s 91 Succession Act 2006 (NSW), order that administration in respect of the estate and notional estate of the deceased, Hubert Estes Harris, who died on 15 October 2015, be granted to the plaintiff, Andrew Harris, for the purposes only of permitting his application for a family provision order.

   2. (2)

      Dispense with compliance with the Court Rules in relation to Order 1 above.

   3. (3)

      Pursuant to Rule 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW), appoint the first defendant, Jennifer Kay Harris, to represent the estate of the late Hubert Estes Harris, for the purposes of these proceedings.

   4. (4)

      Dismiss the plaintiff’s claim for provision out of the deceased’s estate.

   5. (5)

      Order that each party pay his, her or its own costs of the proceedings.