Watton v MacTaggart

1. [1]

   HER HONOUR: This matter involves an application by the plaintiff (Jannette Dorothy Watton) for an order pursuant to s 59 of the Succession Act 2006 (NSW) (Succession Act) for provision out of the estate and/or notional estate of her deceased father, the late Ronald Bruce MacTaggart (the deceased).

2. [2]

   The deceased died on 19 February 2018 aged 96 years, leaving two surviving children: his daughter, Jannette, who is now almost 69 years old, and the defendant, his son David John MacTaggart, who is six years younger than her. Another two sons of the deceased (Don and Bruce) had predeceased him. Without intending any disrespect, I shall generally refer to the family members in this judgment by their first names.

3. [3]

   The deceased left a Will dated 28 November 2017 (the Will). Probate of that Will was granted to the defendant on 20 June 2018. Under the Will, the deceased’s residuary estate was divided into two equal parts. The deceased left a half share of his residuary estate to David and the remaining half share was to be divided equally amongst 19 beneficiaries (comprising Jannette, David, and 17 named grandchildren and great-grandchildren living at the time of the deceased’s death). Effectively, therefore, under the Will, David is to receive a 50% share of the residuary estate together with a further 1/19th share (i.e., a 20/38th share of the residuary estate); and Jannette is to receive a 1/38th share (which she calculates as being approximately $79,035 of the gross distributable estate, but which David calculates as being closer to $60,000).

Procedural matters

1. [4]

   On 11 March 2019, Jannette filed her summons seeking further provision from the estate pursuant to s 59 of the Succession Act. David points out that the summons was not filed within the time prescribed by s 58(2) of the Succession Act (being filed just over 12 months from the date of the deceased’s death), and hence an extension of time for the filing of the summons is necessary (as to which David did not wish to be heard). The delay was minor and I will give leave for the requisite extension of time having regard, in particular, to Jannette’s circumstances which I set out in more detail below.

2. [5]

   There is no dispute that Jannette, as a child of the deceased, is an eligible person as defined by s 57(1)(c) of the Succession Act. The only other potentially eligible persons are said to be David (who has not made a claim for provision) and Lynette Maroney, a granddaughter of the deceased (and daughter of his late son, Don) and beneficiary of the estate, who lived with the deceased from the time she was 4 until she was 26 (see T 68.1) (and who has also not made a claim for provision).

3. [6]

   Two of the beneficiaries (other than Jannette and David) have put their financial circumstances in issue; each of those being a granddaughter of the deceased: Leigh MacTaggart (another daughter of the deceased’s late son, Don) and Tracey Watton, (being Jannette’s estranged daughter). On the basis that their affidavits also put their respective children’s circumstances into account, there are thus eight beneficiaries whose financial circumstances have been put in issue and eleven so-called “silent” beneficiaries.

4. [7]

   By way of procedural background, it is relevant to note that, shortly before the hearing, on 8 May 2020, David filed a notice of motion to adjourn the hearing on the ground that he had been taken by surprise about matters in issue and had been confronted by unanticipated late evidence served by Jannette. That adjournment application was heard and dismissed by Hallen J on 12 May 2020. It was raised in the context of the subsequent hearing before me by way of objection to certain of the evidentiary material sought to be relied upon by Jannette (as I will explain in due course). (It was also raised in the context of a submission in support of the tender by David, immediately prior to oral closing submissions, of a Sales History Report which was ultimately admitted as part of Ex 14), namely the submission that an adjournment had been sought when David became on notice that valuation of the family home (the Tennyson Point Property – see below) was in issue – see T 225; but that submission was not borne out by the transcript of the application brought before Hallen J.)

5. [8]

   I have indicated above broadly the effect of the provisions under the deceased’s Will. Slightly more than half the deceased’s estate (a half share of the residue of his estate, his personal effects, and an additional 1/38th share of the residue) is left to David; approximately 16% of his estate is left to Jannette, her 2 children (one of whom is Tracey) and 3 grandchildren; approximately 13% of his estate is left to Don’s 2 children (Leigh and Lynette) and 3 grandchildren; and approximately 18% of his estate is left to Bruce’s 2 children and 5 grandchildren. Other than David, each of the immediate and extended family members receives a 1/38th share of the residue of the estate.

6. [9]

   The deceased’s estate (see the Agreed Schedule of Assets and Liabilities dated 8 May 2020) is comprised mainly of a property at Tennyson Point (the Tennyson Point Property) that is presently occupied by David (and in which he has lived for almost all of his life).

7. [10]

   Neither party adduced expert valuation evidence in relation to the Tennyson Point Property. (It was argued for David that the deceased, as an owner of the property, had specialised lay expertise in the value of the property and hence was able to express an opinion as to its value – see T 269.35ff). Rather, as permitted in matters of this kind, there were competing market appraisals of the Tennyson Point Property (David relying on a market appraisal of the property dated 15 May 2019, which valued the property at $2,050,000; Jannette relying on a market appraisal dated 24 April 2020, which valued the property at $2,700,000-$2,900,000). The midpoint of those appraisals puts the value of the property at $2,425,000; and this has been taken by the parties as the agreed value of the property (see T 235.16).

8. [11]

   Other than the Tennyson Point Property, the only assets of the estate comprised cash in two interest bearing accounts held with Nexus Mutual. (I note here that it appears from the cross-examination of David that at least one asset of the estate (the deceased’s car) was omitted from the schedule of assets of the estate (see T 147.43ff) (David says it was in need of repair and he gave it to a friend) but little if anything turns on this.)

9. [12]

   The now agreed gross value of the estate (the Tennyson Point Property plus a sum of $207,588) is $2,632,588.

10. [13]

    Net of Jannette’s legal costs (amounting to $75,000 on the ordinary basis) and David’s legal costs (amounting to $68,000 on the indemnity basis), as well as the estimated conveyancing costs of $67,000 on a sale of the Tennyson Point Property, the agreed net value of the estate is $2,422,588 (see the Agreed Schedule of Assets and Liabilities dated 20 May 2020).

11. [14]

    It is said by David that if Jannette had not brought this claim, she could have expected to receive provision in the amount of $67,515.47 from the estate whereas now, as a result of the costs incurred in these proceedings, the value of her share is calculated by David at $63,752. Such an observation might be made in most, if not all, applications of this kind. Equally, it might be observed that, on any view of the matter, it must have been inevitable that the Tennyson Point Property would have to be sold in order to meet the claims of the residuary beneficiaries other than David (unless some arrangement could have been reached for David to finance the acquisition of the almost half share of the estate that was left to others under the Will). (David’s affidavit evidence to the effect that he does not understand why he was not left a life estate is not to the point.) In those circumstances (and accepting that it was David’s duty as executor to uphold the Will), it is unfortunate that the family members could not have reached an acceptable outcome in mediation to avoid the continued incurring of legal costs of a contested hearing, as has now occurred, but again that is not uncommon in matters of this kind.

Background

1. [15]

   The deceased married his late wife, Dorothy, in 1944. Dorothy died in about 2002. The couple had 4 children: Don born in 1945, who died in March 2009; Bruce born in 1947, who died in November 2007; Jannette born in November 1951; and David born in December 1957. In about 1954, the deceased and Dorothy bought the Tennyson Point Property where the family then lived and where David remains living.

2. [16]

   Jannette lived at the family home until she married Robert Watton in 1972. Jannette and Robert separated in 1996 but they have not ever divorced. They have two adult children, a daughter (Tracey) born in 1973, who gave evidence in the proceedings; and a son (John) born in 1976, who was not involved in these proceedings. Jannette is estranged from both her children (as she seems to be from all her immediate family).

3. [17]

   Jannette and Robert owned a home at Eastwood. After their separation, the home was sold and Jannette says she received about $200,000 from the sale proceeds. In December 1998, Jannette bought a property at Glossodia from her parents (the Glossodia Property), about which there was much contention in these proceedings; not least because of the evidence that the deceased was very upset when Jannette later sold the property – see below. The contract for sale specified the contract price as $165,000. Stamp duty was paid, one would assume by reference to that amount (see the argument as to this below). Jannette’s evidence (about which she was cross-examined) was that her parents sold the Glossodia Property so that they could have the benefit of the aged pension. David’s argument is that this makes no sense unless the property was sold at less than market value (and hence that Jannette received a “gift” by reference to the acquisition of the property at an undervalue). Jannette says she borrowed about $85,000 to assist with the purchase of the Glossodia Property.

4. [18]

   In August 2003, some seven or eight months after Dorothy’s death, the Glossodia Property was sold for the sum of $640,000. Jannette bought a property at Wilberforce with Tracey, and Tracey’s then partner, for $695,000 (the Wilberforce Property) (increasing her mortgage debt from $125,000 to $250,000). Jannette says she contributed her funds from the sale of the Glossodia Property to the purchase of the Wilberforce Property. As noted, a sum of $250,000 was borrowed from the ANZ Bank to assist with the purchase. The Wilberforce Property was later sold in April 2006 for $735,000. After the discharge of the ANZ mortgage, the sale moneys were shared between Jannette and her co-owners (Tracey and Tracey’s now ex-partner). Jannette says she received about $400,000 or $430,000 out of the proceeds of sale. (Tracey maintains that Jannette received closer to $480,000.)

5. [19]

   After the sale of the Wilberforce Property, Jannette rented and lived on rural rental properties, initially at Camden and then at Badgery’s Creek, until about 2011. Since 2011, Jannette has lived with friends in their homes. She presently has accommodation (rent-free) on the property of Mr Peter Townsend (who gave evidence in the proceedings), moving there when Mr Townsend’s late wife, also a friend of Jannette’s, was alive. The nature of their relationship was the subject of some challenge in cross-examination – see below.

6. [20]

   Jannette has been employed in various capacities over the years but has been unemployed since around 2005. For some time until 1998 she operated a small hairdressing salon (as to the ownership of which she was cross-examined about in the proceedings). For a short time after the acquisition of the embroidery business to which I have referred above, she worked embroidering logos on sporting wear at horse shows. Between about 1998 and 2005 she was employed by Woolworths. Jannette’s evidence is that, since childhood, she has had a continuing interest in horses; and that much of her income has been spent (or, in her words, “wasted”) on her horses. Jannette has not been in employment since 2006 and she says she is unlikely to return to employment.

7. [21]

   Jannette has no dependants and has been separated from her husband, Robert, since 1996. Her evidence is that she is not in a de facto or domestic relationship and has not “re-partnered” since her separation. (As adverted to above, this was the subject of some contention in the proceedings.)

8. [22]

   Jannette estimates that her assets total about $27,000, comprising a 1995 Toyota Landcruiser, horse float, 8 horses and household effects. Jannette’s liabilities comprise a credit card debt to the St George Bank of $3,000, a credit card debt to the National Australia Bank, and a loan of $1,200 from moneys borrowed from Centrelink against her aged pension.

9. [23]

   Jannette’s only income is the aged pension, including energy and pension supplements, of $933.40 a fortnight. Jannette estimates her weekly expenses are $464. (David submits that the receipt by Jannette of an aged pension means that she is considered secure in her income (referring to Nielsen v Kongspark [2019] NSWSC 1821 (Nielsen v Kongspark) at [298]).

10. [24]

    Jannette’s evidence is that, from her marriage in the early 1970’s until the deceased’s death, she had little contact with the deceased (see her affidavit sworn 10 April 2019 at [27]). She has deposed that this was because the deceased acted inappropriately and suggestively towards her, starting when she was 9 (see her affidavit sworn 10 April 2019 at [13]-[16]). This was the subject of contention in the proceedings. Jannette also says that her children had little contact with the deceased (see her affidavit sworn 10 April 2019 at [28]). This was disputed by her estranged daughter, Tracey, and was also the subject of contention in the proceedings.

11. [25]

    Jannette has deposed to her present and future needs, including: accommodation (see in particular her affidavit sworn 15 April 2020); new furniture at a cost of $10,000 (her affidavit sworn 10 April 2019 at [60](iii)); and an overseas holiday at a cost of $15,000-$20,000 (her affidavit 10 April 2019 at [60](i)); health insurance; medical expenses; a four wheel-drive that has a towing capacity of at least 2 tonnes and is capable of towing a horse float, at a cost of between $15,000-$25,000 (see her affidavit sworn 15 April 2020 at [18]) and has deposed that vehicle and horse float registration fees amount to $1,772 (see her affidavit 10 April 2019 at [18], [14](d)).

12. [26]

    As to Jannette’s stated need for accommodation, Jannette has deposed that she would like to purchase a home in a retirement village. David points to the concession by Jannette in cross-examination that the reason she had selected the properties nominated in her affidavit sworn 15 April 2020 at [15] and [16], including one in Lake Conjola, is because they “were advertising on television and it was easy access to get their details” (T 45.33). It is said that there is no evidence that Jannette has visited either property or has any serious intention of purchasing one of the units. It is noted that she conceded in cross-examination that, if awarded further provision, she would also look at other locations, in places to which she conceded she had no particular connection (see at T 45.48ff). David submits that the reason that Jannette has not properly investigated accommodation options for herself is because she is presently secure in her accommodation and has no “unmet” need for accommodation.

13. [27]

    As to her claimed needs, David points to the reservations expressed by Jannette’s general practitioner as to the safety of her driving (said to be because of her misuse of prescription medicines – although I note that these comments were made in 2017 and may be no longer applicable) (see Ex 5 p 17) and it is noted that Jannette no longer rides horses (see T 40.5). It is noted that Jannette has conceded that she will need to sell her horses or put them down if she moves out of Mr Townsend’s house (see her affidavit sworn 15 April 2020 at [17]). On that basis, David submits that the need for a vehicle to tow a horse float appears to be based on her continuing to live with Mr Townsend.

14. [28]

    It is further noted by David that, in cross-examination, Jannette accepted that she did not need private health insurance at a cost of $206 a month (T 43.14). It is said that insofar as Jannette also nominated nominal out of pocket expenses for physio and two psychologist appointments a year (T 42), those needs would be covered by the provision already made for Jannette by the deceased.

15. [29]

    David is 62 years old. He has never been married and has no dependants. He is a low income earner, with a gross yearly income of around $57,972.20, including superannuation (Ex E; Ex 10). He is employed by the Inner West Council as a road sweeper.

16. [30]

    David lived with his parents all his life, excluding brief periods many years ago, and was, until the deceased’s death, dependent on the deceased for accommodation (see David’s second affidavit sworn 30 May 2019 at [25]). Excluding his interest under the Will, David has deposed that he has assets including $104,000 in bank savings, plus superannuation of around $80,000, as well as 5 cars (including 2 vintage cars) (see his second affidavit sworn 30 May 2019 at [22]). David continues to reside in the Tennyson Point Property, paying the outgoings, caring for the deceased’s Kelpie dog “Sally”, and attending to maintenance (in lieu, he says, of rent to the estate).

17. [31]

    David’s evidence is that, from 2012, in the 6 years prior to the deceased’s death, as the deceased’s health deteriorated he became (in addition to being a loving son) the deceased’s primary carer (see his second affidavit sworn 30 May 2019 at [32]).

18. [32]

    David says that he “ran down” his long service leave balance in connection with the deceased’s death and is also in need of a holiday (see his fourth affidavit at [39]). As to the long service leave issue, it is noted that the Long Service Leave Act 1955 (NSW) entitles workers in NSW to paid long service leave on completion of 10 years of service. As David commenced employment on 16 December 2009, it is said that he should have a long service leave balance of 9 weeks but that, instead, he has a balance of 3 weeks (or 104.10 hours at 35 hours a week). David says that he has made various contributions to the deceased’s estate expenses (see his second affidavit sworn 30 May 2019 at [33]). I deal with these in due course.

19. [33]

    On 10 February 2020, David suffered a heart attack (see his affidavit sworn 8 April 2020 at [2]). He is a diabetic and suffers from, inter alia, osteoarthritis in his left knee, for which his evidence is that he requires a knee reconstruction, with an estimated cost of $38,000 (see his second affidavit sworn 30 May 2019 at [37]). His general practitioner (Dr Damien Lindall) has expressed the opinion that, because of David’s various ailments, David will face premature retirement and may need increased disability support and physical therapy in future (see the annexure to David’s affidavit sworn 8 April 2020 at p 5).

20. [34]

    David’s evidence is that he is stressed about the prospect of having to leave the Tennyson Point Property (see his second affidavit sworn 30 May 2019 at [26]). (He says that, out of respect for his father’s wishes, he has not brought his own claim for further provision.) Although he has deposed in his affidavit evidence to not understanding why his father did not leave him a life estate, it appears from his Counsel’s submissions at the hearing that he accepts that it will be necessary for the Tennyson Point Property to be sold in order to meet the bequests under the Will (which rather begs the question as to why he raised the subject of a life estate in his affidavit in the first place). David says he needs funds sufficient to enable him to buy a property in Sydney suitable for his 5 cars and the deceased’s dog.

21. [35]

    Section 59 of the Succession Act empowers the making of a family provision order in relation to the estate of a deceased person if the Court is satisfied of the matters set out in s 59(1) of the Succession Act (see the principles articulated by Hallen J in Page v Hull-Moody [2020] NSWSC 411 (Page v Hull-Moody) from [120]).

22. [36]

    A determination of whether a claimant has been left without adequate provision for his or her proper maintenance and advancement in life involves an evaluative judgment. Relevantly, the question is whether the Court is satisfied that “adequate provision for the proper maintenance, education or advancement in life” has not been made for the claimant (here, Jannette). The time at which the adequacy of provision is to be tested is the time the Court is considering the application (s 59(1)(c) of the Succession Act).

23. [37]

    If, at the time the application is determined, it is found that the deceased did not make adequate provision for the plaintiff’s proper maintenance and advancement in life, the Court is required to determine whether and what provision it ought to make for the plaintiff.

24. [38]

    Pursuant to s 60(1) of the Succession Act, the Court may have regard to the matters set out in s 60(2) of the Succession Act for the purpose of determining whether to make a family provision order and the nature of any such order. Those matters may be relevant both to the question of any inadequacy of provision and, if the provision is found to be inadequate, to the question whether, and if so what, order for provision should be made.

25. [39]

    In Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, when considering the predecessor legislation to the Succession Act, the majority of the High Court said that the words “adequate” and “proper” are relative and require the formation of opinions upon the basis of its own general knowledge and experience of current social conditions and standards (at 211, per Mason CJ, Deane and McHugh JJ). More recently, in Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson), White JA (with whom each of McColl JA and Payne JA agreed) said (at [86]):

26. [40]

    There have been a number of cases in which the question of what is proper provision for an adult child has been considered. Suffice it to make clear that there are no special rules or principles applicable to claims of adult children (nor any presumption for or against there being a moral obligation to make provision for an adult child), as Hallen J recognised in Towson v Francis [2017] NSWSC 1034 (Towson v Francis) (see at [78]-[80], there citing Burke v Burke [2015] NSWCA 195; Nicholas v Tubb [2016] TASSC 53; Toscano v Toscano [2017] NSWSC 419; and Underwood v Gaudron [2014] NSWSC 1055). Each case must be considered by reference to its particular facts and circumstances (though see the summary of principles in Camernik v Reholc [2012] NSWSC 1537 per Hallen J (at [159]).

27. [41]

    I consider in due course the evidence in the present case as to estrangement. As to estrangement in the context of family provision cases, I refer to what was said by Basten JA (with whom Allsop P, as his Honour then was, agreed) in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 (at [40]; [49]). Hallen J also addressed that issue in Nielsen v Kongspark at [233]-[237], including in particular his Honour’s consideration of the relevant principles at [233].

28. [42]

    The explanation given by Jannette for the admitted estrangement between herself and the deceased was her account of sexual misconduct towards her by the deceased in her childhood. The relevance of historical sexual abuse allegations to applications for family provision orders was considered by Hallen J in Page v Page [2016] NSWSC 1218 (Page v Page). His Honour there said (at [58]) that such proceedings should not be the vehicle by which allegations of sexual abuse should be determined. Reference may also be made in this context to Re Estate McNamara [2018] NSWSC 1661 (Re Estate McNamara) at [36]-[43], per Lindsay J.

29. [43]

    At [59]-[60], his Honour repeated what he had earlier said in Williamson v Williamson [2011] NSWSC 228 (Williamson) (at [124]-[127]) to the effect that a claim under the Succession Act does not encompass reparation, or compensation to an applicant for the deceased (parent) having failed in his, or her, legal, or moral, duty to be a good and responsible parent of the child. Earlier in Curran v Harvey [2012] NSWSC 276 at [124], his Honour had emphasised it is not the function of the Court to provide a legacy, by way of damages, for such conduct as abuse by, or immoral conduct of, the deceased (albeit that such conduct may provide a necessary explanation for the conduct of a claimant towards the deceased and that it may give rise to additional needs on the part of the claimant, but noting that such conduct does not provide the yardstick by which provision for the claimant should be measured – citing Cameron v Cameron [2009] SASC 27; and Williamson at [125]). In Edward Jones (a pseudonym) v Constance Smith (a pseudonym) [2016] VSCA 178 (Jones v Smith), the Victorian Court of Appeal considered the effect of allegations of sexual abuse by the claimant on the assessment of any further provision to be made for the claimant. Ferguson JA, as her Honour then was, (with whom Whelan and Kaye JJA agreed) said that (at [40]):

30. [44]

    This approach has been endorsed by the NSW Court of Appeal in Page v Page (albeit in dicta). After quoting the above passage from Jones v Smith, Sackville AJA (at [120]) opined that:

Evidentiary Rulings

1. [45]

   Before turning to a consideration of the relevant factors to be taken into account when determining whether proper provision was made for Jannette under the Will and, if not, whether any further provision should now be made (and, if so, what provision), I address the following evidentiary rulings and make certain factual findings as to contentious issues that arose in the hearing.

2. [46]

   The report of Dr Chalissery (Jannette’s general practitioner) was provisionally allowed subject to objection (T 13.1). The objections by David to that report were ultimately confined to the following letters attached to the report and references to them in the body of the report (being the first three paragraphs on p 2 of the report): first, the letters dated 17 September 2018, 11 December 2017, and 20 September 2017 from Dr Bardulis, psychiatrist, to Dr Chalissery, which contain unparticularised references to “past childhood traumas” and “childhood experiences”; second, a letter dated 26 March 2018 from Cherie McCafferty, psychologist, to a general practitioner, Dr Vishnoi, which contains an unparticularised reference to “family relationship problems and sexual abuse”.

3. [47]

   For David, it is submitted that these letters, and the references to them in the body of the report, should not be admitted (or, if admitted, should be subject to a limitation under s 136 of the Evidence Act 1995 (NSW) (Evidence Act) that they not be used for a hearsay purpose).

4. [48]

   It is noted that the report of Dr Chalissery was first served on 15 April 2020, eight months after directions were made for its service (referring to what was said at the directions hearing before Hallen J on 12 May 2020 in that regard; see T 8.1-10; T 8.29, 12/5/20). (The unsuccessful May 2020 adjournment application was made on grounds which included David’s stated inability to deal with the report.) It is further noted by David that the report was first foreshadowed in Jannette’s first affidavit sworn 10 April 2019 (at [46]):

5. [49]

   David complains that Jannette has not offered any explanation as to why the report was served late, more than a year after it was first mentioned in her first affidavit. It is also noted that the report states that it was requested by letter dated 8 April 2020 but David says that that letter has not been produced by Jannette despite repeated requests (see T 13.49; it being then said that the letter would be emailed directly – see T 14.41). Complaint was made to the reference to “arthritis” (notwithstanding that earlier affidavits referred to knee problems) and to the description of Jannette’s anxiety as “severe” (notwithstanding that David himself relies on Jannette’s addiction to prescription drugs) (see T 11.32).

6. [50]

   David submits that the letters are inadmissible (as hospital records) under r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) because they were filed in breach of orders for the service of evidence made by Hallen J (referring again to the transcript of 12 May 2020 at T 8.1-10). Accordingly, it is said that, in accordance with r 31.28(4) of the UCPR, unless Jannette can show “exceptional circumstances” they are inadmissible; and it is said that exceptional circumstances have not here been shown. (Reference is made in that regard to Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service [2018] NSWSC 1621 where Harrison J considered that it would be an exceptional circumstance to grant the leave that had there been sought).

7. [51]

   David says that the late service of these letters causes real prejudice to him because he was not previously on notice of the existence of either Mr Bardulis or Ms McCafferty as treating professionals of Jannette. It is noted that, at the hearing of the adjournment application on 12 May 2020, Hallen J suggested that Jannette might ultimately be faced with a choice (either that the adjournment be granted or that Jannette not be allowed to read the evidence (see at T 8.45)) but his Honour expressly left the question of admissibility of the report to the trial. It is noted by David that his Honour said, in reference to Dr Chalissery’s report (at T 13.4), “you can assume I will not allow you to read her report if she is not available for cross-examination. That would be grossly unfair to the defendant”. It is said by David that that comment is equally apposite to the reports of Mr Bardulis and Ms McCafferty, neither of whom was made available for cross-examination.

8. [52]

   David says that the unparticularised references to “childhood traumas” in these reports are precisely the type of “inexact proofs, indefinite testimony, or indirect interferences” against reliance on which caution has been raised (see for example per Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw v Briginshaw) at 362). It is said that the material is prejudicial because Jannette seeks to use these unparticularised references to childhood trauma as references to the allegations made by her in these proceedings in order to bolster her credibility, when David has had no opportunity to explore in cross-examination whether this is in fact the case and whether there is any connection between these references and the allegations made in these proceedings.

9. [53]

   It is submitted that there was insufficient time before the trial (in the context of the COVID-19 “shutdowns”) to subpoena Mr Bardulis’ and Ms McCafferty’s records and to obtain proofs of evidence from them; nor was there time to obtain expert evidence directions for Jannette to be assessed and to obtain an expert report from a psychiatrist, which would explore the credibility or otherwise of Jannette’s allegations, including whether she might suffer from “false memory syndrome” in connection with her treatment by Ms McCafferty. Reference is made in that regard to the situation before the court in Gersbach v Gersbach [2018] NSWSC 1685, where there was reference in expert evidence to “false memory syndrome” (and see the observations of Garling J at [385]-[386]).

10. [54]

    I accept that the report of Dr Chalissery was served late (without any, or any adequate, explanation) but it is not the case that David did not have an opportunity to test Dr Chalissery as to the nature of the childhood traumas and experiences to which reference is there made, at least insofar as I was informed that arrangements had been made for Dr Chalissery to be available for cross-examination. It appears that on the first day of the trial a forensic decision was made (by David’s legal representatives) that he would not be required for cross-examination (T 34).

11. [55]

    That said, I accept that exceptional circumstances have not been established for the admission of the two sets of letters (which ultimately were the only parts of the report to which objection was taken). In those circumstances, as a matter of procedural fairness I will not admit into evidence the two sets of letters in respect of which complaint has been taken. That said, even had I admitted them, I would have limited their use simply to the fact that a history had at some earlier stage been given by Jannette as to family relationship problems and the like. The letters would not establish that such abuse had in fact occurred. Nor can much weight be placed on the fact that the letters refer to earlier reports of that kind when the nature of what is alleged to have happened is not made clear.

12. [56]

    The hospital reports (Ex B and Ex D) were also only provisionally admitted, subject to objection (T 17-18).

13. [57]

    Exhibit D is a Nepean Hospital Mental Health Assessment dated 17 March 2009, signed by an “RN” (presumably, a registered nurse) K Hutchinson. It is said to have been tendered by Jannette purely for the consistency of the history recorded therein (see T 242.11), relying upon the notation (see at CB 169) that:

14. [58]

    Ex B is a Hospital Progress Note dated 20 August 2009, by “Anwan” (who appears from the note to be a Registrar). Jannette similarly relies upon Ex B chiefly (see T 241.32) in respect of a notation (appearing at CB 162), again as to the consistency of allegations of abuse (see T 241.13). This notation reads:

15. [59]

    Those documents were first served on 13 May 2020, four days before the trial, with the Court Book. Being hospital reports, it is again noted by David that, in accordance with r 31.28 of the UCPR, they are inadmissible without leave of the Court because they were served later than 28 days before the hearing (see r 31.28(1)(c); r 31.28(3)(a) of the UCPR); and that leave is not to be given unless there are “exceptional circumstances” (r 31.28(4)(a) of the UCPR). It is again submitted that Jannette has not adduced any evidence of exceptional circumstances and that there are no exceptional circumstances which would justify such leave. Again, it is submitted that the Exhibits should not be admitted or, if they are admitted, they should be subject to a limitation under s 136 of the Evidence Act that they not be used for a hearsay purpose.

16. [60]

    For David, it is submitted that “[i]t is hard to overstate the prejudice to the defendant of admitting them for any purpose”. I do not accept this. True it is that, because of the lateness of time at which the reports were served, there was as a practical matter little or no time (David says the latter) for David’s legal representatives to obtain proofs from the authors of the reports, or to obtain an expert report from a psychiatrist, exploring the credibility or otherwise of the history set out in these hospital reports; nor were the authors of the reports made available for cross-examination. However, in circumstances where it was accepted that their use be limited, in effect, to dispelling any allegation of recent invention, it surely cannot have been necessary (nor would it have been consistent with the just, quick and cheap resolution of the real issues in dispute) for there to be an excursus into the veracity of the allegations of sexual abuse, nor for cross-examination of the makers of the reports as to the taking of the patent’s history (and it seems highly unlikely that the latter would have advanced matters greatly, if at all). It is also relevant to note that the hospital records were produced in answer to a subpoena issued on David’s behalf (see T 16).

17. [61]

    David points out that the history given in Ex B is inaccurate in that it includes the statements “younger brother died due to bowel cancer” and “elder brother lives with father”, whereas Jannette’s younger brother is David (who did not die of bowel cancer; rather, it was her two older brothers who were dead when Ex B was created) (see Jannette’s affidavit sworn 10 April 2019 at [7]); and Jannette’s elder brother was not living with her father; rather it was her younger brother (David) who was living with their father (see David’s second affidavit sworn 30 May 2019 at [30]).

18. [62]

    David argues that the conclusions set out in Ex B and Ex D (noting that these contain no particulars to support them) could not be adduced as prior consistent statements in these proceedings in circumstances where Jannette has never alleged that her two older brothers sexually abused her; and the allegations that have been made against the deceased contain “no particulars of any sexual intercourse, digital or other penetration, erection or climax”. (If the latter suggests there can be no sexual abuse without sexual intercourse, penetration, erection or climax, it seems to me to be unarguably wrong, as numerous cases in the Court of Criminal Appeal would attest, but it is not necessary here to explore that issue.)

19. [63]

    It is said that, taken together, Ex B and Ex D suggest that Jannette was sexually abused by an older brother who lived with her father, “placing the stain of suggestion on the defendant, notwithstanding the fact that he is her younger brother and the history is clearly inaccurate”; and that, on this ground alone, Ex D and Ex B should be excluded under s 135 of the Evidence Act, on the basis that their probative value is substantially outweighed by the danger that the evidence may be unfairly prejudicial to David, or misleading and confusing. (Pausing here, I emphasise that there was no such allegation made against David in the proceedings; and there was no sensible risk in my opinion that the tribunal of fact – here a judge not a jury – would be misled or confused into believing that such an allegation had been made simply by reference to the notes in the hospital reports here in evidence.)

20. [64]

    Further, it is said that David has adduced unchallenged evidence that, at around the time Ex D was created, Jannette attended her brother Don’s funeral “where she was so high on drugs she was rambling and calling her own son ‘Don’, being the name of the brother whose funeral she was attending” (referring to Tracey’s affidavit sworn 11 May 2020 at [41]), which it is said raises a further “question mark” about Jannette’s capacity as a historian at a proximate time. (I interpose to note that there is at the very least a “question mark” over other portions of Tracey’s evidence itself, given that she deposes to her non-observation of events at a time before she was born – see below; but in any event, the relevant notations in the hospital records are not here relied upon by Jannette for the truth of the allegations but for the fact that she has previously made allegations of that kind.)

21. [65]

    Again, I accept that these reports were served late and without any, or any adequate, explanation. And I accept that the reliability of the history there recorded in the notes has been shown to be unreliable at least in relation to the matters to which David points in Ex B.

22. [66]

    However, I do not accept that the Exhibits should be excluded under s 135 of the Evidence Act. Their probative value lies in the fact that there is evidence the fact that Jannette has previously made allegations of sexual abuse within the family and, particularly, against the deceased. Albeit that the particulars of the alleged abuse are not there set out, the documents go to dispel any suggestion of recent invention of such an allegation. If limited to the fact that Jannette made such a complaint at some stage in the past, I do not see that there is a danger that the evidence may be unfairly prejudicial to David (against whom no allegation of sexual misconduct has here been made) or that it is misleading or confusing.

23. [67]

    I accept that the weight that can be placed on such notes may be limited, in that it is possible that the maker(s) of the notes might have erroneously recorded information in them; and that the reliability of Jannette’s memory is already in issue (by other evidence such as her recollection of matters such as the time when her mother died – although that is recorded correctly in the notes where it is said that “mother died 06 years ago with liver failure” – and as to the purchase details for the Glossodia Property).

24. [68]

    However, particularly in circumstances where Jannette raises the sexual abuse allegations to explain her estrangement from her father, and David (including through Tracey who was not even alive when the alleged sexual misconduct commenced, yet felt able to depose to not having observed any such conduct) has challenged Jannette’s evidence of such misconduct, I consider that the probative value of evidence as to some kind of complaint having been made in the past (to dispel any suggestion of recent invention) does substantially outweigh the danger that the evidence may be unfairly prejudicial to David or misleading and confusing (particularly if a limitation is placed on the use of that evidence – as has been suggested in the alternative submission made for David).

25. [69]

    Insofar as exceptional circumstances are required for leave to rely upon a hospital report served late, I am satisfied that the exceptional circumstances here lie in the evidence served (also very late) to rebut the allegations of sexual misconduct; namely that of Tracey.

26. [70]

    Therefore, I admit Ex B and Ex D, subject to the ruling pursuant to s 136 of the Evidence Act, that the evidence is admitted only as evidence of previous complaint of child sexual abuse having been made; not as to the truth of the allegation nor as to the content of the alleged abuse.

27. [71]

    Admitted into evidence (without any order under s 136 of the Evidence Act limiting its use – see T 220.50) was a copy of an incomplete handwritten letter dated 16 July 2003 (Ex 13) (the 2003 Letter). It is said by David that, since this was admitted into evidence without any limitation, the statements made in the 2003 Letter can be relied upon as proof of the facts there recorded (in order to establish the truth of what was said and the history recorded). (Pausing here, I accept that the 2003 Letter is evidence of the deceased’s assertions, and as to his stated belief(s), at the relevant time. It can rise no higher than that.)

28. [72]

    The 2003 Letter was identified as containing the deceased’s handwriting by both Tracey and David (see T 196.2; T 140.41). Jannette said in cross-examination that she did not recognise the handwriting (T 61.29), and denied ever receiving the letter (T 61.42). David denied having seen the letter before (T 140.47).

29. [73]

    Tracey’s evidence is that she recalled seeing the letter when Jannette received it (see at T 196.11). David says that Tracey’s evidence that she saw Jannette receive the 2003 Letter was not challenged and should be accepted (given Jannette’s lack of recall with respect to proximate events such as her mother’s death) but, in any event, it is submitted that the force of the words in the 2003 Letter stands regardless of whether or not Jannette received it.

30. [74]

    Tracey’s evidence is that she did not know that she had the 2003 Letter in her possession and that she found it in her filing cabinet when she was looking for letters from her grandfather to her (see at T 204.33). Her evidence was that she was not sure how the letter came to be in her possession and that “it may have been put in my filing cabinet when we all lived together at Ebenezer” (by which I understand her to be referring to the Wilberforce Property) (see at T 196.15). Her evidence is that she did not know what had happened to page 1 of the letter (T 203.49).

31. [75]

    For David, it is submitted that the absence of the first page of the 2003 Letter does not detract from an understanding of the remaining portions of the letter, which it is said contain complete sentences on discrete topics. It is said that the most that might be done with respect to the missing page is to draw a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel) inference that it would not assist David, although in David’s submission this would be unfair as Tracey’s evidence establishes that David had no knowledge of the content or whereabouts of the first page of the 2003 Letter.

32. [76]

    It is submitted for David that the 2003 Letter is a contemporaneous document which provides the best evidence of the deceased’s reasons for not making further provision for Jannette in the Will; and it is said that the deceased’s statements about Jannette in the letter must be considered even if they are not given determinative weight (citing Nielsen v Kongspark at [336], per Hallen J).

33. [77]

    As to the 2003 Letter, I do not consider that any adverse Jones v Dunkel inference should here be drawn against David, in circumstances where it is not established that David had any knowledge of this letter. However, I do consider that the fact that the letter is incomplete affects the weight that can be placed on the letter. It is impossible to know what was said in the missing first page or how that might shed light on the statements made in the balance of the letter (or on the issues more generally in the proceedings).

34. [78]

    I certainly accept that it is likely that the letter was addressed to Jannette (since the contents of the letter relate principally if not wholly to her), but it is impossible to know whether it was addressed only to her; and there is only Tracey’s evidence (about which I exercise some caution for the reasons set out below) to support the proposition that this was a letter that was ever actually sent to Jannette (let alone that it was received by her). For all I know it was a letter written by the deceased but not sent and simply left (complete or incomplete) with his papers which somehow found their way to Tracey’s possession; or a letter written by the deceased and given to Tracey for some reason.

35. [79]

    A vexed issue in the proceedings related to the market value of the Glossodia Property. There is no doubt that in 1998 the deceased and his wife transferred the Glossodia Property (a farm) to Jannette for the contract price of $165,000 (Ex 4) (though Jannette initially deposed, incorrectly, that she bought it for $195,000 – see her affidavit sworn 10 April 2019 at [32]). The Glossodia Property was located at Boundary Road, Glossodia, near Windsor (see T 202.46) and was a property of 6¼ acres (see T 65.22; and Jannette’s affidavit sworn 10 April 2019 at [30]).

36. [80]

    David notes that in oral submissions it was contended for Jannette (on the basis of a highlighted schedule of stamp duty charges tendered with the transfer at Ex Q), that the market value of the farm at the time was $180,000 (as the stamp duty paid “matches up” with a value of $180,000 highlighted in the schedule) (T 265). For David, emphasis is placed on the fact that the schedule bears a copyright date of 1992 and a disclaimer to the effect that it is provided as a guide only and that no responsibility is accepted for any inaccuracy or duty charges from March 1994. David says that Jannette has adduced no evidence, other than from the bar table, as to the provenance of this schedule, and hence says that there could be no confidence that there is any relationship between the schedule and the transfer. It is noted that there is no other evidence of stamp duty rates in 1998 before the Court. David further submits that all that Ex Q does is establish that, even on Jannette’s case, the Glossodia Property was transferred to her at $15,000 its market value of $180,000 below (on this hypothesis).

37. [81]

    Jannette’s evidence is that she borrowed $85,000 for the property, relocating a house onto it (which Tracey accepted she had done – there being only a garage on it when Jannette acquired – see T 207–208), and making other improvements (see Jannette’s affidavit sworn 10 April 2019 at [32]). David’s evidence is that the deceased also contributed his labour to these improvements made to the property (see his first affidavit sworn 30 May 2019 at [10](d)).

38. [82]

    In 2003, Jannette sold the Glossodia Property for $640,000. As noted above, David says that this is an extraordinary capital gain (of $390,000, or 164%, in five years). David says that at present, some seventeen years later, the property has an estimated value of $1,050,000 to $1,100,000, according to a kerbside appraisal by a real estate agent, Mr Adam Buchert of Starr Partners Windsor (part of Ex 14), which it is said equates to a capital gain of only $460,000 (or roughly 71%) in the following seventeen years. (The relevance of the current value is said to be to show that, had Jannette retained the property, she would had the benefit of that capital gain.) Further, for David it was argued, in effect, that Jannette’s evidence that she had to sell the Glossodia Property as she was in financial difficulties is inconsistent with her obtaining a larger mortgage when she bought the Wilberforce Property with Tracey and her partner.

39. [83]

    David refers to Tracey’s evidence that in 1998 Tracey was looking for properties to purchase with her then partner (see T 206.4), using money she had received from a car accident (T 206.18), and that she also looked at properties for her mother to purchase other than the Glossodia Property (T 208.25).

40. [84]

    Tracey gave evidence that in 1998 the market value of 6.5 acre properties in Glossodia was around the $330,000 to $350,000 price range (and that if it had a house it was worth more) (see T 202.16ff). Insofar as it was suggested to Tracey in cross-examination that she had adopted the value of $325,000 from the 2003 Letter, David says that Tracey never adopted the figure of $325,000; rather, that her evidence was that the value of a 6.5 acre property in Glossodia was in the $330,000 to $350,000 range. (Nevertheless, it may well be that the figure in the 2003 Letter in some way has influenced Tracey’s recollection of values in the area at the time – since there is nothing otherwise to suggest the basis for her ability to recall this range of values. I draw nothing from this either way.)

41. [85]

    It is submitted for David that Tracey gave this evidence based on her “specialised knowledge” of property prices in the Glossodia area in 1998, based on her experience looking for properties with both her mother and her partner. (Tracey’s evidence seemed to be that she was looking for properties with her mother and then partner in 2003 not in 1998, but that she was also looking at properties earlier in 1998 after she had received money following a car accident – see at T 202-206). It is submitted that Tracey’s opinion was wholly or substantially based on specialised knowledge (“namely her experience as an active participant in the relevant market”), and that therefore she was qualified to give opinion evidence for the purposes of s 79 of the Evidence Act (and able to give expert opinion evidence as an exception to s 76 of the Evidence Act); and that the provisions of the UCPR with respect to expert evidence did not apply to her evidence, as the evidence was adduced in cross-examination.

42. [86]

    David submits that Tracey’s evidence of the range of $330,000 to $350,000 (which as noted she said was for land value only) was “remarkably consistent” with the Sales History Report, prepared by Nicole Gerber on 20 May 2020 (noting that on pp 5-6 there is a list of properties sold between 1 July 1998 and 30 June 1999 in Glossodia, with a land size of 2-5 hectares, being between 4.9 and 12.35 acres) (also part of Ex 14). It is noted that the price range was $290,000 to $375,000, with the only property of 7 acres sitting well outside the range being the Glossodia Property (for $165,000).

43. [87]

    It is submitted that the 2003 Letter is also contains a contemporaneous record of what the deceased said the market value of the property was in 1998, namely (at pages 2 and 4):

44. [88]

    It is submitted that this is either the deceased’s opinion of the market value, based on his “specialised knowledge” as the owner of the property, or evidence from which an inference can be drawn that a valuation of $325,000 had been provided to him. It is said that, in addition to the 2003 Letter, an inference can be drawn that a valuation had been provided to the deceased from Jannette’s evidence (at T 54.5) that the price of $165,000 which she paid for the property “was the price, that my father said, that the pension people would allow them to sell it and get their pension”, and her acceptance that “they told me they were told” that it was below the market value of the property (see at T 54ff).

45. [89]

    David points out that Jannette’s evidence was that her parents sold her the Glossodia Property so that they could get the pension (see her affidavit sworn 10 April 2019 at [33]); and that Jannette agreed in cross-examination, having been shown a table of historical age and invalid pension asset tests from 1997 to the present date, that in order to get the pension her parents needed assets of less than the relevant limit (which was $178,500) (see at T 53.3). David says that Jannette’s evidence that their parents had to sell the farm to get the pension only makes sense if its true value was above the pension asset test; otherwise, it is said, selling the property to Jannette and simply converting real property into cash would not have made any difference to her parents’ pension entitlement.

46. [90]

    David submits that, from “the collective weight” of all the evidence adduced by the defendant (including: the extraordinary capital gain made by the plaintiff, as compared to the performance of the property in the following 17 years, Tracey’s evidence of the value, and the value the deceased put on the farm in the 2003 Letter), as well as by reference to Jannette’s evidence that her parents sold the farm to her to get the pension, the inference can comfortably be drawn that when Jannette’s parents transferred the Glossodia Property to her for $165,000, its true value if sold on an open market would have been closer to $325,000, thus representing a significant gift or provision made for Jannette by the deceased during his life.

47. [91]

    Reference is made to Frederick & Frederick [2019] FamCAFC 87 where the Full Court of the Family Court (Strickland, Aldridge and Austin JJ) said (at [39]):

48. [92]

    Their Honours noted that the evidence was accorded no weight by the primary judge not because it was not expert evidence as permitted by s 79 of the Evidence Act but because it was regarded by the primary judge as conjecture, and said at [41]:

49. [93]

    However, the argument put in the present case was, in effect, that this was expert evidence as permitted by s 79 of the Evidence Act, a very different proposition from that which their Honours were there stating.

50. [94]

    David also says that there would be an inconsistency in finding that a testator could not give evidence of the market value of his property, given the fact that the testator’s very capacity to make a will rests on the classic test set out in Banks v Goodfellow (1870) LR 5 QB 549, including that the testator understand the extent of the property of which he disposes. It is said that while this “does not necessarily mean” knowledge of each particular asset or knowledge of the value of that asset (see Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [64]); in probate proceedings there is often evidence that the deceased knew, or did not know, the value of his or her real property assets. Pausing here, the proposition that a testator’s understanding of the value of his assets (relevant in probate proceedings particularly where testamentary capacity is in issue) can translate to a finding that such evidence amounts to a specialised opinion as to market value for the purposes of the Evidence Act does not follow and is difficult to accept.

51. [95]

    On this issue, it is relevant to note that, in order to fall within the exception under s 79(1) of the Evidence Act, evidence must satisfy two conditions: first, the witness must have specialised knowledge based on his or her training, study or experience (Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 (Dasreef) at [32]; Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 (Honeysett) at [23]); and, second, the opinion must be wholly or substantially based on that knowledge (Dasreef at [32]; Honeysett at [24]).

52. [96]

    In Honeysett (at [23]), it was suggested that reliance on acquisition of knowledge through a person’s subjective life experience would not satisfy the first of these conditions. It was said that specialised knowledge is to be distinguished from matters of common knowledge; that the person’s training, study or experience must result in the acquisition of knowledge; and that the concept of “knowledge” connotes more than “subjective belief or unsupported speculation” but that it “applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds”.

53. [97]

    In Tuite v The Queen (2015) 49 VR 196; [2015] VSCA 148 at [73] the Court said that “[i]n assessing the admissibility of the evidence, the judge must, of necessity, ascertain and define with some precision the scope, and the limits, of the witness’s ‘specialised knowledge’”.

54. [98]

    In Dasreef, the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said that “the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study, or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded” (at [37], quoting Heydon JA, sitting as his Honour then was in the Court of Appeal, in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (Makita) at [85]). Their Honours later observed that “[a] failure to demonstrate that an opinion expressed by a witness is based on the witness’s specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight” (at [42]).

55. [99]

    In the present case, what appeared to be suggested in the course of oral argument by David’s Counsel was that mere ownership of a property in a particular location (in the case of the deceased) or searching to buy a property in a particular location at a particular time (in the case of Tracey) would amount to specialised knowledge sufficient to fall within the exception to the opinion rule in s 79 of the Evidence Act (having regard to the observation by the Full Court of the Family Court referred to above that the ordinary common experience of people is that where they own only a few significant assets such as cars and houses, they are well aware of the purchase price and have some knowledge, obtained from a variety of sources, about their value). I do not accept that one can draw a conclusion that a homeowner has specialised knowledge about property values solely from the fact of home ownership (and I do not read the Full Court of the Family Court as suggesting such a proposition – indeed, if it did that would fly in the face of what was said in Honeysett and Dasreef, which decisions are clearly binding on me).

56. [100]

    I do not cavil with the proposition that some weight might relevantly be placed in appropriate cases on an opinion held by a testator as to the value of his or her assets (or, as in the present case, as to the value of assets disposed of by the testator during his or her lifetime); but to suggest that this is specialised knowledge so as to support the admission of such evidence as lay opinion under s 79 of the Evidence Act seems to me to be extraordinary and I cannot accept that proposition.

57. [101]

    For the same reason, I cannot accept the suggestion that Tracey (whose evidence was in any event far from objective or impartial) had specialised knowledge of property values in the Glossodia area simply because she and her ex-partner had looked at acquiring property there some time ago.

58. [102]

    Similarly, to the extent that reliance was sought to be placed on the Sales History report, the difficulty is that it is impossible on the face of that document to ascertain the attributes of the respective properties there sold so as to be able to form a view as to where, within the range of properties there listed, the Glossodia Property might fall. It cannot possibly be suggested that this evidence satisfies the test set out in Makita at [85], namely:

59. [103]

    When pressed on this in the course of oral submissions, Counsel for David was unable to suggest a basis on which that could be contended.

60. [104]

    Therefore, I am left with doubt as to what was the market value at the time of the transfer of the Glossodia Property and I do not consider it appropriate or instructive to speculate as to this. Whether or not a sale price was fixed that was less than market value at the time cannot here be determined. All that is clear is that a sale price was specified and stamp duty was paid (one would infer in an amount referable to the specified sale price). How the sale of that property at that price would have assisted the deceased and his wife to obtain the pension is unclear (that being the reason that Jannette says the property was sold to her), other than that it involved the divestiture of real property that does not appear to have been the family home (and therefore presumably would not fall within any exemption, for the purposes of calculation of assets for pension purposes, of the family home). How the cash proceeds of sale would have been taken into account in the assets calculation at the relevant time is not clear (despite the reference by David to the 1997 assets test) and again it is not appropriate for me here to speculate on this.

61. [105]

    What seems to me more relevant is that the deceased appears to have held the view (and recorded this in the 2003 Letter) that the property had been sold to Jannette for less than its market value at the time; and such a belief would no doubt have been a relevant factor for the deceased to take into account when determining how his testamentary bounty should be exercised (whether or not in fact that belief was correct). Further, I would accept that the sale of the Glossodia Property to Jannette, to the extent that it was at less than its then market value, would have amounted to provision of a kind in her favour during her parents’ lifetime. Though I do not accept that such provision would necessarily be valued by reference to the capital gain made on the sale of the property at a later time (after the expenditure of moneys in improvements on the property), I am prepared to accept that Jannette did benefit (both financially and by way of the support it later enabled her to give to her daughter Tracey when they acquired the Wilberforce Property together) from that transaction, and that this should be weighed in the balancing exercise here to be carried out.

62. [106]

    Next it is convenient to set out my observations at to the credibility of the witnesses.

63. [107]

    For David, it is submitted that he is not a sophisticated person but that he gave truthful answers to the best of his ability. Insofar as he was challenged over the extent of his disclosure of documents, it is said that there is no evidence that he was ever issued with a valid notice to produce, and it is said that the documents which he did produce substantiate the fact that he is a low income earner with limited assets (see Ex 11). Emphasis is placed in this regard on the assessment by his employer that “[i]ntegrity is his strong suit” (see Ex 2 – documents subpoenaed by Jannette from David’s employer, the InnerWest Council).

64. [108]

    As to the first of those matters, leaving aside the question of the validity of the notice to produce (about which it appears some issue was taken in correspondence before the hearing), it seems clear that there has been inadequacy of disclosure on both sides. In David’s case it transpired, for example, that he had not disclosed an asset of the estate (an old car that he said he had given away), and he clearly considered his financial position was no-one’s business (see T 164.45); in Jannette’s case, the production of bank account statements was late and not necessarily complete. I do not suggest that anything turns on this. I simply note that the overall standard of disclosure was not high and there was fault on both sides.

65. [109]

    As to the latter, I have no reason to doubt the assessment by the Inner West Council of David’s integrity. However, its relevance on the present application seems moot. To the extent that this is relied on as some kind of character reference it does not assist me greatly.

66. [110]

    The other challenge to David’s evidence was insofar as it was suggested to him that his father’s friend, Ronny, did his father’s washing and cleaning in the last years of his life (i.e., as to David’s evidence of his role as primary carer) (see T 170.25ff), which David denied. It is noted for David that Ronny was in his 80’s at the time (T 191.27), with his own “limitations” (T 191.33). I do not consider that this advances the matter either way. I have no reason to doubt (and I here accept) that David was the primary carer for his father over the last four years of his father’s life.

67. [111]

    In summary, I found David to be a matter of fact witness albeit not particularly forthcoming. I accept that he endeavoured to give truthful answers to the best of his ability.

68. [112]

    David submits that Tracey (who was born when Jannette was 23 years of age) was a forthright witness who made appropriate concessions and whose “evidence should be believed in all respects”.

69. [113]

    Tracey was challenged regarding evidence she gave (in her affidavit sworn 11 May 2020 at [19]) about never having seen any conduct resembling the sexual misconduct allegations concerning the deceased, on the basis that the allegations related to conduct that took place before she was born, so she could not possibly have witnessed them.

70. [114]

    In apparent defence of Tracey’s evidence in that regard, David says that it was reasonable for Tracey to anticipate that, given her detailed evidence of the frequent contact between Jannette and the deceased during her childhood, Jannette might allege that the deceased’s conduct encompassed by the allegations continued into adulthood (“especially since no dates or particulars are given by the plaintiff of when the conduct stopped”). Reference is made to Jannette’s affidavit sworn 10 April 2019 at [14] where she deposes that her father “did this time and again”. It is said that nowhere is it specified that the conduct stopped; that this is simply “implied” by Jannette’s evidence that she rarely saw the deceased after her marriage. It is said that Jannette has made a submission which seems to stretch the timeline of the allegations “even into her adulthood” (see at T 242.31). (Reference is also made to Jannette’s evidence that she rarely saw the deceased after her marriage and that her children had little contact with him – see at [21] and [28] of Jannette’s affidavit sworn 10 April 2019.)

71. [115]

    David’s seeming attempt to restore Tracey’s credit in this regard seems to me, with respect, to miss the point. True it is that the indefinite timeframe put on the alleged sexual misconduct allegations makes it conceivable that Tracey was alive when at least some of the alleged conduct is said to have occurred (such as, perhaps, the later “laundry incident”). However, Tracey’s affidavit evidence in terms responds directly to paragraphs of Jannette’s affidavit which clearly refer to conduct when Jannette was a child. It is blindingly obvious that Tracey could not have witnessed anything at all about events occurring (or, on her evidence, not occurring) before she was even alive (as Tracey herself accepted). Her attempt in the witness box to explain why she had included this part of her affidavit evidence was unconvincing and unhelpful (her evidence was simply that she was “responding” to Jannette’s affidavit and it was because she had not observed it – in circumstances where she accepted it was obvious that she could not have observed events before she was born – see T 211-212).

72. [116]

    It is obvious that Tracey has a low opinion of her mother (from whom she has been estranged for some time). She accepted that she wanted nothing to do with her (T 215) (and that that had been her position when she had been contacted by a social worker in 2009 to say that her mother had overdosed – Tracey saying “I just did not want the drama back in my life” (see T 216). Tracey’s opinion of her mother may very well be a deserved low opinion. However, the extraordinary evidence by Tracey of her non-observance of anything resembling sexual misconduct when she was not even alive at the time of that alleged misconduct makes me cautious about accepting Tracey’s evidence at face value. It is clear that she has antipathy to her mother (so, for example, she says she provided the 2003 Letter to the solicitors for David to show the relationship between her mother and her grandfather (T 204) even though she accepted that she had had no relationship with her mother for some 14 years and thus could not have observed the relationship between Jannette and the deceased in that period, other than at her uncle Don’s funeral (see T 205). I simply cannot accept Tracey’s account as an objective account of events.

73. [117]

    This is of some relevance in relation to the vexed issue of the provenance of the (incomplete) 2003 Letter (see above); and it makes me somewhat wary of accepting at face value Tracey’s protestation of a close relationship with the deceased (particularly given that David seemingly did not even know how to contact Tracey until very recently), although there was evidence that the deceased had sent letters to Tracey and that she wrote to him after he died (at a time when she did not know he had died). Further, I accept that the fact that the deceased named Tracey as his co-executor does provide corroboration for there being a sufficient relationship of trust on the deceased’s part at the time the deceased made his Will for him to do so.

74. [118]

    Jannette was also at problematic witness.

75. [119]

    David points to the many inconsistencies between the evidence which Jannette gave in cross-examination and the evidence contained in the affidavits which she filed in the proceedings. It is submitted that Jannette’s primary affidavit “bespeaks an imprecision about events that occurred, a pattern of carelessness and inaccuracy” and a tendency to “play down” any assistance that the deceased provided to Jannette in his life, as well as the level of contact that she had with him after her marriage and up until 2003 (which is when David marks the commencement of their estrangement).

76. [120]

    In particular, reference is made to Jannette’s evidence as to: the hairdressing salon (see at [19], [23], [31] of Jannette’s affidavit sworn 10 April 2019 which suggests she owned it, whereas in cross-examination Jannette’s evidence was that her mother was the owner of the salon (T 69.27-38; T 88.30ff; T 94.16-45); as to the time of her parents’ purchase of the Glossodia Property (see Jannette’s affidavit sworn 10 April 2019 at [30]; cf T 46); and as to the amount of time her parents spent there (see her affidavit sworn 10 April 2019 at [30]; cf T 46–47).

77. [121]

    It is also noted by David that Jannette did not recall even the approximate date that Jannette’s mother died (nominating it as 1977 in her affidavit sworn 10 April 2019 at [9], and being unable to nominate anything closer in oral evidence when in fact her mother had died in 2002 – see at T 58.10-24), although I interpose to note that in the hospital progress note referred to earlier the date is more accurately recorded.

78. [122]

    David submits that, taken together, the inconsistencies in Jannette’s evidence should give reason to pause before accepting her evidence. It is submitted that, in general, to the extent that Jannette’s evidence is inconsistent with the evidence of another witness or contemporaneous documents, it should not be accepted.

79. [123]

    I accept that Jannette was an unreliable historian and I accept that she displayed a tendency to put her own “gloss” on the history of events. Towards the end of her cross-examination she seemed to me to retreat into non-responsive answers and displayed an inability to recollect events. However, in broad terms, I found her evidence not implausible, particularly insofar as aspects of it were corroborated (such as the making, at an earlier time, of the allegations of abuse of the kind to which she here deposes – not, I hasten to add, the truth of those allegations, which I cannot possibly here determine and nor would it be appropriate to do so). Moreover, the fact that it was from the time of her mother’s death that she ceased attending family Christmas functions is consistent with her having maintained contact before then due to her relationship with her mother (whose death she said in the witness box she was still grieving).

80. [124]

    To the extent that David points to evidence of Jannette’s addiction to painkillers (though he objected to a description of her anxiety as “severe”) and to her behaviour at events such as at Don’s funeral), I accept that this reinforces the unreliability of Jannette as an historian (though it also reinforces her current and likely future needs). However, I consider Jannette’s overall performance in the witness box to be as a genuine (albeit not particularly accurate) witness, particularly as to her perception of the reason for her estrangement from the deceased and her upset at the estrangement from her children. Indeed Jannette accepted propositions put to her that might have seemed unfavourable to her case, such as that her statements to her father as to her mother after her death would have caused him hurt (although I accept that her answers were not always consistent in this regard). Jannette accepted that her father was grieving the death of his wife and she seemed genuine in her expression of continuing grief on her own part as to her mother’s death (T 62). Overall, Jannette presented to me as someone resigned (albeit not happy) to being estranged from her children, and resigned to being criticised for her behaviour towards her father.

81. [125]

    It seems to me to be clear that Jannette is in a vulnerable financial situation (with little in the way of assets) and that she will face a difficult situation as she ages without being likely to be able to rely upon any support from her estranged children (or her long separated husband) and being dependent on the generosity of her friends (including Mr Townsend) for accommodation.

82. [126]

    Turning to the matters which may be taken into account pursuant to s 60(2) of the Succession Act, I note the following by reference to the evidence in the present case.

83. [127]

    Jannette’s evidence (as adverted to above) is that the deceased subjected her to sexual abuse which commenced when she was about 9 years old, and that this continued for many years. Her evidence is that, as a consequence of the abuse, she avoided contact with the deceased, did not have a close relationship with him, and rarely saw him after her marriage. Jannette’s evidence is that, on at least one occasion after her marriage, the deceased attempted to continue his abuse towards her. Jannette says that the deceased did not attempt to have a normal father-daughter relationship with her.

84. [128]

    Jannette’s evidence is that the deceased’s abuse of her has contributed to ongoing depressive illness and anxiety over a period of many years. It is noted that in 2009, Jannette had two admissions to the mental health unit at Nepean Hospital. Jannette says that she continues to receive ongoing treatment for mental health issues including depression and anxiety.

85. [129]

    David, however, points to Jannette’s evidence that when she was a child she “had a reasonable relationship with [her] father”, that she often went with her father and fed and groomed horses, and that her father helped her with fencing her horses (see Jannette’s affidavit sworn 10 April 2019 at [11]-[12]; and her affidavit sworn 3 July 2019 at [7](a)). David says that there is considerable evidence of normal family relationships and contact between the deceased and Jannette during the 1970’s, 1980’s and 1990’s, while Jannette’s children were growing up and before her mother died in December 2002. Reliance is also placed on Tracey’s evidence in this regard.

86. [130]

    Tracey, from whom (as adverted to above) an affidavit was obtained only shortly before the hearing (her location apparently only having been discovered by David at a late stage in the proceedings), gave evidence of a very close relationship she had with the deceased, which she says was fostered by Jannette when Tracey was a child (see Tracey’s affidavit sworn 11 May 2020 at [9], [17]-[18]). She deposed that Jannette took her and her brother to see the deceased regularly and did not object to her sitting on his lap and cuddling him. Jannette denies this (T 80). Tracey also deposed that she has kept letters that she received from the deceased (two of which were belatedly placed into evidence) (see her affidavit sworn 11 May 2020 at [9]).

87. [131]

    David says that it is clear that the relationship between Jannette and the deceased was not a close and loving one from the time Jannette sold the Glossodia Property in 2003 – namely for the last 15 years of the deceased’s life. David says that the relationship for that period was characterised by virtually no contact, which “petered out” to no contact for the last nine years of the deceased’s life, from 2009 onwards (referring to T 108.47).

88. [132]

    For David, it is submitted that there are sound policy reasons why family provision proceedings do not create an alternative means of obtaining compensation or damages for sexual abuse; the chief being that, unlike personal injury or any other proceedings brought during the life of the testator, in family provision proceedings the deceased cannot provide their side of the story. It is also said (which seems to be something of which I am being asked to take judicial notice) that posthumous sexual abuse allegations are very difficult, if not impossible, properly to defend. (It might, conversely, be said that historical sexual abuse allegations may also commonly be difficult to sustain. That does not, however, diminish the significance of those matters to complainants who have a genuine belief in the events having occurred.)

89. [133]

    Jannette says that the moral obligation owed by the deceased to her was that of a father towards an adult child (noting that they had been estranged for some years but blaming the estrangement on her father’s sexual abuse of her during her childhood). It is accepted that the moral obligation owed by the deceased to David is again that of a father towards an adult child. It is relevant in that context that David had lived with his father for most of his life and had cared for his father throughout his father’s dying years.

90. [134]

    Jannette further accepts that the 17 grandchildren and great-grandchildren who are beneficiaries, though not eligible persons, have a claim on the bounty of the deceased; noting that s 61(1) of the Succession Act provides that the interests of a beneficiary cannot be disregarded, even though the beneficiary has not made a claim. It is accepted that each beneficiary is entitled to rely upon the terms of the deceased’s Will and their competing claim as a chosen object of the deceased’s testamentary bounty.

91. [135]

    David says that the deceased did not have any “legal” obligation to Jannette once she became an adult (and presumably on that basis David would accept that the deceased owed no such legal obligation to him either). David points out that Jannette was financially independent of the deceased for 47 years prior to his death (i.e., since her marriage in the early 1970’s) and says that, accordingly, the extent of his obligations or responsibilities for her has further diminished. In addition, David submits that the limited communication between Jannette and the deceased over the last 15 years of his life from 2003 onwards, and the absence of contact in the last 9 years, lessens any obligations or responsibilities owed by the deceased to her (citing Nielson at [291]).

92. [136]

    David submits that the deceased’s moral obligation to him (as the deceased’s “loving and dependant youngest and only surviving son”, who cared for him in his final years, and remained dependent on him for the provision of accommodation at the time of his death), was far superior to the obligation to make provision for his long estranged and independent daughter (citing Nielsen v Kongspark at [293]).

93. [137]

    I have set out above the nature and extent of the deceased’s estate. The agreed net value of the estate is $2,422,588. There is no property that it is suggested is able to be designated now as notional estate.

94. [138]

    I have set out above the evidence of the financial resources and needs (or claimed needs) of each of Jannette and David.

95. [139]

    As to the other beneficiaries who have put in evidence of their financial circumstances for consideration, they are as follows.

96. [140]

    Leigh is the granddaughter of the deceased and the beneficiary of a 1/38th share of the estate. She is an unemployed single mother of a 6 year old boy (who is also a beneficiary of a 1/38th share of the estate). She has debts totalling $7,600 and several medical conditions (see her affidavit sworn 17 June 2019).

97. [141]

    Tracey is, as already noted, Jannette’s estranged daughter. She is 46 years old. She, too, is a granddaughter of the deceased and the beneficiary of a 1/38th share of the estate (as is each of her three children). She is an unemployed single mother of two daughters and a 7 year old boy with Autism Spectrum Disorder for whom she is the full-time carer. Her only income is a pension. Her net assets total $260,000 (see her affidavit sworn 11 May 2020 at [5]).

98. [142]

    The remaining 11 beneficiaries have not raised their financial circumstances, but they are all grandchildren and great-grandchildren of the deceased (see David’s second affidavit sworn 30 May 2019). As has been accepted, their interests cannot be disregarded, even though they have not made their own claim (s 61(1) of the Succession Act) (see Bowers v Bowers [2020] NSWSC 109 (Bowers v Bowers) at [97]-[98], per Hallen J; Sammut v Kleemann [2012] NSWSC 1030 at [139]-[140], per Hallen AsJ, as his Honour then was).

99. [143]

    As adverted to above, Jannette lives at a property at Jamberoo owned by a friend, Mr Townsend. Jannette’s evidence is that she is not, and never has been, in a de facto relationship or other type of domestic relationship with Mr Townsend. Her evidence is that she has lived at Mr Townsend’s property for about the past three years on the generosity of Mr Townsend because she is unable to afford her own accommodation.

100. [144]

     It is noted for David that there has been no disclosure of Mr Townsend’s financial circumstances; nor has there been any disclosure of the financial circumstances of Jannette’s estranged husband Robert (Jannette and Robert not ever having been divorced, as noted earlier).

101. [145]

     Mr Townsend gave evidence and was cross-examined. He appeared to accept that the property he owns would have a value of around $1.5 million, although he denied having had it valued recently (T 132). He denied that Jannette was his partner (T 134), and said he cared about her as a friend (T 133). He also denied (inconsistently with the history recorded in certain of the doctors’ notes) that the doctor had ever spoken to him about Jannette’s medication (see T 133).

102. [146]

     David points out that, in her affidavit evidence Jannette initially denied living in Mr Townsend’s house; however, she conceded that she did in later affidavit material and in oral evidence (see Jannette’s affidavit sworn 10 April 2019 at [44]; in contrast to Jannette’s affidavit sworn 15 April 2020 at [5]–[7]; although I note that in her affidavit sworn 10 April 2019, while Jannette says “I do not live with him and am not in a relationship with him”, that sentence is prefaced by her recounting that “I moved to stay on a property at Jamberoo that is owned by a friend, Peter Townsend and his wife whom I have had close friendship of over 40 years”). David notes that Jannette is financially dependent on Mr Townsend to the extent that he provides her with free accommodation for herself and her horses; and that they also share expenses such as groceries.

103. [147]

     It is submitted by David that the evidence reveals a “high degree of commitment to a shared life”. In that regard it is noted that two medical professionals have described Mr Townsend in their records as Jannette’s “partner” or “husband” (see Ex 5), and much reliance was placed on the statements recorded in those records. David also points to evidence that Mr Townsend on one occasion hosted a BBQ for Jannette’s son (which David attended) (see T 180.50).

104. [148]

     Pausing here, I draw little from the description, in the medical records to which David refers, of the reference to Mr Townsend as Jannette’s “partner” or “husband”. It is not clear whether those references in the records were attributable to Jannette’s description of Mr Townsend (which one would think would be unlikely to be the case in circumstances where Jannette knows that they are not married), or to the medical professionals’ assumption of a relationship between them. I note also that in Ex 8, a discharge summary from Illawarra Shoalhaven Local Health District, Peter is referred to as “her friend with whom she lives with” by presumably yet another medical professional. As noted above, Mr Townsend denied that the doctor had spoken to him about Jannette’s medication; though he accepted that he had driven her to doctors in the early days. Jannette denied that Mr Townsend had accompanied her into the doctors’ rooms, and although she appeared to accept that she must have said statements recorded in the medical notes (T 116) she was adamant that they were not “a couple” (T 114), and she point blank denied that they were in a de facto relationship (T 120).

105. [149]

     On the evidence, I am not persuaded that the two are in a de facto relationship. I accept Mr Townsend’s evidence in that regard. That said, it is not necessary for persons to be in a de facto relationship in order to be taken to “cohabit” for the purposes of considering an application for provision under the Succession Act. Persons will be cohabiting if they live together and share expenses such as rent and electricity, and, on occasions, food (see Nagy v Marton [2014] NSWSC 540 at [60]-[61] and [200] per Hallen J; see also Woodleigh v Williams [2016] NSWSC 979 at [27], per Kunc J; Cowap v Cowap [2019] NSWSC 1104). It is clear that to some extent the two are in a domestic relationship, in the sense that Jannette has been living at Mr Townsend’s property for four years, since around mid-2016 (see Ex 9 which notes this as her address).

106. [150]

     There is, in my opinion, sufficient evidence to conclude that they are in a form of domestic (though I do not suggest a de facto, in the sense of sexual) relationship. There is nothing in my opinion to warrant the conclusion that Mr Townsend’s support for Jannette does, or would in the future, go beyond the provision of rent-free accommodation and assistance with household expenses. Mr Townsend has been diagnosed with Parkinson’s disease. There is no reason to think that Mr Townsend will leave anything to Jannette when he dies (and, if the medical records that make reference to the stresses on Jannette of her relationship with his children are accurate, that may be unlikely). The possibility that Jannette might have a claim in the future on his estate under the Succession Act (as put forward in submissions by David) is speculative and hardly provides comfort that she would be successful in such a claim.

107. [151]

     I have noted above the personal circumstances of each of Jannette and David in this regard. In summary, Jannette’s evidence is that she suffers from poor physical and mental health including depression, anxiety, panic attacks, and arthritis. David’s evidence is that he is in poor health, suffered a heart attack earlier this year, is a diabetic, and suffers from osteoarthritis in his left knee (for which he says he requires a knee reconstruction).

108. [152]

     Jannette’s evidence is that she has suffered from depression and anxiety for about the last 20 years (see her affidavit sworn10 April 2019 at [46]); that she first experienced depression and was prescribed anti-depressants “several years” before she separated from her husband in 1996 (T 48.23), as a result of being involved in a motor vehicle accident where she thought she would die (T 48.33) and of witnessing another accident (T 48.41-42). Her oral evidence was that, before her mother died (in 2002), she “did not have much of a problem” with mental health issues (T 96; her affidavit sworn 10 April 2019 at [46]).

109. [153]

     David notes that in September 2017, a registered nurse, Daniel Garrett at the Illawarra Shoalhaven Community Health Service, recorded that the “longstanding” stressors described by Jannette as contributing to her anxious and depressive symptoms were “a high work load on the farm”, and “strained relationship with her two children”, and that recent stressors were recorded as “knee pain”, “increasing care needs of her friend with whom she lives”, and “conflict with her friend Peters [sic] family” (Ex 8). Her general practitioner, Dr Chalissery, in his report dated 11 April 2020, noted that her admission to the Nepean Hospital in 2009 after an overdose was “due to serious financial stress and conflicts with her daughter”.

110. [154]

     David says that there is no evidence that the sexual abuse allegations have caused Jannette mental health issues; nor that her mental health issues have prevented her from working. It is noted that Jannette was employed by Woolworths from 1998 until she resigned in 2005 (T 85.18-24), after a broken foot and workers compensation claim (T 82.15).

111. [155]

     David submits that, consistent with the decision in Page v Page, Jannette’s “1960’s abuse” allegations are not relevant to her claim for family provision, as they did not affect her ability to earn an income in the intervening decades in which she worked as a hairdresser and for Woolworths for extended periods. Nor, it is submitted, is there any evidence that the deceased’s alleged conduct towards her has contributed to her mental health issues which it is said first emerged 30-40 years after she alleges her father abused her in the 1960’s. David submits that, on the authority of Page v Page, as there is no evidence that the allegations have caused Jannette to suffer a physical or psychological disability impairing her capacity to earn an adequate income, those allegations are not relevant to the claim for provision.

112. [156]

     Further, it is said that there is no evidence that Jannette needs funds to cover her mental health medications, or the regular psychology sessions which Dr Chalissery reports she attends on Medicare rebated mental health plans.

113. [157]

     It is noted that Jannette had a knee replacement in 2019 to remedy pain dating to 2015. David says that Dr Chalissery’s report of 11 April 2020 that Jannette underwent physiotherapy and his comments that she is “mobilising well with her left knee” contradicts Jannette’s evidence that, while physiotherapy would assist her knee, she cannot afford it (see her affidavit sworn 15 April 2020 at [11]), and that her knee “keeps collapsing”, and the pain she has had for three to four years continues (see T 36.25). It is noted that Jannette failed to mention knee pain in her initial affidavit (or to explain that oversight).

114. [158]

     David further notes that in January 2020, Jannette had a left shoulder operation for arthritis in her left shoulder and a rotator cuff tear; that Dr Chalissery reports that post-operatively she commenced physiotherapy in March 2020, which she will need for at least three months, but did not recommend the additional physiotherapy which Jannette said in her third affidavit (at [12]) would assist her. It is noted that Jannette did not mention shoulder pain in any of her affidavits filed in 2019, before the trial was listed. It is said that it is in the sworn “updating” affidavit that Jannette for the first time described a “left” shoulder operation and pain (see her affidavit sworn 15 April 2020 at [12]), and attached specialist reports regarding left shoulder pain, but that in in oral evidence she repeatedly reported “right” shoulder pain, not mentioning any pain in her left shoulder (T 36.37–48). It is noted that right shoulder pain is not documented anywhere else. It is said that there is no reasonable explanation for this inconsistency in her evidence about the location of her shoulder pain. David submits that this gives rise to an inference that there is no pain (suggesting that an addiction to prescription opioids and benzodiazepines (see Ex 8) may cause Jannette to overstate pain) and noting that there was no mention of this pain in her first affidavit.

115. [159]

     David also says that Jannette’s mental health is currently stable, relying on how Dr Chalissery detailed his success in reducing her reliance on various prescription medications (Quetiapine, Diazepam, Temazepam) in his report. It is noted that Dr Chalissery reports that, while Jannette is still on strong medication to manage her depression:

116. [160]

     I accept that there are inconsistencies in the evidence in Jannette’s medical condition and that it seems from Dr Chalissery’s report she is coping reasonably well at the moment. That does not however address the concern that as she grows older she will no doubt require additional support (and, at the very least, a buffer for contingencies or the vicissitudes of life).

117. [161]

     As noted above, Jannette is presently 68 years of age. She will turn 69 years of age later this year.

118. [162]

     It is not suggested that Jannette made any such contribution.

119. [163]

     By contrast, David says that he lived with his parents for virtually all of his life and provided them with considerable emotional and physical care and support.

120. [164]

     Jannette’s evidence is that, in about 2009, the deceased provided Jannette with $6,000 after she contacted him at a time when she was in severe financial distress and owing unpaid rent for her accommodation (see her affidavit sworn 10 April 2019 at [34]). She also accepts that the deceased has made provision under his Will for her in terms of leaving her a 1/38th share of the residuary estate.

121. [165]

     David says that the deceased was generous in the provision which he made for the plaintiff during his lifetime. In this regard, David emphasises what was said in Sgro v Thompson concerning the significance of provision made for a claimant in the deceased’s lifetime (see at [90]-[92], per White JA, with whom McColl and Payne JJA agreed).

122. [166]

     David says that, after Jannette finished school her parents bought a hairdressing salon to provide her with employment. It is submitted that Jannette’s sworn affidavit evidence in which she described the salon as “my hairdressing salon” (her affidavit sworn 10 April 2019 at [19]), of which she “retained” ownership in her separation from her husband (her affidavit sworn 10 April 2019 at [31]), should be preferred to her “self-serving” evidence in cross-examination that her mother was the owner of the salon “technically” (T 69.27-38; T 88.31-35; T 94.16-45). David says that an inference clearly arises that the salon was “yet another” generous provision Jannette received from her parents in their lifetime.

123. [167]

     David says that Jannette also received an early inheritance or gift from purchasing the Glossodia Property at an undervalue from her parents, from which she went on to make a large capital gain (it being said that this gave her “a better start in life than most children could dream of receiving”). It is further said that the deceased lent Jannette $10,000, in or about 2003 (referring to Ex 13) (something denied by Jannette who said that she and the deceased were not on speaking terms when her mother was in hospital – see T 64); and it is noted that the last time Jannette saw the deceased was in 2009 when he gave her $6,000 to help her with her rent or at her brother Don’s funeral (T 109.11).

124. [168]

     It is submitted that, given the substantial provision which was made for the plaintiff in the deceased’s lifetime (and referring again to Sgro v Thompson), the provision that has been made for Jannette is proper and adequate; and that there should be no order for further provision.

125. [169]

     It is not necessary here to explain the contentions as to who owned the hairdressing salon or what the value of the Glossodia Property was at the time of its purchase by Jannette. I am prepared to accept that Jannette received provision during her parents’ lifetime in this form of assistance to provide her with an employment opportunity (whoever actually owned the salon), and to enable her to acquire the Glossodia Property (which, from a practical perspective enabled her to make a considerable capital gain and then – to the seeming benefit also of Tracey, though Tracey does not appear to accept this – to assist her to acquire the Wilberforce Property). That said, the deceased and his wife also provided provision in support of David, not least being the rent-free accommodation over almost all his life (which no doubt enabled him to use his income for holidays or to acquire vintage cars or other property).

126. [170]

     This is not in my opinion a case akin to that in Sgro v Thompson, where there was evidence a family understanding as to the early “inheritance” by one of the sisters. Rather, there is simply the suggestion that the earlier provision should now be treated as an “inheritance”.

127. [171]

     David points to his evidence that the deceased told him that he did not want to leave Jannette anything in his Will because of the Glossodia property (see his first affidavit sworn 30 May 2019 at [10](d)). It is noted that Jannette’s own evidence is that her father told her that if she ignored his request to buy the farm back it could cost her dearly and that in cross-examination she said that she “presumed that he could cut me out of his pension out of his will” (see T 59). (Jannette’s evidence in cross-examination was that she told her father that she could not afford to sell it back to him at the price she had paid for it – T 59.49, although she did not accept that he had told her he wanted to buy it back; rather, she says that her father told her he would have liked to live there – T 59.20).

128. [172]

     David says that the deceased’s testamentary intentions and motivations are also expressed in the 2003 Letter (Ex 13) to which I have referred above. Reference is made in this context to what Lindsay J said (at [48]) in Re Estate McNamara:

129. [173]

     There is no suggestion that Jannette was being maintained by the deceased prior to his death (although there was evidence of some sporadic financial assistance).

130. [174]

     Jannette’s evidence is that there is no other person who is liable to support her.

131. [175]

     David disputes this, placing weight on the fact that Jannette remains married to Robert Watton (referring to her affidavit sworn 10 April 2019 at [36]). David points out that a party to a marriage is liable to maintain the other party, in law pursuant to s 72(1) of the Family Law Act 1975 (Cth) (Family Law Act) to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether: by reason of having the care and control of a child of the marriage who has not attained the age of 18 years; by reason of age or physical or mental incapacity for appropriate gainful employment; or for any other adequate reason having regard to any relevant matter referred to in s 75(2) of the Family Law Act.

132. [176]

     As noted above, complaint is made by David that there has been no disclosure of Robert’s financial circumstances. It is noted that Jannette confirmed he is alive (albeit not in good health) and otherwise available to give evidence (T 102.43). David says that the failure to provide any evidence from him as to his financial circumstances and his relationship with Jannette should give rise to a Jones v Dunkel inference that his evidence would not have assisted Jannette.

133. [177]

     Pausing here, as to the issue of non-disclosure by Robert, I do not consider that any Jones v Dunkel inference should be drawn. The circumstances in which such an inference may be drawn were considered by Glass JA in Parker v Payne [1976] 1 NSWLR 191 (Parker v Payne) at 201–202. His Honour described three conditions which must be satisfied for a Jones v Dunkel inference to be drawn as whether the missing witness would be expected to be called by one party rather than the other, whether the missing witness’ evidence would elucidate a particular matter and whether the absence was unexplained. Of those conditions, the first is clearly not satisfied in the present case. To suggest that Jannette’s husband, from whom she has long been separated, is in any relevant sense in Jannette’s “camp” is fanciful (at least in the absence of any evidence to suggest any ongoing and amicable relationship between them). As to the explanation for his absence, in cross-examination Jannette gave evidence that there had been contact made with Robert and he had said that he did not want to get involved and could not see why this was anything to do with him. Jannette said that his position was “we did the property settlement and that should have been the end of the matter”. That evidence is by no means implausible. (As to the absence of production of documentation in relation to a property settlement, Jannette’s evidence was that there was no documentation and no orders made.)

134. [178]

     It is convenient here to note the following as to the drawing of such inferences. It is well known that a Jones v Dunkel inference is open where there is an unexplained failure to call evidence as to a matter which calls for explanation from a person whom it could reasonably be expected would be called to give such evidence. The rule in such a case permits evidence in relation to that matter to be given greater weight, and an inference or inferences to be more readily drawn, when the party who might have called evidence to the contrary has chosen not to do so.

135. [179]

     A Jones v Dunkel inference, if one does arise, can do no more than permit the court to infer that the uncalled evidence or missing material would not have assisted the relevant party’s case; it does not permit the court to infer that the uncalled evidence would have been positively damaging to that case. Thus, it allows for the more ready acceptance of evidence which might have been contradicted but which was not. What a Jones v Dunkel inference does not permit is a choice between two guesses or conjectures, nor does it supply missing gaps in evidence (Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446; (2006) 229 ALR 136 at [50]; his Honour’s statements on Jones v Dunkel inferences left undisturbed on appeal – see Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397; [2007] FCAFC 70).

136. [180]

     It is also important to keep in mind that the “rule” in Jones v Dunkel is not mandatory (as McColl JA noted in RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [96], Sackville AJA agreeing). If the court is comfortably satisfied on the evidence (circumstantial or otherwise) that a particular inference favourable to the party in question should be drawn, then the rule does not mandate that an adverse inference should instead be drawn by reason of that party’s failure to call a witness who might reasonably be expected to be able to shed light on that particular issue.

137. [181]

     Further, it is relevant to note that Glass JA in Payne v Parker (at 201) referred to the circumstances in which the “missing” witness would be expected to be called from one party rather than the other as including where “it would be natural for one party to produce the witness” or the witness would be expected to be available to one party rather than the other, or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where the witness “might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him”.

138. [182]

     As noted above, in the present case, the suggestion that Jannette would have been expected to call evidence from Robert, from whom she has long been separated, seems to me fanciful.

139. [183]

     As noted above, Jannette concedes that she did not have a close and loving relationship with the deceased. She says the deceased, by his conduct in terms of his sexual abuse of her during her child and teen years, effectively repudiated any notion that he was entitled to, or deserved, what could be called a normal father/daughter relationship. She also maintains that her continuing poor mental health is attributable in some part to the deceased’s conduct (but accepted that there were also other causes for this, including a car accident she had endured, witnessing another car accident, and her estrangement from her daughter).

140. [184]

     David points out that Jannette agreed in cross-examination that she never confronted the deceased with her allegations about his conduct in the 1960’s and gave him an opportunity to explain (see T 81.41-42). It is said that Lindsay J’s observations in Re Estate McNamara are therefore equally apposite in this case, namely that (at [37]): “[a]s best we can tell, [he] went to her grave without knowledge of any allegation of impropriety against her”. (Of course, if that be the case, that might be a two-edged sword – in that it might have been better for the deceased to have gone to his grave without knowing of such allegations than to have been put to the stress of defending them.)

141. [185]

     Further, David says that Jannette admits that she treated the deceased callously. There is evidence that when the deceased (then 82 years of age) called Jannette to tell her that Dorothy (his wife of 68 years) had died, Jannette told him that his wife did not love him (T 64.40); and that Jannette’s justification for this appears to be that she was upset that he did not tell her mother was in intensive care for 3 days (T 57.50).

142. [186]

     David says that the 2003 Letter is also powerful evidence of the callousness Jannette extended towards the deceased, referring to the reference to Jannette screaming at him “Get stuffed you old bastard I hate you I hope you drop dead”; failing to apologise; refusing to come and see him; and then, a little over 6 months after he had lost his wife, selling the Glossodia Property that he had been visiting every weekend since he was 24. (Jannette does not accept that she said the statements there attributed to her.) David says that the hurt that the deceased experienced as a result of this is expressed in the 2003 Letter where he says:

143. [187]

     As to her contact with the deceased over the years, reference is to what are perceived to be inconsistencies in Jannette’s evidence as to her relationship with her father, pointing to her initial affidavit that “[b]y the time I was about 15 years…I would run and hide from him. I was frightened of him” (at [16]); compared to her evidence (after David’s affidavit evidence that he never saw her run and hide from the deceased – see his first affidavit sworn 30 May 2019 at [8](b)) that “I did not run or hide from him. I just avoided him and kept out of the way as I got older” (see her affidavit sworn 3 July 2019 at [8](b)) and then her evidence in cross-examination that she did hide from him (T 79.45). It is said that the assertion that she avoided the deceased sits uncomfortably with her evidence that she took her father to a specialist after a confrontation with his general practitioner (see her affidavit sworn 3 July 2019 at [14]).

144. [188]

     As to Jannette’s evidence that, from her marriage, when she was 21, until his death, she had little contact with the deceased (see her affidavit sworn 10 April 2019 at [21], [23], [27]) and that her “children had little contact with the deceased” (see her affidavit sworn 10 April 2019 at [28]); it is noted that Tracey paints a very different picture of the very close relationship she had with the deceased. Her evidence was that this relationship was fostered by her mother when she was child; and that her mother took her and her brother to see the deceased regularly and did not object to her sitting on his lap and cuddling him (see her affidavit sworn 11 May 2020 at [9], [12], [16], [17], [18]). Reference is made to Tracey’s evidence that, from 1979 until 1985, Jannette often drove her mother home and when they arrived at her house, it was usual for them to go inside and say hi to the deceased (see at T 197.27). It is submitted that Tracey’s evidence as to her relationship with the deceased is consistent with the terms of the Will, in which she is appointed co-executor in the event that David is unable to act; and that that provision in the Will is “most inconsistent” with Jannette’s evidence that the deceased had little contact with Tracey and that the deceased did not seek or ask to see his grandchildren (see Jannette’s affidavit sworn 10 April 2019 at [28]). It is also submitted that the 2003 Letter demonstrates that, contrary to Jannette’s sworn evidence, the deceased did ask to see Tracey, noting that the letter says:

145. [189]

     Finally, it is noted that in cross-examination, Jannette admitted to letting her children play in her father’s yard and pool, sharing scones with him and her children and letting Tracey stay overnight at his house “when they were small” (T 67.9-44). It is said that the allegations made by Jannette are incompatible with her admissions in cross-examination that she let her daughter stay the night at his house. (Pausing there, it may well be that the explanation for this is that Jannette said this occurred when the children were small – around 5 years; given that she places the misconduct towards her as occurring from around 9 and when she was a teenager so a lack of concern for her children’s safety with the deceased at that time may not be inconsistent with her allegations about his conduct towards her – though this is just speculation.) Suffice it to note that Jannette was unshaken in cross-examination as to her allegations of sexual abuse and I accept that she genuinely believes it occurred.

146. [190]

     David’s case is that the estrangement between Jannette and the deceased was solely attributable to her callous conduct in selling the Glossodia Property her parents had “gifted” her, in breach of her promise not to do so, and her callous conduct in not giving her father a chance to buy back the Glossodia Property (referring to Ex 13, and David’s first affidavit sworn 30 May 2019 at [10](d), Tracey’s affidavit sworn 11 May 2020 at [24]). (I interpose to note that nowhere in the evidence is such a promise recorded other than to the extent that reference is made to it in the 2003 Letter). I do not accept that the estrangement can be treated as only referable to the matters to which David refers.

147. [191]

     David points to the fact that he was a loving and dutiful child to the deceased, noting that, excluding a few occasions, he lived with his father for his entire life (see his second affidavit sworn 30 May 2019 at [25]); and that, in the last 16 years of the deceased’s life, he lived alone with the deceased after his mother died (see his second affidavit sworn 30 May 2019 at [30]).

148. [192]

     It is said that in the 6 years prior to the deceased’s death, as the deceased’s health deteriorated, in addition to being a loving son the defendant became the deceased’s primary carer; that he provided assistance with activities of daily living – taking the deceased to doctors, assisting around the home, and doing his shopping the cooking and cleaning (see David’s second affidavit sworn 30 May 2019 at [32]). It is noted that he has paid substantial testamentary expenses on behalf of the estate, including $7,514 for the funeral (Ex 11) (albeit that he would be entitled to recoup these out of the estate, though it appeared that there was some uncertainty as to whether he intends to do so). It is said that he has made various contributions to the deceased’s estate (referring to T 150.7, T 151.49-152.1, T 152.14, T 152.43), though I note that some of those contributions seem to have been for shared expenses (and some were to his father’s estate while he was alive).

149. [193]

     David says (and I accept) that there can be no doubt that he has a very strong competing claim on the bounty of the deceased, which the deceased recognised by making him the primary beneficiary of his estate.

150. [194]

     None is here applicable.

151. [195]

     No particular matters were relied upon in relation to this factor.

152. [196]

     Jannette accepts that it is a significant step to override the expressed testamentary wishes of the deceased and that interference with a disposition in a will is only to be to the extent necessary to make such provision as “ought to be made” for the plaintiff’s maintenance and advancement in life.

153. [197]

     Jannette submits that her position is dire. It is said that, were it not for the generosity of Mr Townsend in allowing her to live at his property, Jannette would likely be destitute and homeless. Jannette says she would like to be in a position to purchase a modest dwelling in a village for older residents. She tendered evidence of recent sales and ongoing costs of accommodation in retirement villages at Lake Conjola and Nowra. (I note that it goes no further than indicating the likely costs of retirement accommodation in those areas.)

154. [198]

     Jannette seeks a family provision order which would allow her to discharge her debts, to provide her with a fund to enable her to fund future accommodation, to purchase a reliable second-hand vehicle, to “allow her to make ends meet”, and by way of contingency against future vicissitudes.

155. [199]

     In relation to David (the principal beneficiary), Jannette argues that he has had significant financial benefit from the deceased during the deceased’s lifetime and following his death, in that he has had the benefit of rent-free accommodation for the majority of his adult life at the Tennyson Point Property (noting that he continues to live at that property and pays no rent to the estate). It is submitted that David is in comfortable financial position when compared to that of Jannette.

156. [200]

     In relation to the other beneficiaries under the Will, as noted above only two put on evidence as to their (and their children’s) respective positions (namely, Leigh and Tracey). It is Jannette’s case that the interests of the 17 grandchildren and great-grandchildren should not assume significance when compared to her position. As to the position of both Tracey and Leigh, it is submitted that community expectations or standards assume that a grandfather does not ordinarily have a responsibility to provide for a grandchild, let alone a great-grandchild.

157. [201]

     Jannette accepts that there was not a close and loving relationship between herself and the deceased. She submits that the estrangement that existed between them was directly attributable to the deceased’s conduct towards her and, in the circumstances, was understandable. Jannette says that the relationship was not entirely extinguished in that she felt she was able to seek help from the deceased, and he to assist her, at a time when she was particularly vulnerable financially and in poor health.

158. [202]

     It is submitted that the deceased had an obligation to make proper provision for Jannette, taking into account: the size of the estate; the significant financial benefit the deceased afforded to David; Jannette’s straitened financial circumstances; and in the circumstances where it is said that Jannette and David were the only persons to whom the deceased owed any form of moral obligation.

159. [203]

     Jannette says that, apart from a 25 year-old car and horse float, she has no assets of any significance. It is said that her horses are more of a liability than an asset in terms of the costs of their upkeep; and in any event it is probable that she will be unable to continue to maintain them in view of her straitened financial circumstances. It is said that Jannette has no reasonable or probable earning capacity. As noted above, Jannette says that she is in poor mental and physical health.

160. [204]

     Jannette submitted that provision for her proper maintenance and advancement of life would be $450,000 in lieu of the provision made for her by the deceased in the Will. In closing submissions Jannette argued for a sum of around $486,000 (T 251.38).

161. [205]

     Complaint is made as to the level of disclosure by Jannette about her financial circumstances.

162. [206]

     It is noted that on 18 May 2020, the first day of the trial, a subpoena to produce documents issued to Mr Townsend (which David complains had been called upon without answer on three previous occasions before the Court) was returnable. David says that it is uncontroversial that Jannette lives rent free with Mr Townsend, that they share expenses such groceries, and that Jannette also keeps her 8 horses, without charge, on Mr Townsend’s property. It is also noted that Jannette remains married to Robert and that there has been no disclosure of his financial circumstances.

163. [207]

     Complaint is made that Jannette has failed to produce most of the documents sought as to her own financial circumstances; in particular, that bank statements have only been provided for recent months, rather than the past four years as requested; and that no tax returns, notices of assessment, or superannuation statements have been disclosed.

164. [208]

     David submits that, without financial disclosure of the amount of money Jannette has made working with horses in recent years and is capable of making in future, her needs cannot be properly assessed and quantified. It is submitted that the summons should be dismissed on the grounds that Jannette has failed fully and frankly to disclose details of her financial and material circumstances as they are at or about the time of the hearing (relying on what was said in Gail Patricia Stone v Michael John Stone [2019] NSWSC 233).

165. [209]

     David also invokes the authorities with respect to spendthrift beneficiaries, referring to the decision of Hallen J in Bowers v Bowers (see at [180]-[187]), and the earlier observations in obiter of Campbell JA (with whom Giles JA and Handley AJA agreed) in Hampson v Hampson [2010] NSWCA 359 at [102]ff.

166. [210]

     David submits that the greater provision which the deceased made for him under the deceased’s Will is reflective of his contribution to the deceased’s welfare and estate, as well as his dependence on the deceased. It is submitted that, if an order for further provision for Jannette were to be made, David’s share of the estate should not bear the burden of that provision given David’s strong moral claim as a loving child of the deceased and David’s own need.

167. [211]

     As adverted to above, David says that Tracey’s evidence as to her relationship with the deceased is consistent with the terms of the Will, in which she is appointed co-executor in the event that David is unable to act. It is submitted that that provision in the Will is inconsistent with Jannette’s evidence that the deceased had little contact with Tracey and that the deceased did not seek or ask to see his grandchildren.

168. [212]

     The evidence of David (and, somewhat remarkably, also of Tracey) is that Jannette was “spoiled” by the deceased (see David’s first affidavit sworn 30 May 2019 at [7](a)). (Pausing here, to the extent that I was invited to take judicial notice of the difficulty of defending historic sexual abuse claims, one might also take judicial notice that child sexual abusers commonly do so secretively and some at least tend to “groom” their victims, so that the allegations by Tracey – even for the limited weight they bear – and David of the deceased “spoiling” Jannette do not take the matter very far.) Reference is made in that context to Jannette’s evidence that the deceased gave her money in 2009 (the sum of $6,000). David says that the deceased indulged Jannette’s love of horses as a child, and submits that in 1998 the deceased and his wife “gifted” the Glossodia Property (which they visited every weekend) to Jannette for a figure of $165,000, which David says was far below market value. David says that the sale of the property for $640,000 three years later in 2003 amounted to a capital gain of $475,000 (or 347%) in five years. It is noted that each of Jannette, David and Tracey gives evidence that the deceased was upset with Jannette because she sold the Glossodia Property. It is noted that Jannette deposes (at [33] of Jannette’s affidavit sworn 10 April 2019) that the deceased told her that: “if you don’t give it back to me, you’ll pay for it later”. Tracey’s evidence is that the deceased offered to buy the Glossodia Property back, but that Jannette sold it without giving him a chance to do so (Tracey’s affidavit sworn 11 May 2020 at [23]-[24]).

169. [213]

     David’s submission is that being unable to buy the Glossodia Property back, or visit it in later life, was one of the deceased’s greatest regrets in life, and that the deceased told him that he did not want to leave Jannette anything in his Will because of the sale of the Glossodia Property (see David’s first affidavit sworn 30 May 2019 at [10](e)).

170. [214]

     Tracey and David both gave evidence that Jannette allegedly is addicted to prescription drugs. Tracey says she became estranged from Jannette in about 2006, in connection with this apparent addiction (which addiction Tracey says makes Jannette “incoherent and illogical”) (see in this context David’s first affidavit sworn 30 May 2019 at [20]).

171. [215]

     David emphasises that in Sgro v Thompson, White JA (at [92]) considered the position where the adult child who claimed provision from the estate had already received by way of an early inheritance what would otherwise have been their share of the estate; his Honour there seeing no reason to conclude that the deceased in that case did not act as a wise and just testatrix in weighing the competing claims of both daughters on the estate, having regard to that “early inheritance” and the family’s understanding as to the consequences of that early inheritance. David places weight on those observations (in circumstances where his contention in the present case is that Jannette has had the benefit of being “gifted” the Glossodia Property and that this is some form of early inheritance). Reference is also made to Penfold v Predny [2016] NSWSC 472; Henry v Hancock [2016] NSWSC 71; and Page v Hull-Moody at [176], per Hallen J, in this context.

172. [216]

     As to the allegations made by Jannette of sexual misconduct by the deceased, it is noted that these are allegations of conduct between 50–60 years ago in the 1960’s (see Jannette’s affidavit sworn 10 April 2019 at [13]–[16]), as well as a laundry incident in the late 1990’s (at which time the deceased was in his late seventies) (see Jannette’s affidavit sworn 10 April 2019 at [22]).

173. [217]

     David emphasises the standard of proof required to the making of factual findings of such allegations (referring to the requirements of s 140 of the Evidence Act), and referring to M v M (1988) 166 CLR 69; [1988] HCA 68 (M v M),where the High Court said (at 76) that the court should not make a positive finding that an allegation of sexual abuse is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (at 362) by Dixon J; the High Court in M v M there noting also that an allegation that a parent has sexually abused a child is often easy to make but difficult to refute (at 77).

174. [218]

     David says that the allegations that Jannette makes to explain her estrangement from the deceased are serious (as indeed they are), contending that the standard of proof to be applied is the balance of probabilities, as provided for in Briginshaw v Briginshaw (at 361-2).

175. [219]

     David says that the position in 2017 when the Will was made was that: the deceased was 95 years of age; he, David, had been the deceased’s live-in primary carer for five years; Jannette had withdrawn her support and love for the deceased in his declining years; Jannette had sold the Glossodia Property that the deceased loved (and that David says “she had been gifted as an early inheritance”) and wasted the proceeds; the deceased was in contact with and had a loving relationship with Tracey and Tracey’s three children; and, while she was still taking up to five Valium a day and having problems with her thought and speech, Jannette “had fallen on her feet and moved into a very comfortable house on a large horse property with Peter Townsend”.

176. [220]

     It is submitted that it was against this background that the deceased changed his Will to increase David’s share of his estate and to reduce Jannette’s share (and to redirect part of it to her children and grandchildren, while also redirecting his deceased son Don’s share of the estate to Don’s heirs, as well as providing for Bruce’s heirs). David submits that this is not a case in which the community would expect the deceased to have made a greater provision for Jannette.

177. [221]

     It is submitted that a wise and just testator, having already given Jannette a start in life from which she made a large capital gain, and who had been subjected to callous conduct by Jannette, was entitled to make no provision for Jannette. It is said that the fact the deceased did make (some) provision for her should operate to restrain interference with the deceased’s freedom of testamentary disposition.

178. [222]

     David further submits that, given the estrangement, if the provision for Jannette is found to be inadequate then any provision for her must be modest having regarding to the size of the estate and the competing claims of the other beneficiaries (referring to Towson v Francis at [187]). In opening written submissions it was submitted that a sum of no more than $250,000 would be adequate and proper in those circumstances (noting that a lump sum of $450,000 would equate to 19% of the estate). In closing submissions, it was said that an additional provision of $36,247 (taking Jannette’s total provision to $100,000) would be “more in step” with recent case law. Reference is made in particular to the decision of Lindsay J in Re Estate McNamara where his Honour awarded the plaintiff $75,000 in the context of an estranged relationship between the claimant and deceased, where historical sexual abuse allegations had been made against a parent, and where the estate had a potential value of $2,268,750. It is accepted that it might be said that in that case the plaintiff’s need was not as great as in the present case, but it is said that in that case there was no provision made for the plaintiff in the deceased’s lifetime, whereas here it is said that substantial provision was made for Jannette during the deceased’s lifetime; a factor that David says weighs against any additional provision being provided at all (relying on the authority of Sgro v Thompson).

179. [223]

     Finally, David says that Jannette is, on her own admission, a spendthrift who has wasted large sums of money which she has received at various times over her life (referring to Jannette’s affidavit sworn 10 April 2019 at [42]). Tracey’s evidence was that, “if [Jannette] has 5 cents in her pocket, she will spend it, mostly on her horses” (see Tracey’s affidavit sworn 11 May 2020 at [37]).

180. [224]

     In these circumstances, reference having been made to the authorities with respect to spendthrift beneficiaries, such as Bowers v Bowers at [180]-[187]; Leary v NSW Trustee and Guardian [2017] NSWSC 1113 (Leary), David submits (referring to Carroll v Cowburn [2003] NSWSC 248) that careful consideration should be given to the form of any provision now to be made. It is submitted that a “creative solution” might be that any additional provision awarded to Jannette be held on trust for her in the estate, only to be released in the event that Mr Townsend dies leaving her homeless, in which case the executor should apply it directly towards the purchase price, rent, or bond required to secure accommodation for her. Alternatively, it is submitted that (as in Bowers v Bowers) a condition might be imposed that any lump sum should be used to secure accommodation, either through the payment of an accommodation bond, purchase of a property, or the payment of rent in advance.

181. [225]

     As to the burden of any provision, it is noted that there are 19 beneficiaries of the estate (including Jannette and David), eight of whom have raised their financial circumstances in evidence: namely, Jannette, David, Tracey (whose evidence extends to her three infant children) and Leigh (who has parental, medical and financial responsibility for an infant beneficiary).

182. [226]

     It is submitted by David that due weight must be given to the fact that the testator regarded the moral claims of the other beneficiaries “as superior to any further provision” (Counsel’s emphasis) for Jannette than a 1/38th share of the estate. It is submitted, however, that the silent beneficiaries are in a different category from the beneficiaries who have raised their financial circumstances, and that this Court may, and should, have regard to the “reasonably dire” financial position of each of those beneficiaries in deciding where the burden of any provision should rest.

183. [227]

     David submits that the burden of any provision made for Jannette should rest on the silent beneficiaries (subject to one possible exception noted below). It is said that if provision of $250,000 were to be made for Jannette this would reduce each of their bequests (on David’s calculations) from $63,752 by $22,727 to $41,025. It is said that a lesser provision would be felt less by each of these beneficiaries and would involve less interference with the deceased’s freedom of testamentary disposition which must be accorded due weight (pointing to what I said in Cringle v Cringle [2018] NSWSC 1558 at [141]). Reference is also made to the diminution arising from the costs which have been incurred in these proceedings.

184. [228]

     Insofar as Jannette submitted that it was open to rest the burden of any provision made for her on David alone (T 249.44ff), it is submitted that that to rest the full burden (or “even any” of the burden of the provision) on David, would be “completely inequitable” in a case involving 17 other beneficiaries. It is submitted that to do so would accord insufficient weight to the clear intention of the deceased that David was to be the primary beneficiary of his estate. David says that the greater provision which the deceased made for him is reflective of both David’s contribution to the deceased’s welfare and estate, as and David’s dependence on the deceased. It is said that the deceased had a moral obligation to provide for David, given David’s ongoing dependence on the deceased for accommodation at the time of the deceased’s death and for David’s needs (as a low income earner in poor health, who is nearing retirement). It is further submitted that placing the burden of any provision on David may jeopardise his ability to purchase alternative accommodation in Sydney. David say that to reduce his present entitlement (currently standing at $1,275,046) by $250,000, resulting in a sum of a little over $1,025,046, would likely preclude him purchasing a property in Sydney with space for his cars and the deceased’s dog.

185. [229]

     Further, it is submitted that, unlike the other 17 beneficiaries (i.e., excluding Jannette), David, as the son of the deceased is recognised to have a moral claim on the estate as a loving child of the deceased; whereas all of the other beneficiaries as grandchildren and great-grandchildren generally do not have such a moral claim. Reference is made to the observation of Hallen AsJ, as his Honour then was, in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113] in this regard.

186. [230]

     That said, David accepts that, of the silent beneficiaries, Lynette has a greater moral claim on the estate than the other silent beneficiaries (because she lived with the deceased from the age of 4 to 26) and that no burden should be placed in her provision (see T 68.1), pointing to what was said in Chapple v Wilcox [2014] NSWCA 392 (Chapple v Wilcox) by Basten JA at [14] in obiter that there may be circumstances in which widely held community standards might expect a grandfather to make some provision for his grandchildren, for example where they had maintained a strong relationship and where there was reason to doubt the willingness or the ability of the parents to make adequate provision for their children.

187. [231]

     Finally, David submits that Tracey would fall within the purview of the observation in Chapple v Wilcox exception, given the evidence of her strong relationship with the deceased and her estrangement from her parents (T 210.38), which it is said means that she is unlikely to receive an inheritance from them. It is said that this evidence adds weight to David’s submission that no burden should be placed on the provision made for her.

Determination

1. [232]

   As to the complaints made by David of inadequacy of disclosure by Jannette, it is well recognised that it is incumbent on an applicant for further provision on an application such as the present to disclose to the court as fully and as frankly as possible all details of his or her financial and material circumstances (see Collings v Vakas [2006] NSWSC 393 at [66]-[67], per Campbell J, as his Honour then was; Foye v Foye [2008] NSWSC 1305 at [14]-[15], per McLaughlin AsJ; In the Estate of the late Anthony Marras [2014] NSWSC 915 at [238], per Bergin CJ in Eq); and D H Singh v G K Singh [2015] NSWSC 1457 at [152]-[154], per Black J).

2. [233]

   In Wilson v Vine [2003] NSWSC 341at [39], Macready M, as his Honour then was, in addressing a submission that the conduct of the plaintiff in falsifying her evidence was such as to disentitle her from relief by way of further provision, said:

3. [234]

   The position in the present case is distinguishable from those in which false evidence is given throughout the proceedings (see for example Ahmad v Ahmad [2002] NSWSC 579), or where there has been a deliberate expenditure of funds shortly prior to the application without offering any adequate explanation or documentary evidence as to what had been done with that money (see for example Mayfield v Public Trustee [2009] NSWSC 330; and as was the case in Leary).

4. [235]

   Here, I consider that it is possible to form an adequate view of Jannette’s current financial circumstances so as to be able to make a determination as to whether she has been left without adequate or proper provision. Therefore, I do not accept that Jannette’s application should be dismissed at the outset for reasons of non-disclosure (as David submits).

5. [236]

   As to the evaluative process required by s 59 of the Succession Act, I have taken into account all of the factors set out above and I have concluded that, considered at the time of the determination of Jannette’s application, the deceased did not make proper provision for her under his Will. Relevantly, I consider that this is a case of the kind referred to by way of example in Taylor v Farrugia [2009] NSWSC 801, where Brereton J (as his Honour then was) said that (at [58]):

6. [237]

   Jannette’s personal circumstances have been considered above. There can be little doubt that she has fallen on hard times (and hence is dependent on the support of her friends); she has not accumulated superannuation nor has she made adequate provision for her retirement. She has ongoing health issues (as also does David) and she is unlikely to be employed in the future. She has little by way of assets. The receipt by her of Centrelink income may address her current living expenses but it does not provide an adequate buffer for future contingencies, nor does it address Jannette’s potential need for accommodation in the future (if her current living arrangements were to cease, whether on Mr Townsend’s death or otherwise). The fact that criticism might be levelled at Jannette for not having more prudently managed her financial affairs does not answer the fact that she is presently in impoverished circumstances.

7. [238]

   I accept that provision has been made for Jannette during her life (as it was also for David, albeit in different ways), and on any view of the Glossodia Property sale to her one might say that the provision was not insignificant, but I do not regard this as determinative in circumstances where the benefit of that provision has been expended (and where there was no family understanding or agreement that this was the limit of her “inheritance” as such, notwithstanding that Jannette seems to have understood that there was a risk that she would be cut out of the Will if she sold the Glossodia Property).

8. [239]

   I accept that the estrangement between Jannette and her father is a relevant factor to take into account. However, I also accept that on Jannette’s part such estrangement is likely to have been motivated by her belief that she was sexually abused by her father. I make no finding as to whether that belief is correct (nor could I possibly make any such finding on the evidence before me). In Re Estate McNamara, Lindsay J observed the following, in similar circumstances to the present proceedings (at [43]):

9. [240]

   I endorse his Honour’s approach in that regard (see also the similar approach taken by McLaughlin AsJ in Evans v Levy [2010] NSWSC 504 at [47]). In the present proceedings, Jannette’s belief that she was sexually abused by the deceased is relevant insofar that this is not a recent invention; and it certainly explains what might otherwise have been a discounting factor (namely, her lack of contact with the deceased after her mother’s death). It is telling, in my opinion, that the level of family contact by Jannette seems to have largely come to an end when her mother died, which would be consistent with her wishing before then to maintain a relationship with her mother even though that involved a level of contact with her father. It is also relevant insofar as it may have caused Jannette a measure of psychological harm which has increased her financial needs in regards to her health albeit that the evidence suggests it may be only one of a number of factors and it is not possible to make any finding as to the overall causal effect of any such conduct as may (or may not) have occurred or by reference to what I accept is Jannette’s genuine belief that such conduct occurred. In saying this, I certainly do not suggest that any order for further provision is, or should be seen as, reparation or compensation for any such conduct in the past. It is not. Rather, it is an order that follows the evaluative process set out in the Succession Act, having regard to the factors that I have discussed above.

10. [241]

    I accept that David was understandably the primary object of his father’s testamentary bounty, given his longstanding relationship with his father and his care of his father in his last years. I also take into account the evidence of the deceased’s testamentary intentions (and the hurt it seems clear that he experienced when the Glossodia Property was sold not long after his wife’s death – even though it is not clear to me how he would have been in a position, without selling or mortgaging the Tennyson Point Property, to have bought it back at that stage); and I accept that no doubt there was hurt inflicted on him by Jannette’s words when the deceased told Jannette that her mother had died (even though it may be said that the deceased was himself callous to the extent that he did not alert Jannette to the fact that her mother was in intensive care, and so seems to have deprived her of an opportunity to make her last farewell of her mother, which may well have prompted her verbal attack on her father at that time).

11. [242]

    In all the circumstances, I consider that provision of a 1/38th share of the deceased’s (not insubstantial) estate in Jannette’s favour (which would translate to somewhere in the order of $60,000) was not proper provision for her maintenance in life. As to whether in those circumstances an order for further provision should be made, I have taken into account not only the factors set out above but also the position of David and the other beneficiaries (including the “silent” beneficiaries) and the size of the estate.

12. [243]

    I have concluded that the appropriate order to make is for Jannette, in lieu of the 1/38th share of the residue of the estate for which provision is made in the Will, to receive a pecuniary legacy of $300,000. This should provide her with funds for a rental bond (or perhaps the acquisition of a small unit in a retirement village) and with a buffer for future contingencies. I do not accept that an order of the kind sometimes made in the case of “spendthrift” beneficiaries should here be made. The nature of Jannette’s self-admitted “waste” of moneys in the past related to the care and upkeep of her horses. I treat her admission that this was “wasted” money with some caution (bearing in mind that there are members of the community who might well regard expenditure on horses as not wasted money at all). Moreover, for all the aspersions cast on Jannette as to her addiction to painkillers or the like, I am not persuaded that (particularly after the cautionary experience of this litigation) there is a sufficient likelihood of spendthrift behaviour on receipt of such a legacy for me to make orders of the kind David has suggested. Jannette must surely realise that if she dissipates this inheritance it will be at her future peril.

13. [244]

    I consider that the burden of the legacy for Jannette should be borne out of the half share of residue that the deceased left to be divided amongst the other family members (but excluding for this purpose the three granddaughters whose personal circumstances were put in issue or otherwise raised by David – namely, Lynnette, Leigh and Tracey). I would not exclude, from the burden of the further provision, the share of the estate left to the children of each of Lynette, Leigh and Tracey since, as great-grandchildren, their claim on the deceased’s testamentary bounty is even further removed than that of their mothers (i.e., the deceased’s granddaughters) and there is no reason to believe that their mothers will not continue to provide for them. Moreover, if the burden is borne amongst those beneficiaries as well, then the overall burden of it by other beneficiaries is correspondingly reduced. I do, however, consider that David’s additional 1/19th share of one-half of the estate (over and above his initial half share of the estate) should bear a corresponding portion of the burden of the further provision for Jannette (since it seems clear that the deceased regarded David’s principal claim to his testamentary bounty as satisfied by a half share of the residuary estate and then treated him as equal with the other beneficiaries in relation to the balance of the estate and since, on my rough calculations, this will result in only around a $15,000 reduction from what he would otherwise receive). That will still leave David with the largest share of the estate (and should enable him to acquire a property suitable for his needs).

14. [245]

    Accordingly, I have determined that the further provision for Jannette should be made such that, after the payment of any legal costs out of the estate and the expenses of sale of the Tennyson Point Property: David first receives his one-half share of the residue of the estate (approximately $1,211,294 on my calculations); each of Lynette, Leigh and Tracey next receives a 1/19th share of the remaining one-half share of the residue of the estate (i.e., approximately $63,752.32 each); next, of the balance remaining (i.e., approximately $1,020,037.05), the sum of $300,000 be paid as a pecuniary legacy for Jannette in lieu of the distribution made for her under the Will; and, finally, the remaining balance of the estate be distributed in equal shares as between David and each of the remaining beneficiaries (i.e., the beneficiaries other than Lynette, Leigh, Tracey and Jannette) (such that each would receive a 1/15th share of the balance of the residuary estate or, on my calculations, approximately, $48,002).

15. [246]

    As to costs, David indicated in the course of submissions that he wished to be heard on costs indicating that a number of offers of compromise had been made under the UCPR. I will direct that written submissions on costs be provided by the parties within seven days, with a view to dealing with that issue on the papers.

16. [247]

    I should note, however, that the order for further provision out of the estate in favour of Jannette has been based on the assumption that in the ordinary course she would receive her costs of the proceedings on a party/party basis out of the estate (and David would receive his costs of the proceedings on an indemnity basis out of the estate), thus producing the net distributable estate on which my calculations have been based. If that is not to be the case, then I may need to revise the sum for which further provision is to be made.

Orders

1. [248]

   For the above reasons I make the following orders:

   1. (1)

      Extend the time for the filing of the plaintiff’s summons to 11 March 2019.

   2. (2)

      Pursuant to s 59 of the Succession Act 2006 (NSW), order that provision be made out of the estate of the deceased in favour of the plaintiff in the sum of $300,000 in lieu of the provision made for the plaintiff under the deceased’s will dated 28 November 2017.

   3. (3)

      Order that the burden of the provision ordered by order 2 above be borne out of the one-half share of the deceased’s estate that was left equally as between the nineteen named beneficiaries (but excluding Lynette Maroney, Leigh MacTaggart and Tracey Watton), such that the net residuary estate be distributed as follows and in the following order:

   4. (4)

      Direct the parties to file and serve brief written submissions as to costs within seven days, with the issue of costs to be dealt with on the papers.

   5. (5)

      Note that order 2 has been premised on the usual costs orders for claims of this kind being made and may need to be revised having regard to the forthcoming submissions as to costs.

   6. (6)

      Liberty to apply if there is any issue arising in relation to the implementation of the above orders.