WARNING: This article discusses sexual and physical assault and mental health problems
The children of a man who sexually abused and "tormented" them when they were young are in a legal stoush with his new family, saying they are entitled to a share of his assets.
The three siblings successfully argued their case in the High Court but that decision has now been overruled in a recently released decision following an appeal.
Court of Appeal judge Justice David Collins has ruled the father was in breach of his "fiduciary duty" to his children by sexually and physically assaulting them when they were younger. However, he said that doesn't mean they are entitled to the assets he left behind when he died.
The father, who has name suppression and is referred to as Robert, frequently abused his wife and their children - including sexually abusing his daughter from when she was seven to 13 years old, and often beating his son with a belt. The abuse led to the children suffering various mental health and drug addiction problems in their adult life.
Robert and his wife, referred to as Rose, had four children identified as Greg (who died in 2015), Alice, Barry and Cliff. After their marriage ended in 1983 Robert started a new relationship with a widow, identified as Phillipa, who had three children.
Court documents reveal how Alice's self-esteem was so low she tried to end her own life when she was 11. She went on to develop an eating disorder, suffered from depression and found it difficult to maintain relationships with others and hold down a job.
Rose wrote a letter to Robert, confronting him about the "unforgivable" abuse to which she received a letter from his lawyers saying that the allegations were false and defamatory, and if the statements were repeated legal action would be taken.
The decision detailed how Barry also suffered from the abuse and "torment" he endured at the hands of his father. He left school, and became involved in gangs when he was 17, resulting in him getting stabbed and being admitted to the hospital with life-threatening injuries. Robert did not visit his son in hospital.
Cliff left home when he was 15, after suffering from and witnessing Robert's violence, and effectively had no contact with his father from then on. He also developed a "severe and prolonged" drug addiction, resulting in a number of near-death experiences.
Following the marriage separation, Alice said Robert sometimes stood outside pointing a gun at their house and made threatening phone calls during the night.
Between 1992 and 1994 Alice and her brothers agreed not to take legal action against their father and would instead have no contact with him.
According to the decision, Alice gave birth in 1996 and relied on the benefit, as well as income from part-time cleaning and teaching jobs. Although she was not in contact with her father anymore, family members told Robert about Alice's financial struggles.
Robert's new partner Phillipa described him as a caring friend and said she never had any concerns about Robert's relationship with her own children and grandchildren. She also said Robert had tried to reconnect with his children but his efforts were "rebuffed".
From 2001 to 2005 Robert prepared seven wills, in which initially $25,000 was to be left to each of his children.
However, over the years changes were made to the wills until in 2014 Robert decided to set up a trust to protect his assets in the event he became ill and to "prevent any of his family from chasing" his assets.
Robert, as well as Phillipa's daughter's partner, were trustees. The beneficiaries of the trust include Phillipa's three children and their grandchildren who were secondary beneficiaries.
Robert gifted his home and some shares to the trust, taking its total value to about $700,000.
In 2016 he executed his final will, in which Alice, Barry and Cliff were not named as beneficiaries.
Any of his belongings were to go to Phillipa's children and the estate was worth about $47,000 by the time Robert died of cancer.
That same year, Alice, Barry and Cliff made a claim under the Family Protection Act that Robert owed them fiduciary duties, which he breached when he gifted his home and shares to the trust in order to prevent his children from making a claim.
The matter went to the High Court before Justice Cheryl Gwyn, who found that a fiduciary relationship existed between Robert and his children which gave rise to a fiduciary duty not to sexually or physically assault them.
She found that Robert gifting his assets to the trust was in breach of his fiduciary duties to the respondents and was imputed to the other trustees.
Justice Gwyn ruled that the provisions should fall back into the estate so Robert's children could make a claim under the Family Protection Act for their share of assets.
However, the trustees appealed this decision and the matter went to the Court of Appeal before Justice Collins, with Justice Stephen Kós and Justice Murray Gilbert.
Justice Collins, who described the case as difficult in the decision, found Robert was "deliberately exercising his discretion so as to adversely affect the interests" of his children by moving his assets into the trust.
"Robert was effectively depriving his children of any meaningful opportunity to have the courts determine their rights under the Family Protection Act."
However, the decision states that while Robert had a fiduciary duty not to sexually or physically assault them, the assets were his alone and he was entitled to deal with them as he pleased.
"Robert did not acquire or hold the assets for the benefit of his adult children," Justice Gilbert wrote.
Justice Stephen Kós agreed and ruled that while Robert had a fiduciary duty to his children, this stopped when they no longer lived with him or were under his care.
Justice Collins acknowledged that Alice's life had been "ruined" by the egregious nature of abuse Robert inflicted on her.
"Alice's trauma meant that it was impossible for her to live anything remotely resembling a normal and independent life."
The decision ruled that the transfer of assets to the trust was in fact not a breach of Robert's fiduciary duty and the costs order made in the High Court was quashed.
The appeal was allowed and the respondents, Robert's children, must pay the appellants, the trustees' costs for a standard appeal.
Mary Joy Simpson, a partner at Hesketh Henry, said there was often a lot of family hurt involved in claims such as this one, but each case varied due to different family circumstances.
She said family disputes over wills may be about equal provision; however, in this case there was no provision at all and the father had sought to "protect" assets from the children's claim by placing them in trust.
"I think it's a significant issue for children not to receive any financial provision from parents."
Simpson said generally, claims to rectify no provision are successful, but the whole process is expensive and there must be assets in the estate to satisfy the claim.
- By Emily Moorhouse
