Family Values: successful FPA by trans woman, following estrangement & disharmony among family (VIC)

I recently read an interesting media article on a family provision case and had to look further into get to the bottom of it. It involves a case where an adult child made a claim against a father’s estate for further provision having received no provision from the estate under the father’s Will. What was interesting and somewhat sensationalised by the media was the fact that the applicant wished to undertake gender reassignment surgery and sought provision from the estate ultimately for that purpose. Like most cases you hear about in mainstream media, there was also more to the story.

In the case of Joss v Joss [2020] VSC 424, the applicant was a transgender woman who sought further provision from her father’s estate which comprised of value approximately $12.4 million.

The deceased, Peter, was survived by his wife Judith, and their two children Ronald and Jessica (the applicant). After a difficult relationship for many decades, the applicant and the deceased were largely estranged leading up the deceased’s death.

Importantly, from the perspective of family provision law, the applicant had not been engaged in meaningful employment since the late 1990s and was wholly dependent on the deceased notwithstanding the difficult relationship and later estrangement.

The judgement in this case gave a very comprehensive coverage of the tumultuous and challenging relationship experienced between the deceased and the applicant. Her Honour noted that which is common in family provision claims about the family history that always brings about ‘very different perspectives or beliefs about why things did or did not happen’(para 24).

In an incredibly summary, the applicant gave evidence that she identified as female from about the age of 10. As a very conservative, Jewish family, her parents are said to have not accepted this and did not support her intentions for future gender reassignment surgery.

For many years throughout their difficult relationship, the applicant and the deceased would engage in various emails where the applicant would demand substantial amounts of money from her father often referring to it as an early inheritance, of which the father refused.  It was commonly understood within the family that the applicant’s parents would not pay for the gender reassignment surgery that the applicant desperately desired.

In addition to the large sums demanded of the deceased, the applicant would also demand money for her ongoing living expenses and travel expenses when she would go overseas or attempt to come home from being overseas. The applicant was said to engage in endeavours overseas with the full knowledge that it would upset her parents in doing so as such endeavours being politically and personally offensive to them. When her father would refuse or she would not get what she wanted, Her Honour noted that would enlist the help of other family members or friends to ask for her and do her bidding to her mother and father for money. The applicant’s brother also at the centre of such requests. The applicant accused her brother of having received money to buy one of the family businesses and as such she felt it her right to get the same during her lifetime.

The applicant had always received a regular income source from her family to meet her living expenses and lived in a unit that her father had bought for her, along with a company car for her use with all those expenses also accounted for by him or through the various family companies.

The applicant was said to have often spoken about her parent’s negative treatment of her to the families friends and family which, as her parents were very conservative and private people, would cause much distress to the family.

After failed attempts to receive the lump sum of money is that she requested, the applicant had threatened to kill herself if she did not get the money that she sought.

After varied attempts to manage expectations of the applicant and the challenges being suffered on both sides, the deceased sent a letter to the applicant in August 1999 setting out a proposal by which the applicant would receive $800.00 per week on the condition that she had no contact with her parents (either direct or indirect), that she ceased denigrating her parents to third parties or acting in a manner designed to undermine their standing in the Jewish community or with business associates, that she would retain the use of her car and the upkeep expenses to be paid as long as a car remained in her possession, coverage of expenses of psychological and psychiatric treatment only but no further coverage of other debts or credit cards.

The applicant gave evidence that she blamed her parents for her situation in life, and unhappiness, and that this all triggered a psychiatric episode saying ‘they caused me to be institutionalised by their rejection, their lies, their deception’. The applicant also gave evidence that it was after receiving this letter that she devised a plan to kill her father with a crossbow and then stab herself at the family’s synagogue. The applicant’s plans to kill her father were thwarted after the deceased was alerted to the threat and the police were called. The police went to the applicant’s home, seized the crossbow and arrested the applicant and she was admitted involuntarily to a psychiatric hospital. No charges were laid against the applicant at the request of the deceased.

Shortly after the deceased’s letter to the applicant was received, Ronald received a call from a friend (Martin) who had spoken with the applicant and held what Ronald referred to as a shocking and unusual conversation which prompted him to retain a file note of the conversation the same day. The conversation was said to be about blackmail if Ronald’s parents did not let the applicant have a sex operation by her 41st birthday which was a mere 12 months away. Martin then wrote to Ronald again at a later stage saying that he had received another call from the applicant and that she sounded more disillusioned and down. The Court heard that the applicant had suggested to Martin that she was entitled to the financial support she was seeking and that it was all her parents fault and inferred that she would take her life.

The applicant also had left a written letter to her friends which she referred to, in evidence, as her suicide note.

After the applicant was arrested and placed in involuntary care after the proposed attempt on her father’s life, the applicant enjoyed some stability after that experience and for a number of years and lived in a hotel was also continuing to receive financial support from her family with a weekly income and further medical expenses including psychiatric care.

In its determination of the case, the Court considered whether the deceased had a moral duty to provide for Jessica. Notwithstanding the dysfunctional family relationship that had been experienced by all the decades, the Court ultimately determined that the conduct of Jessica was not enough to disentitle her from provision.

Her Honour noted that there was no doubt that Jessica genuinely believed that her gender dysphoria, which was diagnosed by the psychiatrist, was the root cause of the breakdown in a relationship between herself and her parents (para 157) also noting that Jessica contributed substantially to that dysfunction.

In a helpful summary of conduct by Her Honour, the Court said:

Jessica’s family did not discover that she was transgender until she was living in the USA.  It came as a complete shock to them.  They may not have understood and embraced that fact, as she would have wished them to, but they continued to support her financially after they discovered it.  They did not simply cut her off.

When she returned to Melbourne after her time in the USA, she was given a job in one of the family businesses.  She started receiving a regular allowance in November 1998, which has been increased over the years, whenever Jessica asked for it.

By the late 1990s, Jessica had started making increased demands for substantial amounts of money from her father, clearly viewing it as her entitlement and birthright to receive millions of dollars. 

She announced in a letter dated 2 June 1999 that she did not want any contact with her parents in the future, and that ‘this ends a family relationship.  Dad was never the father I needed.  Mum was a coward. … My birthright is fair and my offer is reasonable.’    This letter preceded the 6 August 1999 letter from Peter, which she said was so devastating to her because it said that her parents wanted no further contact with her.   Contrary to the picture she tried to paint to the court, she was the one who initiated the ‘divorce’ from her parents.

Jessica’s 2 June letter was sent shortly before she travelled to Tajikistan, hoping to join the Northern Alliance.  She was well aware that her conduct in going to the Middle East would be hurtful to her parents and their beliefs, just as she had been aware that going to live in Germany would be hurtful to her father.  She took insufficient funds to support herself whilst in the Middle East and, as had happened before, demanded that her family rescue her financially (which they did).

She seriously proposed to kill Peter in August 1999.  She acquired a cross-bow for that very purpose.  She was only thwarted in her plans to do so by the fact that Peter learned of her plans and contacted the police.  The fact that she may have intended to kill herself too does not detract from the extreme seriousness of her conduct.

Well aware that her parents were very private and conservative people, she frequently and deliberately discussed private family matters with their friends, acquaintances, staff and members of their synagogue.   She wanted to embarrass her family,  publicly and privately, to punish them for not accepting that she was transgender, and also to try to force them into paying what she regarded as her entitlement.

Notwithstanding Jessica’s behaviour, including her plans to kill him, Peter continued to support her financially.  The weekly allowance that he provided from 1999 onwards was generous enough that she did not need to go and look for work.  If she ran up credit card debts, or needed additional financial help, he provided it.  The only thing Peter was not prepared to pay for was the gender reassignment surgery which Jessica wanted.  So even though she still had reasonable earning capacity after her discharge from hospital in 1999, Jessica chose not to seek employment for more than 20 years.  By continuing to support Jessica for all those years, Peter allowed her to become financially dependent on him, and to lose much, if not all, of her capacity for employment.  That is the most important consideration in my conclusion that Peter did owe a moral duty towards Jessica, notwithstanding her attitude and behaviour over the years.

Courts have long recognised that family disharmony or dysfunction, and a parent’s disappointment in a child, are commonplace in family relationships; such matters are only one of the factors to be considered by the court under the Act. Accordingly, I do not accept the defence submission that any moral duty that Peter had to provide for Jessica was nullified by their estrangement, as well as by her character and conduct towards Peter and the rest of her family. However, those factors have undoubtedly reduced the extent of Peter’s moral duty, notwithstanding the size of his estate.

Paras 160-168

In determining what financial resources and earning capacity the applicant had, the Court noted that the applicant would not be likely to gain meaningful employment in areas of commerce in which she previously worked after being out of employment so many years and now being aged 61 years. The Court noted that if she were indeed to secure employment it would be unlikely to be highly paid (para 193). The applicant also had no meaningful assets in her own name.

Neither of Judith of Ronald provided any evidence in respect of specific financial resources, earning capacity or financial need. Accordingly, the Court was at liberty to assume that Judith and Ronald were of no further need.

At the commencement of the trial, the applicant sought a lump sum payment of $5.56 million plus costs from the estate; this was made up for $2.5 million for the purchase of a freehold property in Malvern or Armadale, a lump sum of foot $2.4 million to invest and provide for her weekly allowance and a Further capital sum of $660,000 for other expenses including gender reassignment surgery.

By the end of the trial, the applicant sought somewhere between $3.7 million and $5.56 million.

In resolution of the dispute, the court made further provision for the applicant as follows:

  • a lump-sum of $2.4 million for her to invest as the applicant chooses;
  • $600,000 for the purchase of a modest apartment;
  • an amount of $100,000 for the costs of and incidental to her gender reassignment surgery; and
  • $100,000 for miscellaneous items (which was to include the purchase of a vehicle and running costs and paying off credit card debts)

Total of $3.2 million ordered

You can read the full case here.

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